<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 14, 1998.
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
P&L COAL HOLDINGS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1222 13-4004153
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NUMBER)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
---------------
701 MARKET STREET
ST. LOUIS, MO 63101-1826
(314) 342-3400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
JEFFERY L. KLINGER, ESQ.
P&L COAL HOLDINGS CORPORATION
701 MARKET STREET
ST. LOUIS, MO 63101-1826
(314) 342-3400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
WITH A COPY TO:
RISE B. NORMAN, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NY 10017
(212) 455-2000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box: [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
---------------
If this form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
---------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER NOTE OFFERING PRICE(1) FEE
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
8 7/8% Series B Senior
Notes due 2008........ $400,000,000 100% $400,000,000 $118,000
- --------------------------------------------------------------------------------------
Guarantees of 8 7/8%
Series B Senior Notes
due 2008(2)........... $400,000,000 (3) (3) (3)
- --------------------------------------------------------------------------------------
9 5/8% Series B Senior
Subordinated Notes
due 2008.............. $500,000,000 100% $500,000,000 $147,500
- --------------------------------------------------------------------------------------
Guarantees of 9 5/8%
Series B Senior
Subordinated Notes
due 2008(2)........... $500,000,000 (3) (3) (3)
- --------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee.
(2) See inside facing page for table of additional registrant guarantors.
(3) Pursuant to Rule 457(n), no separate filing fee is required for the
guarantees.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
TABLE OF ADDITIONAL REGISTRANT GUARANTORS
<TABLE>
<CAPTION>
STATE OR
OTHER ADDRESS INCLUDING ZIP
JURISDICTION CODE, AND TELEPHONE
EXACT NAME OF OF I.R.S. NUMBER INCLUDING AREA
REGISTRANT GUARANTOR INCORPORATION EMPLOYER CODE, OF REGISTRANT
AS SPECIFIED OR IDENTIFICATION GUARANTOR'S PRINCIPAL
IN ITS CHARTER ORGANIZATION NUMBER EXECUTIVE OFFICES
- ----------------------- ------------- -------------- ----------------------------------------
<S> <C> <C> <C>
Affinity Mining Company West Virginia 25-1207512 800 Laidley Tower, P.O. Box 1233
Charleston, WV 25324, (304-344-0300)
Arid Operations, Inc. Delaware 84-1199578 14062 Denver West Parkway,
Suite 110
Golden, CO 80401-3301, (760-337-5552)
Big Sky Coal Company Delaware 81-0476071 1300 S. Yale
Flagstaff, AZ 86001, (520-774-5253)
Blackrock First Capital West Virginia 55-0695451 800 Laidley Tower, P.O. Box 1233
Corporation Charleston, WV 25324, (304-344-0300)
Bluegrass Coal Company Delaware 43-1540253 701 Market Street, Suite 710
St. Louis, MO 63101-1826, (314-342-3400)
Caballo Coal Company Delaware 83-0309633 Caller Box 3037
Gillette, WY 82717, (307-687-6900)
Charles Coal Company Delaware 04-2698757 800 Laidley Tower, P.O. Box 1233
Charleston, WV 25324, (304-344-0300)
Coal Properties Corp. Delaware 04-2702708 800 Laidley Tower, P.O. Box 1233
Charleston, WV 25324, (304-344-0300)
Colony Bay Coal Company West Virginia 55-0604613 800 Laidley Tower
P.O. Box 1233
Charleston, WV 25324, (304-344-0300)
Cook Mountain Coal Com- Delaware 55-0732291 800 Laidley Tower, P.O. Box 3506
pany Charleston, WV 25324, (304-344-0300)
Cottonwood Land Company Delaware 43-1721982 301 N. Memorial Drive, Suite 334
St. Louis, MO 63102, (314-342-7610)
Darius Gold Mine Inc. Delaware 13-2899722 14062 Denver West Parkway
Suite 110
Golden, CO 63102, (303-271-3600)
EACC Camps, Inc. West Virginia 25-0600150 800 Laidley Tower, P.O. Box 1233
Charleston, WV 25324, (304-344-0300)
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
STATE OR
OTHER ADDRESS INCLUDING ZIP
JURISDICTION CODE, AND TELEPHONE
EXACT NAME OF OF I.R.S. NUMBER INCLUDING AREA
REGISTRANT GUARANTOR INCORPORATION EMPLOYER CODE, OF REGISTRANT
AS SPECIFIED OR IDENTIFICATION GUARANTOR'S PRINCIPAL
IN ITS CHARTER ORGANIZATION NUMBER EXECUTIVE OFFICES
- ------------------------ ------------- -------------- -------------------------------------------
<S> <C> <C> <C>
Eastern Associated Coal West Virginia 25-1125516 800 Laidley Tower, P.O. Box 1233
Corp. Charleston, WV 25324, (304-344-0300)
Eastern Royalty Corp. Delaware 04-2698759 800 Laidley Tower, P.O. Box 1233
Charleston, WV 25324, (304-344-0300)
Gold Fields Chile, S.A. Delaware 13-3004607 14062 Denver West Parkway
Suite 110
Golden, CO 63102, (303-271-3600)
Gold Fields Mining Delaware 36-2079582 14062 Denver West Parkway
Corporation Suite 110
Golden, CO 63102, (303-271-3600)
Gold Fields Operating Delaware 22-2204381 14062 Denver West Parkway
Co.--Ortiz Suite 110
Golden, CO 80401-3301, (303-271-3600)
Grand Eagle Mining, Inc. Kentucky 61-1250622 19070 Highway 1078 South
Henderson, KY 42420, (502-546-7926)
Hayden Gulch Terminal, Delaware 86-0719481 P.O. Box 882323
Inc. Steamboat Springs, CO 80488, (314-342-3400)
Independence Material Delaware 43-1750064 701 Market Street, Suite 840
Handling Company St. Louis, MO 63101-1826, (314-342-3400)
Interior Holdings Corp. Delaware 43-1700075 701 Market Street, Suite 730
St. Louis, MO 63101-1826, (314-342-3400)
James River Coal Delaware 55-0643770 701 Market Street, Suite 712
Terminal Company St. Louis, MO 63101-1826, (314-342-7600)
Juniper Coal Company Delaware 43-1744675 701 Market Street, Suite 716
St. Louis, MO 63101-1826, (314-342-3400)
Kayenta Mobile Home Delaware 86-0773596 1300 S. Yale
Park, Inc. Flagstaff, AZ 86001, (520-774-5253)
Martinka Coal Company Delaware 55-0716084 815 Laidley Tower, PO Box 1233
Charleston, WV 25324-0004, (304-344-0300)
Midco Supply and Illinois 43-6042249 P.O. Box 14542
Equipment Corporation St. Louis, MO 63178, (314-342-3400)
Midwest Coal Resources, Delaware 61-1222931 1951 Barrett Court, Suite 215
Inc. Henderson, KY 42420, (502-827-0800)
Mountain View Coal Delaware 25-1474206 800 Laidley Tower, P.O. Box 1233
Company Charleston, WV 25334-0004, (304-344-0300)
North Page Coal Corp. West Virginia 31-1210133 800 Laidley Tower, P.O. Box 1233
Charleston, WV 25334-0004, (304-344-0300)
Ohio County Coal Company Kentucky 61-1176239 19070 Highway 1078 South
Henderson, KY 42420, (502-546-7561)
Patriot Coal Company, Delaware 61-1258748 19070 Highway 1078 South
L.P. Henderson, KY 42420, (502-546-9430)
Peabody America, Inc. Delaware 93-1116066 701 Market Street, Suite 720
St. Louis, MO 63101-1826, (303-271-3600)
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
ADDRESS INCLUDING ZIP
CODE, AND TELEPHONE
EXACT NAME OF STATE OR OTHER I.R.S. NUMBER INCLUDING AREA
REGISTRANT GUARANTOR JURISDICTION OF EMPLOYER CODE, OF REGISTRANT
AS SPECIFIED INCORPORATION IDENTIFICATION GUARANTOR'S PRINCIPAL
IN ITS CHARTER OR ORGANIZATION NUMBER EXECUTIVE OFFICES
- ------------------------ --------------- -------------- -----------------------------------------
<S> <C> <C> <C>
Peabody Coal Company Delaware 13-2606920 800 Laidley Tower
Charleston, WV 25301, (502-827-0800)
Peabody COALSALES Delaware 43-1610419 701 Market Street, Suite 830
Company St. Louis, MO 63101-1826, (314-342-7600)
Peabody COALTRADE, Inc. Delaware 43-1666743 4405 Cox Road, Suite 220
Glen Allen, VA 23050-3395, (804-935-0345)
Peabody Development Delaware 43-1265557 301 North Memorial Drive
Company St. Louis, MO 63102, (314-342-7610)
Peabody Energy Delaware 43-1753832 701 Market Street, Suite 830
Solutions, Inc. St. Louis, MO 63101, (314-342-7600)
Peabody Holding Company, New York 13-2871045 701 Market Street, Suite 700
Inc. St. Louis, MO 63101-1826, (314-342-3400)
Peabody Natural Delaware 51-0332232 701 Market Street, Suite 718
Resources Company St. Louis, MO 63101, (314-342-3400)
Peabody Terminals, Inc. Delaware 31-1035824 701 Market Street, Suite 712
St. Louis, MO 63101, (314-342-3400)
Peabody Venezuela Coal Delaware 43-1609813 701 Market Street, Suite 715
Corp. St. Louis, MO 63101-1826, (314-342-3400)
Peabody Western Coal Delaware 86-0766626 1300 S. Yale
Company Flagstaff, AZ 86001, (520-774-5253)
Pine Ridge Coal Company Delaware 55-0737187 810 Laidley Tower
Charleston, WV 25324, (304-344-0300)
Powder River Coal Delaware 43-0996010 1013 East Boxelder
Company Gillette, WY 82718, (307-687-6900)
Rio Escondido Coal Corp. Delaware 74-2666822 P.O. Box 66746
St. Louis, MO 63166, (314-342-3400)
Seneca Coal Company Delaware 84-1273892 1300 S. Yale
Flagstaff, AZ 86001, (520-774-5253)
Sentry Mining Company Delaware 43-1540251 701 Market Street, Suite 700
St. Louis, MO 63101-1826, (314-342-3400)
Snowberry Land Company Delaware 43-1721980 301 N. Memorial Drive, Suite 333
St. Louis, MO 63102, (314-342-3400)
Sterling Smokeless Coal West Virginia 55-0463558 800 Laidley Tower, P.O. Box 1233
Company Charleston, WV 25324, (314-344-0300)
Thoroughbred, L.L.C. Delaware 43-1686687 701 Market Street, Suite 815
St. Louis, MO 63101-1826, (314-342-3400)
</TABLE>
iii
<PAGE>
EXPLANATORY NOTE
THIS REGISTRATION STATEMENT COVERS THE REGISTRATION OF AN AGGREGATE
PRINCIPAL AMOUNT OF $400,000,000 OF 8 7/8% SERIES B SENIOR NOTES DUE 2008 (THE
"SENIOR EXCHANGE NOTES") AND AN AGGREGATE PRINCIPAL AMOUNT OF $500,000,000 OF
9 5/8% SERIES B SENIOR SUBORDINATED NOTES DUE 2008 (THE "SENIOR SUBORDINATED
EXCHANGE NOTES" AND TOGETHER WITH THE SENIOR EXCHANGE NOTES, THE "EXCHANGE
NOTES") OF P&L COAL HOLDINGS CORPORATION (THE "COMPANY") THAT MAY BE EXCHANGED
FOR EQUAL PRINCIPAL AMOUNTS OF THE COMPANY'S OUTSTANDING 8 7/8% SENIOR NOTES
DUE 2008 AND 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008, RESPECTIVELY (THE
"EXCHANGE OFFERS"). THIS REGISTRATION STATEMENT ALSO COVERS THE REGISTRATION
OF THE EXCHANGE NOTES FOR RESALE BY LEHMAN BROTHERS INC. IN MARKET-MAKING
TRANSACTIONS. THE COMPLETE PROSPECTUS RELATING TO THE EXCHANGE OFFERS (THE
"EXCHANGE OFFER PROSPECTUS") FOLLOWS IMMEDIATELY AFTER THIS EXPLANATORY NOTE.
FOLLOWING THE EXCHANGE OFFER PROSPECTUS ARE CERTAIN PAGES OF THE PROSPECTUS
RELATING SOLELY TO SUCH MARKET-MAKING TRANSACTIONS (THE "MARKET-MAKING
PROSPECTUS"), INCLUDING ALTERNATE FRONT AND BACK COVER PAGES, A SECTION
ENTITLED "RISK FACTORS--TRADING MARKET FOR THE EXCHANGE NOTES" TO BE USED IN
LIEU OF THE SECTION ENTITLED "RISK FACTORS--LACK OF PUBLIC MARKET FOR THE
EXCHANGE NOTES," AND ALTERNATE SECTIONS ENTITLED "USE OF PROCEEDS" AND "PLAN
OF DISTRIBUTION". IN ADDITION, THE MARKET-MAKING PROSPECTUS WILL NOT INCLUDE
THE FOLLOWING CAPTIONS (OR THE INFORMATION SET FORTH UNDER SUCH CAPTIONS) IN
THE EXCHANGE OFFER PROSPECTUS: "PROSPECTUS SUMMARY--THE EXCHANGE OFFERS",
"RISK FACTORS--CONSEQUENCES OF FAILURE TO EXCHANGE", "THE SENIOR EXCHANGE
OFFER", "THE SENIOR SUBORDINATED EXCHANGE OFFER", AND "CERTAIN FEDERAL INCOME
TAX CONSEQUENCES". ALL OTHER SECTIONS OF THE EXCHANGE OFFER PROSPECTUS WILL BE
INCLUDED IN THE MARKET-MAKING PROSPECTUS.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED , 1998
PRELIMINARY PROSPECTUS
PEABODY
P&L COAL HOLDINGS CORPORATION
OFFERS TO EXCHANGE $400,000,000 OF ITS
8 7/8% SERIES B SENIOR NOTES DUE 2008
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
FOR $400,000,000 OF ITS OUTSTANDING
8 7/8% SENIOR NOTES DUE 2008
AND $500,000,000 OF ITS
9 5/8% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
FOR $500,000,000 OF ITS OUTSTANDING
9 5/8% SENIOR SUBORDINATED NOTES DUE 2008
THE EXCHANGE OFFERS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
1998,
UNLESS EXTENDED.
----------
P&L Coal Holdings Corporation ("Peabody" or the "Company"), hereby offers,
upon the terms and subject to the conditions set forth in this Prospectus and
the accompanying Letters of Transmittal, to exchange an aggregate of up to
$400,000,000 principal amount of 8 7/8% Series B Senior Notes due 2008 (the
"Senior Exchange Notes") and an aggregate of up to $500,000,000 principal
amount of 9 5/8% Series B Senior Subordinated Notes due 2008 (the "Senior
Subordinated Exchange Notes" and together with the Senior Exchange Notes, the
"Exchange Notes") of the Company for an identical face amount of the issued and
outstanding 8 7/8% Senior Notes due 2008 (the "Old Senior Notes" and together
with the Senior Exchange Notes, the "Senior Notes") and 9 5/8% Senior
Subordinated Notes due 2008 (the "Old Senior Subordinated Notes" and together
with the Senior Subordinated Exchange Notes, the "Senior Subordinated Notes",
and together with the Old Senior Notes, the "Old Notes") respectively, of the
Company from the Holders (as defined) thereof. As of the date of this
Prospectus, there is $400,000,000 aggregate principal amount of the Old Senior
Notes and $500,000,000 aggregate principal amount of the Old Senior
Subordinated Notes outstanding. The terms of the Senior Exchange Notes and of
the Senior Subordinated Exchange Notes are identical in all material respects
to the Old Senior Notes and to the Old Senior Subordinated Notes respectively,
except that the Exchange Notes have been registered under the Securities Act of
1933, as amended (the "Securities Act"), and therefore will not bear legends
restricting their transfer and will not contain certain provisions providing
for an increase in the interest rate on the Old Senior Notes and on the Old
Senior Subordinated Notes under certain circumstances described in the Senior
Notes Registration Rights Agreement (as defined) and in the Senior Subordinated
Notes Registration Rights Agreement (as defined) respectively, which provisions
will terminate as to all of the Senior Notes and Senior Subordinated Notes
(collectively, the "Notes") upon the consummation of the Senior Note Exchange
Offer (as defined) and the Senior Subordinated Note Exchange Offer (as defined,
collectively, the "Exchange Offers").
Interest on the Exchange Notes will be payable semi-annually on May 15 and
November 15 of each year, commencing November 15, 1998. Prior to May 15, 2003,
each series of the Exchange Notes will be redeemable at a redemption price
equal to 100% of the principal amount thereof plus either the Senior Notes Make
Whole Premium (as defined) or the Senior Subordinated Notes Make Whole Premium
(as defined), plus, to the extent not included in either the Senior Notes Make
Whole Premium or the Senior Subordinated Notes Make Whole Premium, accrued and
unpaid interest and Liquidated Damages (as defined), if any, to the date of
redemption. On or after May 15, 2003, each series of Exchange Notes will be
subject to redemption at the option of the Company, in whole or in part, at the
redemption prices set forth herein, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of redemption. In addition, at
any time prior to May 15, 2001, the Company may, at its option, redeem up to
35% of the aggregate principal amount of each series of the Exchange Notes at a
redemption price equal to (i) 108.875% of the principal amount of the Senior
Exchange Notes and (ii) 109.675% of the principal amount of the Senior
Subordinated Exchange Notes, in each case plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of redemption, with the net
proceeds of one or more Equity Offerings (as defined); provided that, in each
case, at least 65% of the aggregate principal amount of Senior Exchange Notes
and at least 65% of the aggregate principal amount of Senior Subordinated
Exchange Notes remain outstanding immediately after the occurrence of each such
redemption. See "Description of the Senior Exchange Notes--Optional Redemption"
and "Description of the Senior Subordinated Exchange Notes--Optional
Redemption."
Upon the occurrence of a Change of Control (as defined), the holders of each
series of the Exchange Notes (the "Holders") will have the right to require the
Company to repurchase such series of Exchange Notes, in whole or in part, at a
price equal to 101% of the respective principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase. See "Description of the Senior Exchange Notes--Repurchase at the
Option of Holders--Change of Control" and "Description of the Senior
Subordinated Exchange Notes--Repurchase at the Option of Holders--Change of
Control."
The Senior Exchange Notes will be general unsecured obligations of the
Company, will rank senior in right of payment to all subordinated Indebtedness
(as defined) of the Company and will rank pari passu in right of payment with
all current and future unsecured senior Indebtedness of the Company. All
borrowings under the Senior Credit Facilities (as defined) are secured by a
first priority Lien (as defined) on certain of the assets of the Company and
its Domestic Subsidiaries (as defined). Certain of the Company's current and
future Restricted Subsidiaries (as defined) that are Domestic Subsidiaries (the
"Guarantors") will jointly and severally guarantee the Senior Exchange Notes on
a senior basis (the "Senior Subsidiary Guarantees"). As of March 31, 1998,
after giving pro forma effect to the Transactions (as defined), approximately
$920.0 million would have been outstanding under the Senior Credit Facilities.
See "Capitalization," "Description of the Senior Exchange Notes", "Description
of the Senior Subordinated Exchange Notes" and "Description of Certain
Indebtedness."
The Senior Subordinated Exchange Notes will be general unsecured obligations
of the Company, subordinate in right of payment to all existing and future
Senior Debt (as defined) of the Company, including all borrowings under the
Senior Credit Facilities. The Guarantors will jointly and severally guarantee
the Senior Subordinated Exchange Notes on a senior subordinated basis (the
"Subordinated Subsidiary Guarantees" and, together with the Senior Subsidiary
Guarantees, the "Subsidiary Guarantees"). As of March 31, 1998, after giving
pro forma effect to the Transactions, the Company would have had approximately
$2,098.0 million of Indebtedness outstanding (excluding $293.9 million of non-
recourse indebtedness of Citizens Power (as defined)), of which $1,318.8
million would have been Senior Debt (excluding letters of credit). See
"Capitalization" and "Description of the Senior Subordinated Exchange Notes--
Subordination."
(continued on next page)
<PAGE>
(continued from previous page)
The Old Senior Notes and Old Senior Subordinated Notes were issued and sold
on May 18, 1998 in a transaction not registered under the Securities Act in
reliance upon an exemption from the registration requirements thereof. In
general, the Old Senior Notes and Old Senior Subordinated Notes may not be
offered or sold unless registered under the Securities Act, except pursuant to
an exemption from, or in a transaction not subject to, the Securities Act. The
Exchange Notes are being offered hereby in order to satisfy certain
obligations of the Company contained in the Senior Note Registration Rights
Agreement and the Senior Subordinated Note Registration Rights Agreement.
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission") set forth in no-action letters issued to third
parties, the Company believes that the Senior Exchange Notes issued pursuant
to the Senior Note Exchange Offer and in exchange for Old Senior Notes and
that the Senior Subordinated Exchange Notes issued pursuant to the Senior
Subordinated Note Exchange Offer in exchange for Old Senior Subordinated Notes
may be offered for resale, resold or otherwise transferred by any holder
thereof (other than any such holder that is an "affiliate" of the Company
within the meaning of Rule 405 promulgated under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such Exchange Notes are acquired in the ordinary
course of such holder's business, such holder has no arrangement with any
person to participate in the distribution of such Exchange Notes, and neither
such holder nor any such other person is engaging in or intends to engage in a
distribution of such Exchange Notes. However, the Company has not sought, and
does not intend to seek, its own no-action letter, and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offers. This Prospectus, as it may be amended or
supplemented, may be used by a participating non-affiliated broker-dealer in
connection with resales of the Exchange Notes where such Exchange Notes were
acquired by such participating broker-dealer as a result of market-making
activities or other trading activities. Notwithstanding the foregoing, each
broker-dealer that receives Senior Exchange Notes or Senior Subordinated
Exchange Notes for its own account pursuant to the Exchange Offers, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. The Letters of Transmittal state that by so acknowledging
and by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act. See
"Plan of Distribution". Any person participating in the Exchange Offers who
does not acquire the Exchange Notes in the ordinary course of business must
comply with the registration and prospectus delivery requirements of the
Securities Act.
The Old Notes are designated for trading in the Private Offerings, Resales
and Trading through Automated Linkages ("PORTAL") market. There is no
established trading market for the Exchange Notes. The Company does not
currently intend to list the Exchange Notes on any securities exchange or to
seek approval for quotation through any automated quotation system.
Accordingly, there can be no assurance as to the development or liquidity of
any market for the Exchange Notes.
The Exchange Offers are not conditioned upon any minimum aggregate principal
amount of Old Senior Notes or Old Senior Subordinated Notes being tendered for
exchange. The date of acceptance and exchange of the Old Senior Notes and the
Old Senior Subordinated Notes (the "Exchange Date") will be the fourth
business day following the Expiration Date (as defined). Old Senior Notes and
Old Senior Subordinated Notes tendered pursuant to the Exchange Offers may be
withdrawn at any time prior to the Expiration Date. The Company will not
receive any proceeds from the Exchange Offers. The Company will pay all of the
expenses incident to the Exchange Offers.
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION
WITH AN INVESTMENT IN THE EXCHANGE NOTES, SEE "RISK FACTORS" BEGINNING ON PAGE
19.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1998
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including the notes thereto, appearing
elsewhere in this Prospectus. P&L Coal Holdings Corporation and its
subsidiaries, including predecessors, are collectively referred to herein as
"Peabody" or the "Company" unless the context otherwise requires. The estimates
of the Company's proven and probable reserves as of October 1, 1996 set forth
herein have been reviewed by the John T. Boyd Company ("Boyd") as of such date.
All references to "tons" are references to short tons and all references to low
sulfur coal are references to coal with a sulfur content of 1% or less by
weight. For definitions of certain coal-related terms see "Coal Industry
Overview" and "Glossary of Selected Terms." References to years relate to
calendar years, unless otherwise noted. The market data presented herein are
based upon estimates by management of the Company, utilizing various third
party sources where available. While management believes that such estimates
are reasonable and reliable, in certain cases, such estimates cannot be
verified by information available from independent sources. Accordingly, no
assurance can be given that such market data are accurate in all material
respects. Prospective investors should carefully consider the information set
forth under the heading "Risk Factors."
THE COMPANY
OVERVIEW
Peabody is the largest and one of the fastest growing private sector coal
producers in the world. Over the last seven years, management has transformed
the Company from a largely high sulfur, high cost domestic coal producer to a
predominantly low sulfur, low cost international coal company. In fiscal 1998,
the Company sold 167.5 million tons of coal worldwide, which were used to
generate more than 9% of the total electricity produced in the United States.
Based on the most recent data available, the Company's coal satisfied
approximately 2.5% of the world's 1995 electricity demands. Peabody's U.S.
market share was approximately 14.4% in 1997, approximately twice the market
share of its nearest competitor. Peabody has approximately 9.4 billion tons of
proven and probable coal reserves, which is the largest reserve base of any
private sector coal producing company in the United States. In fiscal 1998, the
Company generated pro forma operating revenues of more than $2.2 billion and
pro forma EBITDA (as defined) of $439.0 million.
The Company currently owns and operates 24 mines in the United States and
three mines in New South Wales, Australia and also sells coal produced by
third-party contractors from reserves controlled by the Company. In addition to
its U.S. and Australian coal businesses, the Company is also one of the leading
marketers of power in the United States through Citizens Power LLC (together
with its direct and indirect subsidiaries, "Citizens Power"), has a small gold
and copper exploration concession in Chile and has an equity interest in a
southern California landfill project. Peabody also has joint venture interests
in Black Beauty Coal Company ("Black Beauty"), Indiana's largest coal producer,
in Dominion Terminal Associates, one of the largest U.S. coal export terminals
and in certain other coal transportation facilities.
The Company produces approximately 72% of its coal from the western United
States, compared to approximately 23% from the eastern United States and
approximately 5% from Australia. Peabody's coal production in the western
United States has grown from 37 million tons in 1990 to 114 million tons in
fiscal 1998. The Company's highly productive, primarily non-union western
operations produce low sulfur coal, which is attractive to utilities operating
under restrictions of the Clean Air Act of 1970 (the "Clean Air Act").
Peabody's large and diverse customer base includes more than 150 customers in
17 countries. In 1997, Peabody supplied 92% of its U.S. production to U.S.
electric utilities, 5% to the export market and 3% to the U.S. industrial
sector.
Peabody has a large portfolio of long-term coal supply agreements ("CSAs").
In fiscal 1998, 92% of Peabody's sales volume was sold under CSAs. As of March
31, 1998, the Company had CSAs for more than 1.0
1
<PAGE>
billion tons of coal, with terms ranging from one to 17 years and with an
average volume-weighted remaining term of 5.7 years. As its CSAs expire, the
Company intends to negotiate new contracts in order to maintain its high
percentage of volume sold through CSAs and low percentage of volume sold in the
spot market.
Over the last ten years, coal consumption in the United States has generally
experienced steady annual growth, reaching a record level of approximately 1.1
billion tons in 1996. This steady growth in coal consumption is correlated to
similar growth in the electric generation industry that in 1997 accounted for
more than 87% of domestic coal consumption. In 1997, coal-fired power plants
generated approximately 57% of the nation's electricity, followed by nuclear
(20%), hydroelectric (11%) and gas-fired (9%) facilities. Furthermore, because
coal is one of the least expensive and most abundant and reliable resources for
the production of electricity, the Company believes coal will become
increasingly important as electricity markets are deregulated in the United
States and privatized around the world. See "Coal Industry Overview."
A substantial majority of the Company's equity is owned by Lehman Brothers
Merchant Banking Partners II L.P., LB I Group Inc. and their affiliated co-
investors (collectively, "Lehman Merchant Banking"), each of which is an
affiliate of Lehman Brothers Inc. ("Lehman Brothers" or the "Initial
Purchaser").
COMPETITIVE STRENGTHS
The Company believes that it benefits from the following competitive
strengths, which have enabled it to become the largest private sector producer
of coal in the world:
Market Leader. The Company is the largest private sector producer of coal in
the world with a market share of 14.4% in the United States in fiscal 1998 and
a market share of approximately 3.0% worldwide in 1995, according to the latest
available data. In 1997, the Company had a 35% market share in the Powder River
Basin, the largest and fastest growing U.S. coal production region and the
United States' largest known source of low cost, low sulfur coal. The Company
also has the largest reserve base of any U.S. coal producer, with approximately
9.4 billion tons of proven and probable coal reserves which, based on current
rates of production, the Company believes could last for more than 50 years.
Diversity of Operations and Customers. The Company's mining operations are
broad and diverse and serve a wide range of customers. The Company owns and
operates 24 U.S. mines and sells coal to more than 150 U.S. power plants,
including many of the largest U.S. utilities. The Company also exports coal to
customers in 15 foreign countries. Approximately 72% of the Company's coal
production comes from the western United States, while 10% comes from
Appalachia, 13% from the Illinois Basin and 5% from Australia. Because of the
geographical mix of its reserves, the Company can source coal from several
regions, increasing its ability to meet the various needs of its customers and
reducing customers' transportation costs. Through Citizens Power, the Company
engages in power and energy sales and trading, transaction and asset
restructuring and fuel and power integration.
High Percentage of Low Sulfur Coal. The Clean Air Act Amendments of 1990 (the
"Clean Air Act Amendments") require electric utilities to reduce sulfur dioxide
("SO/2/") and other acidic emissions from coal-fired power plants in a two-
phase process that began in 1995 ("Phase I") and will further reduce emissions
by 2000 ("Phase II"). Utilities may choose to meet these standards by (i)
burning low sulfur coal or other low sulfur fuels, (ii) installing flue gas
desulfurization equipment ("scrubbers") or (iii) purchasing or trading emission
allowances. Power plants that do not use their full allotment of emission
allowances provided under the Clean Air Act Amendments can sell their extra
emission allowances on the open market or use them at their other facilities to
offset emissions from higher sulfur coal. To date, the majority of affected
utilities have chosen to switch to low sulfur coal at the expense of high
sulfur coal due to the high cost of scrubbers and the availability of low cost,
low sulfur coal in the Powder River Basin. According to the Department of
Energy, high sulfur coal production declined 17.6% from 1990 to 1996, while low
sulfur coal production increased 18.0%
2
<PAGE>
over the same period. The Company has increased its sales of low sulfur coal
from 52.6 million tons to 135.5 million tons during the same period of time. As
of October 1, 1996, 47% of Peabody's proven and probable coal reserves was of
low sulfur coal and 81% of its 1998 coal sales was of low sulfur coal. As a
result of its significant presence in the Powder River Basin, which has very
low sulfur coal, Peabody is well positioned to benefit from the impact of the
Clean Air Act Amendments. Over 57% of Peabody's total production and 55% of
sales come from the Powder River Basin, where Peabody has a 35% market share.
Resource Data International Inc. ("RDI") estimates that production from coal
mines in the Powder River Basin is expected to grow from 272.7 million tons to
421.3 million tons between 1997 and 2015.
Portfolio of Long-Term Contracts. Peabody has a large portfolio of CSAs. As
of March 31, 1998, the Company had CSAs for more than 1.0 billion tons of coal,
with terms ranging from one to 17 years and with an average volume-weighted
remaining term of 5.7 years. As a result, its exposure to any fluctuation in
spot market prices is relatively limited. The Company has historically replaced
CSAs as they have expired.
Efficient Operations. Through its high production volume, centralized
information technology system, marketing programs and land management
functions, the Company is able to achieve operating and corporate efficiencies.
From fiscal 1990 to fiscal 1998, the Company has increased its sales volume
from 93.3 million tons to 167.5 million tons (including recent acquisitions)
while simultaneously reducing the number of employees in its coal operations
from 10,700 to 7,500. During this period, the Company increased its average
productivity (in terms of coal production per manshift) by 179% in the United
States and, since the acquisition of Peabody Resources Limited ("Peabody
Resources") in 1993, by 37% in Australia. According to the U.S. Department of
Labor, the Company's four Powder River Basin mines were the four most
productive coal mines in the United States in 1996 as measured in tons per
manshift.
Innovative Research and Development. Peabody emphasizes research and
development of new technologies in the coal industry. Since the Company is one
of the largest users of equipment in the industry, manufacturers work with it
to design and to produce equipment that will bring added value to the coal
industry. Some of the Company's recent efforts have led to several innovations,
including state-of-the-art haul trucks, the adaptation of global positioning
satellite technology and nuclear quality analysis equipment. As a result of
these efforts, many of the Company's mines have become among the most
productive in the industry.
Experienced Management. Irl F. Engelhardt, who became Chief Executive Officer
of the Company in 1991, and other members of the senior management team have a
proven record of increasing productivity, making strategic acquisitions and
developing and maintaining strong customer relations. The management team,
whose members have an average of 19 years experience in the coal industry and
15 years experience with the Company, has transformed the Company into a
predominantly low sulfur, low cost international coal company.
STRATEGY
Anticipating the effect of the Clean Air Act Amendments, Peabody endeavored
to become the leading low sulfur coal producer in the United States. In 1990,
low sulfur coal constituted only 56% of the Company's sales volume; by 1998, it
had increased to 81%. In 1990, 77% of the Company's U.S. coal production came
from union mines; by 1998, the percentage had dropped to 35%. The Company has
concentrated on controlling costs, and the average cost per ton declined 25%
during the same period, aided by the expansion of its low-cost Powder River
Basin operations. The Company also anticipated the growth in international coal
demand, primarily in Asia and the Pacific Rim. This anticipated growth was the
impetus for the acquisition of Peabody Resources in 1993, a leading Australian
coal producer. To capitalize on U.S. electricity deregulation and the
convergence of U.S. energy markets, the Company acquired Citizens Power, a
leading power trading and energy contract restructuring firm, in 1997.
3
<PAGE>
As the chart below shows, the Company has demonstrated the ability to
transform itself in response to changing market conditions.
TRANSFORMATION OF PEABODY 1990 TO 1998(/1/)
<TABLE>
<CAPTION>
1990 1998 % CHANGE
------- ----- --------
<S> <C> <C> <C>
Sales Volume (mm tons)............................. 93.3 167.5 80 %
U.S. Market Share(/2/)............................. 9.1% 14.4% 58
Low Sulfur Sales Volume (mm tons).................. 52.6 135.5 158
Coal Reserve Base (mm tons)........................ 7,000 9,365(/3/) 34
Low Sulfur Reserves (mm tons)...................... 2,500 4,392(/3/) 76
Productivity tons/manshift (U.S. mines)............ 32.9 91.8 179
Average Cost(/4/)/Ton Sold ($)..................... 19.33 10.21 (47)
Non-Union Production (mm tons)..................... 20.9 98.1 369
</TABLE>
- --------
Source: Peabody.
(1) Fiscal year 1990 and fiscal 1998.
(2) Market share is calculated by dividing Peabody's U.S. sales volume by
total demand for coal in the United States as reported by RDI.
(3) As of October 1, 1996.
(4) Operating costs and expenses, excluding Depreciation, Depletion and
Amortization, Selling and Administrative Expenses and Net Loss/(Gain).
In the future, the Company's strategy will concentrate on the following five
principal objectives:
Capitalize on U.S. Electricity Deregulation. Using its extensive customer
base, its portfolio of CSAs and its access to the energy trading and contract
restructuring capabilities of Citizens Power, the Company intends to build on
the opportunities presented by electricity deregulation. The Company estimates
that as much as 200 million tons of additional coal could be consumed annually
if the electricity market were rationalized and the most efficient coal-fired
power plants were used to their full capacity. The Company believes that its
ability to furnish low cost fuel and/or low cost electricity from generating
sources with access to low cost fuel will allow it to capitalize on these
opportunities.
Expand Low Sulfur and International Operations. In a deregulated environment,
coal-fired generation will remain a competitive source of power and the Company
intends to continue expanding into growing segments of the coal market. The
Company expects growth to come from expansion of its low sulfur, low cost coal
operations in the Powder River Basin, as well as expansion of its international
operations. The Company believes increased participation in the expanding Black
Beauty joint venture and possible development of new "greenfield" mining
operations on low sulfur reserves in the western United States will provide the
opportunity to enhance the size and profitability of the Company.
Further Reduce Costs. Peabody continues its focus on cost reductions at its
current operations. The Company believes that prudent capital investment in new
production technologies and the adoption of innovative labor-management
practices under the Labor Management Positive Change Program, a program
designed to improve the competitiveness of its unionized mines, will enable it
to continue to increase productivity. Streamlining of the Company's selling and
administrative functions will further reduce expenses, which the Company
believes to be among the lowest among major coal producers on a per ton basis,
as will careful management of the Company's workers' compensation, reclamation
and retiree health care costs and a continued focus on worker safety.
Leverage Energy Marketing with Citizens Power. The Company will focus on the
strategic integration of its extensive coal customer base with the energy
trading and contract restructuring capabilities of Citizens Power. Through
Citizens Power, the Company expects to offer a variety of innovative coal sales
transactions and energy contract restructuring products to help electric
utility customers remain competitive in a deregulated environment. For example,
coal contracts may be restructured with power off-takes to compensate for lower
coal
4
<PAGE>
prices, or non-utility generating ("NUG") contracts may be restructured using
low-priced generation from coal tolling agreements as a replacement. As energy
markets converge, the Company is prepared to offer a variety of energy products
to suit these changing market circumstances.
Pursue Strategic Acquisitions. Peabody may pursue strategic acquisitions
and/or joint ventures within the U.S. and Australian coal industries, and as
appropriate opportunities arise, the Company may acquire other strategic energy
assets including electric generating facilities, natural gas and energy
production assets.
THE ACQUISITION AND THE FINANCINGS
On March 2, 1998, the Company entered into a purchase agreement (the
"Purchase Agreement") with The Energy Group PLC ("The Energy Group"). The
Purchase Agreement provides for the purchase by the Company from The Energy
Group (the "Acquisition") of all the common stock of Peabody Holding Company,
Inc., a New York corporation ("Peabody Holding Company"), and certain other
subsidiaries of The Energy Group (as more fully described below, the "Acquired
Companies"). The Acquisition was conditioned upon the tender offer by Texas
Utilities Company ("TU") to purchase all the outstanding common shares of The
Energy Group being declared unconditional in all respects and not at that time
being publicly opposed by the board of directors of The Energy Group. See "The
Acquisition."
On May 19, 1998, TU's tender offer was declared unconditional and the
Acquisition was consummated.
The Acquisition was funded by (i) $920.0 million of borrowings by the Company
pursuant to a $920.0 million senior secured term facility (the "Term Loan
Facility"), (ii) the offerings of $400.0 million aggregate principal amount of
Senior Notes and $500.0 million aggregate principal amount of Senior
Subordinated Notes (the "Offerings") and (iii) an equity contribution to the
Company by Lehman Merchant Banking and members of the Company's management of
$480.0 million. Such amounts were used to (a) pay an estimated $2,065.0 million
for the equity of the Acquired Companies, (b) repay U.S. long-term debt of $3.0
million, (c) pay Citizens Power Obligations (as defined) of $92.0 million, (d)
capitalize Citizens Power's energy trading operations with $50.0 million, (e)
increase cash balances by $12.4 million and (f) pay an estimated $75.0 million
in transaction fees and expenses incurred in connection with the Transactions.
The Company also entered into a $480.0 million senior revolving credit facility
(the "Revolving Credit Facility") to provide for the Company's working capital
requirements following the Acquisition. The Company also assumed (i) the 5%
Subordinated Note (as defined) of $200.5 million and (ii) Peabody Resources
Debt (as defined) of $77.0 million. The Revolving Credit Facility and the Term
Loan Facility (collectively the "Senior Credit Facilities") are provided by a
group of banks led by Lehman Commercial Paper Inc. ("LCPI"), an affiliate of
the Initial Purchaser. The Senior Credit Facilities and the Offerings are
collectively referred to herein as the "Financings." The Acquisition, the
Financings and certain distributions to The Energy Group made prior to the
consummation of the Acquisition and the Financings are collectively referred to
as the "Transactions." See "The Acquisition," "Use of Proceeds,"
"Capitalization" and "Description of Certain Indebtedness."
5
<PAGE>
The sources and uses of the funds for the Transactions, assuming they were
consummated on March 31, 1998, are shown on the table below.
SOURCES OF FUNDS
<TABLE>
<CAPTION>
AMOUNT
-------------
(IN MILLIONS)
<S> <C>
Senior Credit Facilities(/1/)
Revolving Credit Facility....................................... $ --
Term Loan Facility.............................................. 920.0
Senior Notes...................................................... 398.8
Senior Subordinated Notes......................................... 498.6
Assumption of 5% Subordinated Note................................ 200.5
Assumption of Peabody Resources Debt(/2/)......................... 77.0
Equity Contribution(/3/).......................................... 480.0
--------
Total Sources................................................. $2,574.9
========
USES OF FUNDS
Purchase of Equity of the Acquired Companies...................... $2,065.0
Repayment of Existing U.S. Long-Term Debt......................... 3.0
Assumption of Peabody Resources Debt(/2/)......................... 77.0
Assumption of 5% Subordinated Note................................ 200.5
Capitalization of Citizens Power.................................. 50.0
Payment of Citizens Power Obligations(/4/)........................ 92.0
Increase in Cash Balance.......................................... 12.4
Estimated Transaction Fees and Expenses........................... 75.0
--------
Total Uses.................................................... $2,574.9
========
</TABLE>
- --------
(1) The Company received commitments of up to $1,400.0 million for the Senior
Credit Facilities, of which $920.0 million was borrowed under the Term Loan
Facility and $480.0 million is in the form of the Revolving Credit
Facility. On a pro forma basis at March 31, 1998, the Company would have
drawn $920.0 million under the Term Loan Facility and would have had no
amounts outstanding under the Revolving Credit Facility, which is expected
to provide working capital going forward. See "Description of Certain
Indebtedness."
(2) Peabody Resources' pro rata share of indebtedness incurred in the expansion
of the Warkworth mine and the development of the Bengalla mine. Peabody
Resources has a 43.75% interest in the Warkworth joint venture and a 35%
interest in the Bengalla joint venture and manages both joint ventures.
Includes $32.3 million of indebtedness incurred in April 1998. See
"Description of Certain Indebtedness."
(3) Equity contribution to the Company by Lehman Merchant Banking and members
of the Company's management of $480.0 million.
(4) Payment of remaining purchase price obligations to the former owners of
Citizens Power, which was acquired on May 19, 1997. See "Description of
Certain Indebtedness" and "Related Party Transactions."
6
<PAGE>
THE EXCHANGE OFFERS
SENIOR EXCHANGE NOTES
THE SENIOR EXCHANGE OFFER... The Company is offering to exchange pursuant to
the Senior Exchange Offer up to $400,000,000
aggregate principal amount of its new 8 7/8%
Series B Senior Notes due 2008 (the "Senior
Exchange Notes") for a like aggregate principal
amount of its outstanding 8 7/8% Senior Notes
due 2008 (the "Old Senior Notes" and together
with the Senior Exchange Notes, the "Senior
Notes"). The terms of the Senior Exchange Notes
are identical in all material respects
(including principal amount, interest rate and
maturity) to the terms of the Old Senior Notes
for which they may be exchanged pursuant to the
Senior Exchange Offer, except that the Senior
Exchange Notes are freely transferrable by
Holders thereof (other than as provided
herein), and are not subject to any covenant
regarding registration under the Securities
Act. See "The Senior Exchange Offer".
INTEREST PAYMENTS........... Interest on the Senior Exchange Notes shall
accrue from the last interest payment date (May
15 or November 15) on which interest was paid
on the Old Senior Notes so surrendered or, if
no interest has been paid on such Notes, from
May 18, 1998.
MINIMUM CONDITION........... The Senior Exchange Offer is not conditioned
upon any minimum aggregate principal amount of
Old Senior Notes being tendered for exchange.
EXPIRATION DATE; WITHDRAWAL
OF TENDER...................
The Senior Exchange Offer will expire at 5:00
p.m., New York City time, on , 1998, unless
the Senior Exchange Offer is extended, in which
case the term "Senior Expiration Date" means
the latest date and time to which the Senior
Exchange Offer is extended. Tenders may be
withdrawn at any time prior to 5:00 p.m., New
York City time, on the Senior Expiration Date.
See "The Senior Exchange Offer--Withdrawal
Rights".
SENIOR EXCHANGE DATE........ The date of acceptance (the "Senior Exchange
Date") for exchange of the Old Senior Notes
will be the fourth business day following the
Senior Expiration Date.
CONDITIONS TO THE SENIOR
EXCHANGE OFFER..............
The Senior Exchange Offer is subject to certain
customary conditions, which may be waived by
the Company. The Company currently expects that
each of the conditions will be satisfied and
that no waivers will be necessary. See "The
Senior Exchange Offer--Certain Conditions to
the Senior Exchange Offer". The Company
reserves the right to terminate or amend the
Senior Exchange Offer at any time prior to the
Senior Expiration Date upon the occurrence of
any such condition.
PROCEDURES FOR TENDERING
OLD SENIOR NOTES............
Each holder of Old Senior Notes wishing to
accept the Senior Exchange Offer must complete,
sign and date a letter of transmittal (the
"Senior Letter of Transmittal"), or a facsimile
thereof, in accordance with the instructions
contained herein and therein, and mail or
otherwise deliver such Senior Letter of
Transmittal, or such facsimile, together with
the Old Senior Notes and any other required
documentation to the Senior Exchange Agent (as
defined) at the address set forth therein. See
7
<PAGE>
"The Senior Exchange Offer--Procedures for
Tendering Old Senior Notes" and "Plan of
Distribution".
USE OF PROCEEDS............. There will be no proceeds to the Company from
the exchange of Senior Notes pursuant to the
Senior Exchange Offer.
FEDERAL INCOME TAX The exchange of Senior Notes pursuant to the
CONSEQUENCES................ Senior Exchange Offer will not be a taxable
event for federal income tax purposes. See
"Certain U.S. Federal Income Tax Consequences".
SPECIAL PROCEDURES FOR
BENEFICIAL OWNERS...........
Any beneficial owner whose Old Senior Notes are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee
and who wishes to tender should contact such
registered holder promptly and instruct such
registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes
to tender on such beneficial owner's own
behalf, such beneficial owner must, prior to
completing and executing the Senior Letter of
Transmittal and delivering the Old Senior
Notes, either make appropriate arrangements to
register ownership of the Old Senior Notes in
such beneficial owner's name or obtain a
properly completed bond power from the
registered holder. The transfer of registered
ownership may take considerable time. See "The
Senior Exchange Offer--Procedures for Tendering
Old Senior Notes".
GUARANTEED DELIVERY Holders of Old Senior Notes who wish to tender
PROCEDURES ................. their Old Senior Notes and whose Old Senior
Notes are not immediately available or who
cannot deliver their Old Senior Notes, the
Senior Letter of Transmittal or any other
documents required by the Senior Letter of
Transmittal to the Senior Exchange Agent prior
to the Senior Expiration Date must tender their
Old Senior Notes according to the guaranteed
delivery procedures set forth in "The Senior
Exchange Offer--Procedures for Tendering Old
Senior Notes".
ACCEPTANCE OF OLD SENIOR
NOTES AND DELIVERY OF
SENIOR EXCHANGE NOTES ...... The Company will accept for exchange any and
all Old Senior Notes which are properly
tendered in the Senior Exchange Offer prior to
5:00 p.m., New York City time, on the Senior
Expiration Date. The Senior Exchange Notes
issued pursuant to the Senior Exchange Offer
will be delivered promptly following the Senior
Expiration Date. See "The Senior Exchange
Offer--Acceptance of Old Senior Notes for
Exchange; Delivery of Senior Exchange Notes".
EFFECT ON HOLDERS OF OLD
SENIOR NOTES................
As a result of the making of, and upon
acceptance for exchange of all validly tendered
Old Senior Notes pursuant to the terms of the
Senior Exchange Offer, the Company will have
fulfilled a covenant contained in the
Registration Rights Agreement (the "Senior
Registration Rights Agreement") dated May 18,
1998, between the Company and Lehman Brothers
Inc. (the "Initial Purchaser") relating to the
Senior Notes, and, accordingly, there will be
no increase in the interest rate on the Old
Senior Notes pursuant to the terms of the
Senior Registration Rights Agreement, and the
holders of the Old Senior Notes will have no
further registration or other rights under the
Senior Registration Rights Agreement. Holders
of the Old Senior Notes who do not
8
<PAGE>
tender their Old Senior Notes in the Senior
Exchange Offer will continue to hold such Old
Senior Notes and will be entitled to all the
rights and limitations applicable thereto under
the Senior Note Indenture (as defined), except
for any such rights under the Senior
Registration Rights Agreement that by their
terms terminate or cease to have further
effectiveness as a result of the making of, and
the acceptance for exchange of all validly
tendered Old Senior Notes pursuant to, the
Senior Exchange Offer. All untendered Old
Senior Notes will continue to be subject to the
restrictions on transfer provided for in the
Old Senior Notes and in the Senior Note
Indenture. To the extent that Old Senior Notes
are tendered and accepted in the Senior
Exchange Offer, the trading market for
untendered Old Senior Notes could be adversely
affected.
CONSEQUENCE OF FAILURE TO Holders of Old Senior Notes who do not exchange
EXCHANGE.................... their Old Senior Notes for Senior Exchange
Notes pursuant to the Senior Exchange Offer
will continue to be subject to the restrictions
on transfer of such Old Senior Notes as set
forth in the legend thereon as a consequence of
the offer or sale of the Old Senior Notes
pursuant to an exemption from, or in a
transaction not subject to, the registration
requirements of the Securities Act and
applicable state securities laws. In general,
the Old Senior Notes may not be offered or
sold, unless registered under the Securities
Act, except pursuant to an exemption from, or
in a transaction not subject to, the Securities
Act and applicable state securities laws. The
Company does not currently anticipate that it
will register the Old Senior Notes under the
Securities Act.
EXCHANGE AGENT.............. State Street Bank and Trust Company is serving
as exchange agent (the "Senior Exchange Agent")
in connection with the Senior Exchange Offer.
See "The Senior Exchange Offer--Exchange
Agent".
SENIOR SUBORDINATED EXCHANGE NOTES
THE SENIOR SUBORDINATED
EXCHANGE OFFER..............
The Company is offering to exchange pursuant to
the Senior Subordinated Exchange Offer up to
$500,000,000 aggregate principal amount of its
new 9 5/8% Series B Senior Subordinated Notes
due 2008 (the "Senior Subordinated Exchange
Notes" and together with the "Senior Exchange
Notes", the "Exchange Notes") for a like
aggregate principal amount of its outstanding 9
5/8% Senior Subordinated Notes due 2008 (the
"Old Senior Subordinated Notes" and together
with the Senior Subordinated Exchange Notes,
the "Senior Subordinated Notes" and together
with the Old Senior Notes, the "Old Notes").
The terms of the Senior Subordinated Exchange
Notes are identical in all material respects
(including principal amount, interest rate and
maturity) to the terms of the Old Senior
Subordinated Notes for which they may be
exchanged pursuant to the Senior Subordinated
Exchange Offer, except that the Senior
Subordinated Exchange Notes are freely
transferrable by Holders thereof (other than as
provided herein), and are not subject to any
covenant regarding registration under the
Securities Act. See "The Senior Subordinated
Exchange Offer".
9
<PAGE>
INTEREST PAYMENTS........... Interest on the Senior Subordinated Exchange
Notes shall accrue from the last interest
payment date (May 15 or November 15) on which
interest was paid on the Old Senior
Subordinated Notes so surrendered or, if no
interest has been paid on such Notes, from May
18, 1998.
MINIMUM CONDITION........... The Senior Subordinated Exchange Offer is not
conditioned upon any minimum aggregate
principal amount of Old Senior Subordinated
Notes being tendered for exchange.
EXPIRATION DATE; WITHDRAWAL
OF TENDER...................
The Senior Subordinated Exchange Offer will
expire at 5:00 p.m., New York City time, on
, 1998, unless the Senior Subordinated
Exchange Offer is extended, in which case the
term "Senior Subordinated Expiration Date"
means the latest date and time to which the
Senior Subordinated Exchange Offer is extended.
Tenders may be withdrawn at any time prior to
5:00 p.m., New York City time, on the Senior
Subordinated Expiration Date. See "The Senior
Subordinated Exchange Offer--Withdrawal
Rights".
SENIOR SUBORDINATED The date of acceptance ("the Senior
EXCHANGE DATE............... Subordinated Exchange Date") for exchange of
the Old Senior Subordinated Notes will be the
fourth business day following the Senior
Subordinated Expiration Date.
CONDITIONS TO THE SENIOR
SUBORDINATED EXCHANGE
OFFER....................... The Senior Subordinated Exchange Offer is
subject to certain customary conditions, which
may be waived by the Company. The Company
currently expects that each of the conditions
will be satisfied and that no waivers will be
necessary. See "The Senior Subordinated
Exchange Offer--Certain Conditions to the
Senior Subordinated Exchange Offer". The
Company reserves the right to terminate or
amend the Senior Subordinated Exchange Offer at
any time prior to the Senior Subordinated
Expiration Date upon the occurrence of any such
condition.
PROCEDURES FOR TENDERING
OLD SENIOR SUBORDINATED
NOTES....................... Each holder of Old Senior Subordinated Notes
wishing to accept the Senior Subordinated
Exchange Offer must complete, sign and date a
letter of transmittal (the "Senior Subordinated
Letter of Transmittal"), or a facsimile
thereof, in accordance with the instructions
contained herein and therein, and mail or
otherwise deliver such Senior Subordinated
Letter of Transmittal, or such facsimile,
together with the Old Senior Subordinated Notes
and any other required documentation to the
Senior Subordinated Exchange Agent (as defined)
at the address set forth therein. See "The
Senior Subordinated Exchange Offer--Procedures
for Tendering Old Senior Subordinated Notes"
and "Plan of Distribution".
USE OF PROCEEDS............. There will be no proceeds to the Company from
the exchange of Senior Subordinated Notes
pursuant to the Senior Subordinated Exchange
Offer.
FEDERAL INCOME TAX The exchange of Senior Subordinated Notes
CONSEQUENCES................ pursuant to the Senior Subordinated Exchange
Offer will not be a taxable event for federal
income tax purposes. See "Certain U.S. Federal
Income Tax Consequences".
10
<PAGE>
SPECIAL PROCEDURES FOR
BENEFICIAL OWNERS...........
Any beneficial owner whose Old Senior
Subordinated Notes are registered in the name
of a broker, dealer, commercial bank, trust
company or other nominee and who wishes to
tender should contact such registered holder
promptly and instruct such registered holder to
tender on such beneficial owner's behalf. If
such beneficial owner wishes to tender on such
beneficial owner's own behalf, such beneficial
owner must, prior to completing and executing
the Senior Subordinated Letter of Transmittal
and delivering the Old Senior Subordinated
Notes, either make appropriate arrangements to
register ownership of the Old Senior
Subordinated Notes in such beneficial owner's
name or obtain a properly completed bond power
from the registered holder. The transfer of
registered ownership may take considerable
time. See "The Senior Subordinated Exchange
Offer--Procedures for Tendering Old Senior
Subordinated Notes".
GUARANTEED DELIVERY Holders of Old Senior Subordinated Notes who
PROCEDURES.................. wish to tender their Old Senior Subordinated
Notes and whose Old Senior Subordinated Notes
are not immediately available or who cannot
deliver their Old Senior Subordinated Notes,
the Senior Subordinated Letter of Transmittal
or any other documents required by the Senior
Subordinated Letter of Transmittal to the
Senior Subordinated Exchange Agent prior to the
Senior Subordinated Expiration Date must tender
their Old Senior Subordinated Notes according
to the guaranteed delivery procedures set forth
in "The Senior Subordinated Exchange Offer--
Procedures for Tendering Old Senior
Subordinated Notes".
ACCEPTANCE OF OLD SENIOR
SUBORDINATED NOTES AND
DELIVERY OF SENIOR
SUBORDINATED EXCHANGE
NOTES....................... The Company will accept for exchange any and
all Old Senior Subordinated Notes which are
properly tendered in the Senior Subordinated
Exchange Offer prior to 5:00 p.m., New York
City time, on the Senior Subordinated
Expiration Date. The Senior Subordinated
Exchange Notes issued pursuant to the Senior
Subordinated Exchange Offer will be delivered
promptly following the Senior Subordinated
Expiration Date. See "The Senior Subordinated
Exchange Offer--Acceptance of Old Senior
Subordinated Notes for Exchange; Delivery of
Senior Subordinated Exchange Notes".
EFFECT ON HOLDERS OF OLD
SENIOR SUBORDINATED NOTES...
As a result of the making of, and upon
acceptance for exchange of all validly tendered
Old Senior Subordinated Notes pursuant to the
terms of the Senior Subordinated Exchange
Offer, the Company will have fulfilled a
covenant contained in the Registration Rights
Agreement (the "Senior Subordinated
Registration Rights Agreement") dated May 18,
1998, between the Company and the Initial
Purchaser relating to the Senior Subordinated
Notes, and, accordingly, there will be no
increase in the interest rate on the Old Senior
Subordinated Notes pursuant to the terms of the
Senior Subordinated Registration Rights
11
<PAGE>
Agreement, and the holders of the Old Senior
Subordinated Notes will have no further
registration or other rights under the Senior
Subordinated Registration Rights Agreement.
Holders of the Old Senior Subordinated Notes
who do not tender their Old Senior Subordinated
Notes in the Senior Subordinated Exchange Offer
will continue to hold such Old Senior
Subordinated Notes and will be entitled to all
the rights and limitations applicable thereto
under the Senior Subordinated Note Indenture
(as defined), except for any such rights under
the Senior Subordinated Registration Rights
Agreement that by their terms terminate or
cease to have further effectiveness as a result
of the making of, and the acceptance for
exchange of all validly tendered Old Senior
Subordinated Notes pursuant to, the Senior
Subordinated Exchange Offer. All untendered Old
Senior Subordinated Notes will continue to be
subject to the restrictions on transfer
provided for in the Old Senior Subordinated
Notes and in the Senior Subordinated Note
Indenture. To the extent that Old Senior
Subordinated Notes are tendered and accepted in
the Senior Subordinated Exchange Offer, the
trading market for untendered Old Senior
Subordinated Notes could be adversely affected.
CONSEQUENCE OF FAILURE TO Holders of Old Senior Subordinated Notes who do
EXCHANGE.................... not exchange their Old Senior Subordinated
Notes for Senior Subordinated Exchange Notes
pursuant to the Senior Subordinated Exchange
Offer will continue to be subject to the
restrictions on transfer of such Old Senior
Subordinated Notes as set forth in the legend
thereon as a consequence of the offer or sale
of the Old Senior Subordinated Notes pursuant
to an exemption from, or in a transaction not
subject to, the registration requirements of
the Securities Act and applicable state
securities laws. In general, the Old Senior
Subordinated Notes may not be offered or sold,
unless registered under the Securities Act,
except pursuant to an exemption from, or in a
transaction not subject to, the Securities Act
and applicable state securities laws. The
Company does not currently anticipate that it
will register the Old Senior Subordinated Notes
under the Securities Act.
SENIOR SUBORDINATED
EXCHANGE AGENT..............
State Street Bank and Trust Company is serving
as exchange agent (the "Senior Subordinated
Exchange Agent") in connection with the Senior
Subordinated Exchange Offer. See "The Senior
Subordinated Exchange Offer--Exchange Agent".
TERMS OF THE EXCHANGE NOTES
SENIOR EXCHANGE NOTES
SECURITIES OFFERED:......... $400.0 million in aggregate principal amount of
8 7/8% Series B Senior Notes due 2008 of the
Company.
MATURITY DATE:.............. May 15, 2008.
INTEREST PAYMENT DATES:..... May 15 and November 15, commencing November 15,
1998.
12
<PAGE>
MANDATORY REDEMPTION:....... The Company will not be required to make
mandatory redemption or sinking fund payments
with respect to the Senior Exchange Notes.
OPTIONAL REDEMPTION:........ Prior to May 15, 2003, the Senior Exchange
Notes will be redeemable at a redemption price
equal to 100% of the principal amount thereof
plus the applicable Senior Notes Make Whole
Premium, plus, to the extent not included in
the Senior Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if
any, to the date of redemption. For purposes of
the foregoing, "Senior Notes Make Whole
Premium" means, with respect to a Senior Note,
an amount equal to the greater of (a) 104.438%
of the outstanding principal amount of such
Senior Exchange Note and (b) the excess of (i)
the present value of the remaining interest,
premium, if any, and principal payments due on
such Senior Exchange Note as if such Senior
Exchange Note were redeemed on May 15, 2003,
computed using a discount rate equal to the
Treasury Rate (as defined) plus 50 basis
points, over (ii) the outstanding principal
amount of such Senior Exchange Note.
On or after May 15, 2003, the Senior Exchange
Notes will be redeemable at the option of the
Company, in whole or in part, at the redemption
prices set forth herein, plus accrued and
unpaid interest and Liquidated Damages, if any,
thereon to the applicable date of redemption.
In addition, at any time prior to May 15, 2001,
on any one or more occasions the Company may,
at its option, redeem up to 35% of the
aggregate principal amount of the Senior
Exchange Notes at a redemption price equal to
108.875% of the principal amount thereof, plus
accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable date
of redemption, with the net cash proceeds of
one or more Equity Offerings; provided that at
least 65% aggregate principal amount of Senior
Exchange Notes remains outstanding immediately
after the occurrence of each such redemption.
See "Description of the Senior Exchange Notes--
Optional Redemption."
CHANGE OF CONTROL:.......... Upon the occurrence of a Change of Control,
each Holder of Senior Exchange Notes will have
the right to require the Company, and the
Company must offer, to purchase all or any part
of such Holder's Senior Exchange Notes at a
price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase. See
"Description of the Senior Exchange Notes--
Repurchase at the Option of Holders--Change of
Control."
RANKING:.................... The Senior Exchange Notes will be general
unsecured obligations of the Company, will rank
senior in right of payment to all subordinated
Indebtedness of the Company and will rank pari
passu in right of payment with all current and
future unsecured senior Indebtedness of the
Company, including all borrowings under the
Senior Credit Facilities. However, all
borrowings under the Senior Credit Facilities
are secured by a first priority Lien on certain
of the assets of the Company and certain of its
Domestic Subsidiaries. As of March 31, 1998, on
a pro forma basis after
13
<PAGE>
giving effect to the Transactions, the Company
would have had $920.0 million of Indebtedness
outstanding under the Senior Credit Facilities.
See "Risk Factors--Risks Relating to the
Notes--Substantial Leverage," "Capitalization"
and "Description of the Senior Exchange Notes."
SENIOR SUBSIDIARY Certain of the Company's current and future
GUARANTEES:................. Restricted Subsidiaries that are Domestic
Subsidiaries, if any, will jointly and
severally guarantee the Company's payment
obligations under the Senior Exchange Notes on
a senior basis. The Senior Subsidiary
Guarantees will rank senior to all existing and
future subordinated Indebtedness of the
Guarantors and pari passu with all other
unsecured senior Indebtedness of the
Guarantors, including the guarantees of
Indebtedness under the Senior Credit
Facilities. Each Guarantor's obligations under
the Senior Credit Facilities, however, will be
secured by a first priority Lien on certain of
the assets of such Guarantor, and the Senior
Note Indenture restricts, but does not
prohibit, the Guarantors from incurring
additional secured Indebtedness. Accordingly,
such secured Indebtedness will rank prior to
the Senior Subsidiary Guarantees with respect
to such assets. See "Risk Factors--Risks
Relating to the Notes--Ranking--Secured
Indebtedness; Effective Subordination" and
"Description of the Senior Exchange Notes--
Senior Subsidiary Guarantees."
The Senior Exchange Notes will not be
guaranteed by certain other of the Company's
Domestic Subsidiaries or by any of the
Company's current or future Foreign
Subsidiaries (as defined) (the "Non-Guarantor
Subsidiaries"). For fiscal 1998, after giving
effect to the Transactions, the Non-Guarantor
Subsidiaries (as defined) accounted for 11% and
20% of pro forma revenues and EBITDA,
respectively, and, as of March 31, 1998, the
Non-Guarantor Subsidiaries accounted for 27% of
pro forma assets.
CERTAIN COVENANTS:.......... The Senior Note Indenture contains certain
covenants that, among other things, limit the
ability of the Company and its Subsidiaries to
(i) incur additional Indebtedness and issue
preferred stock, (ii) pay dividends or make
certain other restricted payments, (iii) create
certain Liens, (iv) enter into certain
transactions with affiliates, (v) sell assets
of the Company or its Restricted Subsidiaries
or (vi) enter into certain mergers and
consolidations. In addition, under certain
circumstances, the Company will be required to
offer to purchase the Senior Exchange Notes
with the net cash proceeds of certain sales and
other dispositions of assets at a price equal
to 100% of the principal amount of the Senior
Exchange Notes, plus accrued and unpaid
interest and Liquidated Damages, if any,
thereon to the date of purchase. Citizens Power
will be designated as an Unrestricted
Subsidiary (as defined) and will not be subject
to many of the covenants under the Senior Note
Indenture. See "Description of the Senior
Exchange Notes--Certain Covenants" and "--
Repurchase at the Option of Holders--Asset
Sales."
14
<PAGE>
SENIOR SUBORDINATED EXCHANGE NOTES
SECURITIES OFFERED:......... $500.0 million in aggregate principal amount of
9 5/8% Series B Senior Subordinated Notes due
2008 of the Company.
MATURITY:................... May 15, 2008.
INTEREST PAYMENT DATES:..... May 15 and November 15, commencing November 15,
1998.
MANDATORY REDEMPTION:....... The Company will not be required to make
mandatory redemption or sinking fund payments
with respect to the Senior Subordinated
Exchange Notes.
OPTIONAL REDEMPTION:........ Prior to May 15, 2003, the Senior Subordinated
Exchange Notes will be redeemable at a
redemption price equal to 100% of the principal
amount thereof plus the applicable Senior
Subordinated Notes Make Whole Premium, plus, to
the extent not included in the Senior
Subordinated Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if
any, to the date of redemption. For purposes of
the foregoing, "Senior Subordinated Notes Make
Whole Premium" means, with respect to a Senior
Subordinated Exchange Note, an amount equal to
the greater of (a) 104.813% of the outstanding
principal amount of such Senior Subordinated
Exchange Note and (b) the excess of (i) the
present value of the remaining interest,
premium, if any, and principal payments due on
such Senior Subordinated Exchange Note as if
such Senior Subordinated Exchange Note were
redeemed on May 15, 2003, computed using a
discount rate equal to the Treasury Rate plus
50 basis points, over (ii) the outstanding
principal amount of such Senior Subordinated
Note.
On or after May 15, 2003, the Senior
Subordinated Exchange Notes will be redeemable
at the option of Company, in whole or in part,
at the redemption prices set forth herein plus
accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable date
of redemption. In addition, at any time prior
to May 15, 2001, on any one or more occasions
the Company may, at its option, redeem up to
35% of the aggregate principal amount of Senior
Subordinated Exchange Notes at a redemption
price equal to 109.625% of the principal amount
thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the
applicable date of redemption, with the net
cash proceeds of one or more Equity Offerings;
provided that at least 65% aggregate principal
amount of Senior Subordinated Exchange Notes
remains outstanding immediately after the
occurrence of each such redemption. See
"Description of the Senior Subordinated
Exchange Notes--Optional Redemption."
Upon the occurrence of a Change of Control,
CHANGE OF CONTROL:.......... each Holder of Senior Subordinated Exchange
Notes will have the right to require the
Company, and the Company must offer, to
purchase all or any part of such Holder's
Senior Subordinated Exchange Notes at a price
in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase. See
"Description of the Senior Subordinated
Exchange Notes--Repurchase at the Option of
Holders--Change of Control."
15
<PAGE>
RANKING:.................... The Senior Subordinated Exchange Notes will be
general unsecured obligations of the Company,
subordinate in right of payment to all existing
and future Senior Debt of the Company and
senior in right of payment to or pari passu
with all other indebtedness of the Company. On
a pro forma basis after giving effect to the
Transactions, the Company would have had
$2,098.0 million of indebtedness outstanding
(excluding $293.9 million of non-recourse
indebtedness of Citizens Power), of which
$1,318.8 million would have been Senior Debt
under the Senior Credit Facilities (excluding
letters of credit) and the Senior Notes as of
March 31, 1998. See "Risk Factors--Risks
Relating to the Notes--Substantial Leverage,"
"Capitalization" and "Description of the Senior
Subordinated Exchange Notes--Subordination."
SUBORDINATED SUBSIDIARY
GUARANTEES:................ The Company's payment obligations under the
Senior Subordinated Exchange Notes will be
jointly and severally guaranteed on a senior
subordinated basis by the Guarantors. See
"Description of the Senior Subordinated
Exchange Notes--Subordinated Subsidiary
Guarantees."
The Senior Subordinated Exchange Notes will not
be guaranteed by certain other of the Company's
Domestic Subsidiaries or by any of the
Company's current or future Foreign
Subsidiaries. For fiscal 1998, after giving
effect to the Transactions, the Non-Guarantor
Subsidiaries accounted for 11% and 20% of pro
forma revenues and EBITDA, respectively, and,
as of March 31, 1998, the Non-Guarantor
Subsidiaries accounted for 27% of pro forma
assets.
CERTAIN COVENANTS:.......... The Senior Subordinated Note Indenture contains
certain covenants that, among other things,
limit the ability of the Company and its
Subsidiaries to (i) incur additional
Indebtedness and issue preferred stock, (ii)
pay dividends or make certain other restricted
payments, (iii) create certain Liens, (iv)
enter into certain transactions with
affiliates, (v) sell assets of the Company or
its Restricted Subsidiaries or (vi) enter into
certain mergers and consolidations. In
addition, under certain circumstances, the
Company will be required to offer to purchase
the Senior Subordinated Exchange Notes with the
net cash proceeds of certain sales and other
dispositions of assets at a price equal to 100%
of the principal amount of the Senior
Subordinated Exchange Notes, plus accrued and
unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase. Citizens Power
will be designated as an Unrestricted
Subsidiary and will not be subject to many of
the covenants under the Senior Subordinated
Note Indenture. See "Description of the Senior
Subordinated Exchange Notes--Certain Covenants"
and "--Repurchase at the Option of the
Holders--Asset Sales."
FOR A DISCUSSION OF CERTAIN RISK FACTORS THAT SHOULD BE CONSIDERED IN
CONNECTION WITH AN INVESTMENT IN EACH SERIES OF THE EXCHANGE NOTES, SEE "RISK
FACTORS."
16
<PAGE>
SUMMARY COMBINED FINANCIAL DATA
The following table sets forth summary combined financial data of the
Company. The historical combined financial data for the year ended, and as of,
March 31, 1998, for the six months ended, and as of, March 31, 1997 and for the
years ended, and as of, September 30, 1996, and 1995 have been derived from,
and should be read in conjunction with, the audited combined financial
statements of the Company included elsewhere in this Prospectus which have been
audited by Ernst & Young LLP, the Company's independent auditors. The table
reflects the fact that effective with The Energy Group's spin-off from Hanson
PLC ("Hanson"), the Company switched from a fiscal year ended September 30 to a
fiscal year ended March 31.
The unaudited summary combined financial data for the twelve months ended,
and as of, March 31, 1997 and for the year ended, and as of, September 30, 1994
have been derived from Company records. In the opinion of the Company's
management, such unaudited financial statements reflect all adjustments
(consisting of normal recurring adjustments) necessary to present fairly the
financial position and results of operations as of the dates and periods
indicated.
The unaudited pro forma combined financial data have been derived from, and
should be read in conjunction with, the Unaudited Pro Forma Condensed Combined
Financial Statements and the related notes thereto included elsewhere herein.
The Unaudited Pro Forma Condensed Combined Statement of Operations for the
period presented gives pro forma effect to the Transactions as if they had
occurred on April 1, 1997. The summary unaudited pro forma combined financial
data are intended for informational purposes only and should not be considered
indicative of either future results of operations or the results that might
have occurred if the Transactions had been consummated on the indicated date or
had been in effect for the period presented. The summary unaudited pro forma
balance sheet data gives effect to the Transactions, as if they had occurred as
of March 31, 1998. See "Unaudited Pro Forma Condensed Combined Financial
Statements," "Selected Combined Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the "Combined
Financial Statements" and related notes included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
PRO FORMA
FISCAL TWELVE SIX
YEAR FISCAL YEAR MONTHS MONTHS FISCAL YEARS ENDED SEPTEMBER
ENDED ENDED ENDED ENDED 30,
--------- ----------- --------- --------- -----------------------------------
MARCH 31, MARCH 31, MARCH 31, MARCH 31,
1998(/1/) 1998(/2/) 1997 1997 1996 1995(/3/) 1994(/4/)
--------- ----------- --------- --------- -------- --------- ---------
(IN MILLIONS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS
DATA:
Tons Sold............... 167.5 167.5 167.4 81.4 163.0 151.0 101.6
Revenues................ $2,244.4 $2,244.4 $2,242.3 $1,064.1 $2,193.6 $2,175.8 $1,844.4
Cost of Goods Sold
(includes depreciation,
depletion and
amortization).......... 1,964.9 1,913.4 1,941.6 924.7 1,891.4 1,861.8 1,631.6
-------- -------- -------- -------- -------- -------- --------
Gross Profit............ $ 279.5 $ 331.0 $ 300.7 $ 139.4 $ 302.2 $ 314.0 $ 212.8
Impairment of Long-Lived
Assets(/5/)............ -- -- 890.8 -- 890.8 -- --
Selling and
Administrative
Expenses............... 83.6 83.6 80.7 41.4 75.7 81.3 73.1
Net Loss/(Gain) on
Property and Equipment
Disposals.............. (21.8) (21.8) (8.0) (4.1) (13.0) (12.9) (5.9)
-------- -------- -------- -------- -------- -------- --------
Operating Profit
(Loss)................. $ 217.7 $ 269.2 $ (662.8) $ 102.1 $ (651.3) $ 245.6 $ 145.6
======== ======== ======== ======== ======== ======== ========
Net Income (Loss)....... $ (22.2) $ 160.3 $ (449.3) $ 58.4 $ (446.3) $ 100.4 $ 79.4
======== ======== ======== ======== ======== ======== ========
OTHER FINANCIAL DATA:
EBITDA(/6/)............. $ 439.0 $ 471.8 $ 431.6 (/7/) $ 203.8 $ 437.4 (/7/) $ 435.9 $ 315.8
Depreciation, Depletion
and Amortization....... 221.3 202.6 203.6 101.7 197.9 190.3 170.2
Capital Expenditures
Replacement of
Equipment and
Facilities............ $ 90.9 $ 90.9 $ 89.1 $ 47.3 $ 88.7 $ 122.9 $ 77.3
New Mine and Expanded
Capacity.............. 75.4 75.4 59.4 29.2 63.4 65.1 58.4
-------- -------- -------- -------- -------- -------- --------
Total Capital
Expenditures.......... $ 166.3 $ 166.3 $ 148.5 $ 76.5 $ 152.1 $ 188.0 $ 135.7
======== ======== ======== ======== ======== ======== ========
Ratio of Earnings to
Fixed Charges(/8/)..... 1.06x 5.77x -- 3.63x -- 3.63x 2.13x
Ratio of Net Debt to
EBITDA(/9/)............ 4.67x
Ratio of EBITDA to Cash
Interest
Expense(/1//0/)........ 2.28x
</TABLE>
<TABLE>
<CAPTION>
PRO FORMA AS OF AS OF
MARCH 31, MARCH 31, MARCH 31,
1998(/1/) 1998(/2/) 1997
--------- --------- ---------
<S> <C> <C> <C>
BALANCE SHEET DATA:
Working Capital.................................. $ 389.3 $ 535.9 $ 167.1
Total Assets..................................... 7,279.5 6,355.2 5,025.8
Recourse Debt.................................... 2,098.0 308.4 321.7
Non-Recourse Debt................................ 293.9 293.9 --
Invested Capital................................. 480.0 1,687.8 1,676.8
</TABLE>
17
<PAGE>
- -------
(1) Reflects the acquisition of Citizens Power effective May 19, 1997,
including $10.8 million of EBITDA, $344.2 million of working capital,
$1,525.5 million of total assets and $293.9 million of non-recourse
indebtedness of Citizens Power as of March 31, 1998 and for the period May
19, 1997 to March 31, 1998.
(2) Reflects the acquisition of Citizens Power effective May 19, 1997,
including $10.8 million of EBITDA, $294.2 million of working capital,
$1,448.5 million of total assets and $293.9 million of non-recourse
indebtedness of Citizens Power as of March 31, 1998 and for the period May
19, 1997 to March 31, 1998.
(3) Reflects the acquisition of the Caballo and the Rawhide coal mines in the
Powder River Basin effective November 1994.
(4) The Company experienced a United Mine Workers of America ("UMWA") work
stoppage from February 2, 1993 to December 16, 1993, which negatively
impacted the Company's Peabody Coal Company and Eastern Associated Coal
Corp. operations.
(5) Represents a one-time non-cash charge made pursuant to Statement of
Financial Accounting Standards ("SFAS") No. 121 "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
of" ("SFAS 121") which had no effect on the Company's cash flow.
(6) EBITDA is defined as income before deducting interest expense, income
taxes, depreciation, depletion and amortization and excludes any non-cash
compensation expense related to management stock transactions. EBITDA has
been reduced by costs associated with reclamation, retiree health care and
workers' compensation. EBITDA is not a substitute for operating income,
net income and cash flow from operating activities as determined in
accordance with generally accepted accounting principles as a measure of
profitability or liquidity. EBITDA is presented as additional information
because management believes it to be a useful indicator of the Company's
ability to meet debt service and capital expenditure requirements and
because it is expected that certain debt covenants of the Company will
utilize EBITDA to measure compliance with such covenants. Because EBITDA
is not calculated identically by all companies, the presentation herein
may not be comparable to other similarly titled measures of other
companies.
(7) EBITDA for the the twelve months ended March 31, 1997 and September 30,
1996 excluded an $890.8 million charge for Impairment of Long-Lived
Assets. This is a one-time non-cash charge made pursuant to SFAS 121 and
had no effect on the Company's cash flow.
(8) For purposes of this computation, earnings consist of income before income
taxes plus fixed charges. Fixed charges consist of interest expense on all
indebtedness plus the interest component of lease rental expense. Earnings
were insufficient to cover fixed charges by $702.3 and $702.5 million for
the twelve months ended March 31, 1997 and the fiscal year ended September
30, 1996, due to the SFAS 121 charges described above.
(9) For the purposes of the calculation, net debt consists of total debt less
cash and cash equivalents of $98.9 million. Excludes $293.9 million of
non-recourse indebtedness, $10.8 million of EBITDA and $60.4 million of
cash of Citizens Power.
(10) For the purposes of this calculation, cash interest expense represents
total interest expense less non-cash interest charges, including
amortization of deferred financing costs and imputed interest from the 5%
Subordinated Note. Excludes $10.8 million of EBITDA for Citizens Power.
18
<PAGE>
RISK FACTORS
Holders of Old Notes should consider carefully, in addition to the other
information contained in this Prospectus, the following factors before deciding
to tender Old Notes in the Exchange Offers. The risk factors set forth below
are generally applicable to the Old Notes as well as the Exchange Notes.
THIS PROSPECTUS CONTAINS "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF
SECTION 27A OF THE SECURITIES ACT AND SECTION 21E OF THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"). THESE STATEMENTS APPEAR IN A
NUMBER OF PLACES IN THIS PROSPECTUS AND INCLUDE STATEMENTS REGARDING THE
INTENT, BELIEF OR CURRENT EXPECTATIONS OF THE COMPANY OR ITS OFFICERS WITH
RESPECT TO, AMONG OTHER THINGS, THE USE OF PROCEEDS OF THE OFFERINGS, THE
ABILITY TO ENTER INTO AND BORROW FUNDS UNDER THE SENIOR CREDIT FACILITIES, THE
TIMING OF THE COMMENCEMENT OF OPERATIONS AT NEW MINES, THE ABILITY TO
SUCCESSFULLY IMPLEMENT A NEW ORGANIZATIONAL STRUCTURE AND OPERATING STRATEGIES,
INCLUDING THE ACHIEVEMENT OF COST SAVINGS AND TRENDS AFFECTING THE COMPANY'S
FINANCIAL CONDITION OR RESULTS OF OPERATIONS. ALL STATEMENTS OTHER THAN
STATEMENTS OF HISTORICAL FACTS INCLUDED IN THIS PROSPECTUS, INCLUDING, WITHOUT
LIMITATION, THE STATEMENTS UNDER "PROSPECTUS SUMMARY," "RISK FACTORS,"
"UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS," "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS,"
"BUSINESS," "COAL INDUSTRY OVERVIEW" AND "REGULATORY MATTERS" LOCATED ELSEWHERE
HEREIN REGARDING INDUSTRY PROSPECTS AND THE COMPANY'S FINANCIAL POSITION ARE
FORWARD-LOOKING STATEMENTS. READERS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE
ON THESE FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS THE DATE HEREOF.
ALTHOUGH THE COMPANY BELIEVES THAT THE EXPECTATIONS REFLECTED IN SUCH FORWARD-
LOOKING STATEMENTS ARE REASONABLE, IT CAN GIVE NO ASSURANCE THAT SUCH
EXPECTATIONS WILL PROVE TO HAVE BEEN CORRECT. IMPORTANT FACTORS THAT COULD
CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE COMPANY'S EXPECTATIONS
("CAUTIONARY STATEMENTS") ARE DISCLOSED IN THIS PROSPECTUS, INCLUDING, WITHOUT
LIMITATION, IN CONJUNCTION WITH THE FORWARD-LOOKING STATEMENTS INCLUDED IN THIS
PROSPECTUS UNDER "PROSPECTUS SUMMARY," "RISK FACTORS," "UNAUDITED PRO FORMA
CONDENSED COMBINED FINANCIAL STATEMENTS," "MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS," "BUSINESS," "COAL INDUSTRY
OVERVIEW" AND "REGULATORY MATTERS."
ALL SUBSEQUENT WRITTEN AND ORAL FORWARD-LOOKING STATEMENTS ATTRIBUTABLE TO
THE COMPANY OR PERSONS ACTING ON ITS BEHALF ARE EXPRESSLY QUALIFIED IN THEIR
ENTIRETY BY THE CAUTIONARY STATEMENTS.
RISKS RELATING TO THE EXCHANGE NOTES
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of Old Notes who do not exchange their Old Notes for Exchange Notes
pursuant to the Exchange Offers will continue to be subject to the restrictions
on transfer of such Old Notes as set forth in the legend thereon. In general,
Old Notes may not be offered or sold unless registered under the Securities
Act, except pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act and applicable state
securities laws. The Company does not currently intend to register the Old
Notes under the Securities Act. Based on interpretations by the staff of the
Commission, the Company believes that Exchange Notes issued pursuant to the
Exchange Offers in exchange for Old Notes may be offered for resale, resold or
otherwise transferred by Holders thereof (other than any such Holder which is
an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Old Notes were
acquired in the ordinary course of such Holders' business and such Holders have
no arrangement with any person to participate in the distribution of such
Exchange Notes. Each broker-dealer that receives Exchange Notes for its own
account in exchange for Old Notes, where such Old Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution." To the
extent that Old Notes are tendered and accepted in the Exchange Offer, the
trading market for untendered and tendered but unaccepted Old Notes will be
adversely affected.
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SUBSTANTIAL LEVERAGE
As a result of the Transactions, the Company is highly leveraged and, after
giving pro forma effect to the Transactions, the Company would have had total
indebtedness of $2,098.0 million, excluding $293.9 million of Citizens Power
non-recourse debt, at March 31, 1998 (of which (i) $920.0 million would have
consisted of Indebtedness under the Senior Credit Facilities, (ii) $398.8
million would have consisted of the Senior Notes, (iii) $498.6 million would
have consisted of the Senior Subordinated Notes and (iv) the balance would
have primarily consisted of the 5% Subordinated Note) and equity of $480.0
million. In addition, the Company would have had available borrowings of up to
$480.0 million under the Revolving Credit Facility. Also after giving pro
forma effect to the Transactions, the Company's ratio of earnings to fixed
charges would have been 1.06x for fiscal 1998. The Company and its Restricted
Subsidiaries are permitted to incur substantial additional indebtedness in the
future. See "Capitalization," "Selected Combined Financial Data," "Description
of the Senior Exchange Notes" and "Description of the Senior Subordinated
Exchange Notes."
The Company's ability to pay principal and interest or Liquidated Damages,
if any, on each series of the Notes and to satisfy its other debt service
obligations will depend upon the future operating performance of its
subsidiaries, which will be affected by prevailing economic conditions in the
markets they serve and financial, business and other factors, certain of which
are beyond their control. Based upon the current level of operations,
management believes that cash flow from operations and available cash,
together with available borrowings under the Senior Credit Facilities, will be
adequate to meet the Company's future liquidity needs for at least the next
several years. There can be no assurance that the Company's business will
generate sufficient cash flow from operations or that future borrowings will
be available under the Senior Credit Facilities in an amount sufficient to
enable the Company to service its indebtedness, including each series of the
Notes, or to fund its other liquidity needs. The Company may need to refinance
all or a portion of the principal of each series of the Notes on or prior to
maturity. There can be no assurance that the Company will be able to effect
any such refinancing on commercially reasonable terms or at all. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
The degree to which the Company is leveraged could have important
consequences to Holders of each series of the Notes, including, but not
limited to: (i) making it more difficult for the Company to satisfy its
obligations with respect to each series of the Notes, (ii) increasing the
Company's vulnerability to general adverse economic and industry conditions,
(iii) limiting the Company's ability to obtain additional financing to fund
future working capital, capital expenditures, research and development or
other general corporate requirements, (iv) requiring the dedication of a
substantial portion of the Company's cash flow from operations to the payment
of principal of, and interest on, its indebtedness, thereby reducing the
availability of such cash flow to fund working capital, capital expenditures,
research and development or other general corporate purposes, (v) limiting the
Company's flexibility in planning for, or reacting to, changes in its business
and the industries in which it competes and (vi) placing the Company at a
competitive disadvantage vis-a-vis less leveraged competitors. In addition,
the Indentures and the Senior Credit Facilities contain financial and other
restrictive covenants that limit the ability of the Company to, among other
things, borrow additional funds. Failure by the Company to comply with such
covenants could result in an event of default which, if not cured or waived,
could have a material adverse effect on the Company. In addition, the degree
to which the Company is leveraged could prevent it from repurchasing all of
the Notes tendered to it upon the occurrence of a Change of Control. See
"Description of Certain Indebtedness--The Senior Credit Facilities,"
"Description of the Senior Exchange Notes--Repurchase at the Option of
Holders--Change of Control," and "Description of the Senior Subordinated
Exchange Notes--Repurchase at the Option of Holders--Change of Control."
RANKING
Secured Indebtedness; Effective Subordination. While Holders of Senior
Subordinated Notes are contractually subordinated to Senior Debt, holders of
any secured indebtedness of the Company or its subsidiaries have claims that
are prior to the claims of the Holders of each series of the Notes with
respect to the assets securing such other indebtedness. Notably, the Company
and certain of its subsidiaries (including the Guarantors) are parties to the
Senior Credit Facilities which are secured by certain Liens on the Guarantors.
The
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Senior Notes are effectively subordinated to all such secured indebtedness. In
the event of any distribution or payment of the assets of the Company in any
foreclosure, dissolution, winding-up, liquidation, reorganization or other
bankruptcy proceeding, holders of secured Indebtedness will have a prior claim
to the assets of the Company that constitute their collateral. Holders of the
Senior Notes will participate ratably with all holders of unsecured
Indebtedness of the Company that is deemed to be of the same class as the
Senior Notes, and potentially with all other general creditors of the Company,
based upon the respective amounts owed to each holder or creditor, in the
remaining assets of the Company. In any of the foregoing events, there can be
no assurance that there would be sufficient assets to pay amounts due on the
Senior Notes. As a result, Holders of Senior Notes may receive less, ratably,
than holders of secured indebtedness.
As of May 19, 1998, Citizens Power and its subsidiaries were the only
Unrestricted Subsidiaries of the Company. As of March 31, 1998, Citizens Power
had an aggregate of $293.9 million of indebtedness which is not recourse to
the Company and its other subsidiaries. The covenants under the Indentures do
not restrict the ability of Unrestricted Subsidiaries to incur additional non-
recourse indebtedness.
As of March 31, 1998, on a pro forma basis after giving effect to the
Transactions, $920.0 million of secured Indebtedness of the Company and its
subsidiaries (all of which are borrowings under the Senior Credit Facilities)
would have been outstanding, and $480.0 million would have been available for
additional borrowing under the Senior Credit Facilities, including letters of
credit. The Indentures permit the incurrence of substantial additional secured
indebtedness by the Company and its Restricted Subsidiaries in the future.
Subordination of Senior Subordinated Notes. The Senior Subordinated Notes
are subordinated in right of payment to all current and future Senior Debt of
the Company and the Guarantors, which includes borrowings under the Senior
Credit Facilities and the Senior Notes. However, the Senior Subordinated Note
Indenture provides that the Company will not, and will not permit any of the
Guarantors to, incur or otherwise become liable for any indebtedness that is
subordinate or junior in right of payment to any Senior Debt and senior in any
respect in right of payment to the Senior Subordinated Notes or any of the
Subordinated Subsidiary Guarantees. Upon any distribution to creditors of the
Company in a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, the holders of Senior Debt will be entitled to be
paid in full in cash or Cash Equivalents (as defined) before any payment may
be made with respect to the Senior Subordinated Notes. In addition, the
subordination provisions of the Senior Subordinated Note Indenture provide
that payments with respect to the Senior Subordinated Notes will be blocked in
the event of a payment default on Senior Debt and may be blocked for up to 179
days each year in the event of certain non-payment defaults on Senior Debt. In
the event of a bankruptcy, liquidation or reorganization of the Company,
Holders of the Senior Subordinated Notes will participate ratably with all
holders of subordinated indebtedness of the Company that are deemed to be of
the same class as the Senior Subordinated Notes, and potentially with all
other general creditors of the Company, based upon the respective amounts owed
to each holder or creditor, in the remaining assets of the Company. In any of
the foregoing events, there can be no assurance that there would be sufficient
assets to pay amounts due on the Senior Subordinated Notes. As a result,
Holders of Senior Subordinated Notes may receive less, ratably, than the
holders of Senior Debt.
As of March 31, 1998, on a pro forma basis after giving effect to the
Transactions, the aggregate amount of Senior Debt of the Company and its
subsidiaries (including borrowings under the Senior Credit Facilities) would
have been $1,318.8 million, and $480.0 million would have been available for
additional borrowing under the Senior Credit Facilities, including letters of
credit. The Senior Subordinated Note Indenture permits the incurrence of
substantial additional indebtedness, including Senior Debt, by the Company and
its Restricted Subsidiaries in the future. See "Description of Certain
Indebtedness."
HOLDING COMPANY STRUCTURE; EFFECTIVE SUBORDINATION
The Company has no operations of its own and derives substantially all of
its revenue from its subsidiaries. Holders of indebtedness of, and trade
creditors of, subsidiaries of the Company would generally be entitled to
payment of their claims from the assets of the affected subsidiaries before
such assets were made available for
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distribution to the Company. Each of the Indentures permits the incurrence of
substantial additional indebtedness by the Company and its Restricted
Subsidiaries and permits significant investments by the Company in Restricted
Subsidiaries and requires certain Restricted Subsidiaries that are Domestic
Subsidiaries to guarantee each series of the Notes. In the event of a
bankruptcy, liquidation or reorganization of a subsidiary, holders of any of
such subsidiary's indebtedness will have a claim to the assets of the
subsidiary that is prior to the Company's interest in those assets.
As of March 31, 1998, on a pro forma basis after giving effect to the
Transactions, the aggregate amount of indebtedness and other liabilities of
the Company's Restricted Subsidiaries (including trade payables, land
reclamation and environmental liabilities, workers' compensation liabilities
and retiree health care liabilities) would have been approximately $5,445.6
million and $480.0 million would have been available to the subsidiaries for
additional borrowings under the Senior Credit Facilities including letters of
credit. If any subsidiary indebtedness were to be accelerated, there can be no
assurance that the assets of such subsidiary would be sufficient to repay such
indebtedness or that the assets of the Company and of the other subsidiaries
would be sufficient to repay in full the indebtedness of the Company,
including the Notes. See "Description of Certain Indebtedness."
The Notes are not guaranteed by certain of the Company's Domestic
Subsidiaries or by any Foreign Subsidiaries of the Company. In fiscal 1998,
after giving effect to the Transactions, the Non-Guarantor Subsidiaries
accounted for 11% and 20% of pro forma revenues and EBITDA, respectively, and
as of March 31, 1998, the Non-Guarantor Subsidiaries accounted for 27% of pro
forma assets. The claims of creditors (including trade creditors) of any Non-
Guarantor Subsidiary will generally have priority as to the assets of such
subsidiaries over the claims of the holders of the Notes. As of March 31,
1998, after giving effect to the Transactions, the amount of liabilities of
such Non-Guarantor Subsidiaries would have been $1,578.4 million.
RESTRICTIVE DEBT COVENANTS
Each of the Indentures and the Senior Credit Facilities contains covenants
that restrict, among other things, the ability of the Company to incur
additional indebtedness, pay dividends, make certain investments and capital
expenditures, enter into transactions with affiliates, allow its Restricted
Subsidiaries to make certain payments, make certain asset dispositions, merge
or consolidate with, or transfer substantially all of its assets to another
person, encumber assets under certain circumstances or restrict dividends and
other payments from Restricted Subsidiaries. In addition, the Senior Credit
Facilities restrict the Company from prepaying certain of its indebtedness,
including the Notes. Under the Senior Credit Facilities, the Company is also
required to maintain specified financial covenants, including a minimum fixed
charge coverage ratio and maximum leverage ratio (each as defined in the
Senior Credit Facilities). No assurance can be given that the Company's future
operating results will be sufficient to enable compliance with such covenants,
or in the event of a default, to remedy such default. In the event of a
default under the Senior Credit Facilities, the Company could be prohibited
from making payments of principal and interest on the Notes and all amounts
due under the Senior Credit Facilities could be declared immediately due and
payable. See "Description of Certain Indebtedness," "Description of the Senior
Exchange Notes--Certain Covenants" and "Description of the Senior Subordinated
Exchange Notes--Certain Covenants."
LIMITATION ON CHANGE OF CONTROL OFFER
Upon the occurrence of a Change of Control, each Holder of either series of
Notes will have the right to require the Company to purchase all or a portion
of such Holder's Notes at a price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the purchase date. Further, the provisions of the Indentures may
not afford Holders protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving the
Company, if such transaction does not result in a Change of Control. A change
in control may result in a default under the Senior
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Credit Facilities. Upon a default under the Senior Credit Facilities or other
future Senior Debt, the lenders thereunder could prohibit the Company from
repurchasing the Notes or could require the payment in full of all such Senior
Debt before repurchase of the Notes. The Senior Subordinated Indenture
requires that prior to a repurchase of the Senior Subordinated Notes upon a
Change of Control, the Company must either repay all outstanding indebtedness
under the Senior Credit Facilities or obtain any required consent to such
repurchase. If the Company does not obtain such consent or repay its
outstanding indebtedness under the Senior Credit Facilities, the Company would
remain effectively prohibited from offering to purchase the Senior
Subordinated Notes. In such case, the Company's failure to offer to purchase
the Senior Subordinated Notes could become an Event of Default (as defined)
under the Senior Subordinated Indenture. If a Change of Control were to occur,
there can be no assurance that the Company would have sufficient financial
resources or would be able to arrange financing to repay all of its
obligations under the Senior Credit Faculties, the Indentures and other
indebtedness that may become payable upon the occurrence of such Change of
Control. See "Description of Certain Indebtedness," "Description of the Senior
Exchange Notes--Repurchase at the Option of Holders--Change of Control" and
"Description of the Senior Subordinated Exchange Notes--Repurchase at the
Option of Holders--Change of Control."
LACK OF MARKET FOR THE EXCHANGE NOTES
The Exchange Notes are being offered to the holders of the Old Notes. The
Old Notes were offered and sold in May 1998 to a small number of institutional
investors and are eligible for trading in the Private Offerings, Resales and
Trading through Automated Linkages (PORTAL) Market.
The Company does not intend to apply for a listing of the Exchange Notes on
a securities exchange or on any automated dealer quotation system. There is
currently no established market for the Exchange Notes and there can be no
assurance as to the liquidity of markets that may develop for the Exchange
Notes, the ability of the holders of the Exchange Notes to sell their Exchange
Notes or the price at which such holders would be able to sell their Exchange
Notes. If such markets were to exist, the Exchange Notes could trade at prices
that may be lower than the initial market value thereof depending on many
factors, including prevailing interest rates, the Company's operating results
and the markets for similar securities. The Initial Purchaser has advised the
Company that it currently intends to make a market with respect to the
Exchange Notes. However, the Initial Purchaser is not obligated to do so, and
any market making with respect to the Exchange Notes may be discontinued at
any time without notice. In addition, such market making activity may be
limited during the pendency of the Exchange Offer or the effectiveness of a
shelf registration statement in lieu thereof. Because Lehman Brothers Inc. is
an affiliate of the Company, following consummation of the Exchange Offer,
Lehman Brothers Inc. will be required to deliver a current "market-maker"
prospectus and otherwise comply with the registration requirements of the
Securities Act in connection with any secondary market sale of the Exchange
Notes, which may affect its ability to continue market-making activities. See
"Plan of Distribution".
The liquidity of, and trading market for, the Notes also may be adversely
affected by general declines in the market for similar securities. Such a
decline may adversely affect such liquidity and trading markets independent of
the financial performance of, and prospects for, the Company.
FRAUDULENT CONVEYANCE
Under applicable provisions of federal bankruptcy law or comparable
provisions of state fraudulent transfer law, if, among other things, the
Company or any Guarantor, at the time it incurred the indebtedness evidenced
by each series of the Notes or its Subsidiary Guarantee, (i) (a) was or is
insolvent or rendered insolvent by reason of such occurrence or (b) was or is
engaged in a business or transaction for which the assets remaining with the
Company or such Guarantor constituted unreasonably small capital or (c)
intended or intends to incur, or believed or believes that it would incur,
debts beyond its ability to pay such debts as they mature and (ii) the
Company,
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or such Guarantor received or receives less than reasonably equivalent value
or fair consideration for the incurrence of such indebtedness, then each
series of the Notes and the Subsidiary Guarantees, and any pledge or other
security interest securing such indebtedness, could be voided, or claims in
respect of either series of the Notes or the Subsidiary Guarantees could be
subordinated to all other debts of the Company or such Guarantor, as the case
may be. In addition, the payment of interest and principal by the Company
pursuant to either series of the Notes or the payment of amounts by a
Guarantor pursuant to a Subsidiary Guarantee could be voided and required to
be returned to the person making such payment, or to a fund for the benefit of
the creditors of the Company or such Guarantor, as the case may be.
The measures of insolvency for purposes of the foregoing considerations will
vary depending upon the law applied in any proceeding with respect to the
foregoing. Generally, however, the Company or a Guarantor would be considered
insolvent if (i) the sum of its debts, including contingent liabilities, were
greater than the saleable value of all of its assets at a fair valuation or if
the present fair saleable value of its assets was less than the amount that
would be required to pay its probable liability on its existing debts,
including contingent liabilities, as they become absolute and mature or (ii)
it could not pay its debts as they become due.
On the basis of historical financial information, recent operating history
and other factors, the Company believes that on a consolidated basis after
giving effect to the Transactions, it will not be insolvent, will not have
unreasonably small capital for the business in which it is engaged and will
not incur debts beyond its ability to pay such debts as they mature. There can
be no assurance, however, as to what standard a court would apply in making
such determinations or that a court would agree with the Company's or the
Guarantors' conclusions in this regard.
Certain subsidiaries of the Company that are endorsing Subsidiary Guarantees
on each series of the Notes have significant liabilities associated with
reclamation, workers' compensation (including black-lung), and retiree health
care. See "--Government Regulation of the Mining Industry" and "--
Postretirement Benefits and Pension Plan Liabilities." The Company has not
analyzed the solvency of these subsidiaries with respect to the standards a
court would apply in making a determination as to the solvency of such
subsidiaries on a stand-alone basis. There can be no assurance that funds may
be realized on such Subsidiary Guarantees or that the guarantees issued by
such Guarantor (if a court were to determine that such Guarantor did not
receive fair consideration or reasonably equivalent value for such guarantee)
would not be voided or subordinated under constructive fraudulent conveyance
laws.
RISKS RELATING TO THE COMPANY
RELIANCE ON LONG-TERM COAL SUPPLY CONTRACTS
A substantial portion of the Company's coal is sold pursuant to CSAs, which
are important to the stability and profitability of the Company's operations.
The execution of a satisfactory CSA is frequently the basis on which the
Company undertakes the development of coal reserves required to be supplied
under the contract. Peabody has a large portfolio of CSAs. In fiscal 1998, 92%
of Peabody's sales volume was sold under CSAs. At March 31, 1998, the
Company's CSAs had terms ranging from one to 17 years and had an average
volume-weighted remaining term of 5.7 years.
Many of the Company's CSAs contain price reopener provisions which provide
for the contract price to be adjusted upward or downward at specified times.
Failure of the parties to agree on a price pursuant to such reopener
provisions may lead to early termination of the contracts. Over the last few
years, several of the Company's CSAs have been renegotiated, bringing the
contract prices closer to the then current market prices, thus leading to a
reduction in the revenues from such contracts. A similar reduction in contract
prices has also
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been experienced in relation to the replacement of expiring contracts. The
CSAs also typically contain force majeure provisions allowing temporary
suspension of performance by the Company or the customer during the duration
of certain events beyond the control of the affected party. Most CSAs contain
provisions requiring the Company to deliver coal within certain ranges for
specific coal characteristics such as Btus, sulfur, ash, grindability and ash
fusion temperature. Failure to meet these specifications could result in
economic penalties or termination of the contracts.
The Company restructures its CSAs in the normal course of business. In
connection with such restructurings, the Company recognized gains ranging from
$4.4 million in fiscal 1993 to $49.3 million in fiscal 1998. There can be no
assurance that the Company will be able to realize such gains in connection
with future CSA restructurings.
The operating profit margins realized by the Company under its CSAs depend
on a variety of factors. In addition, price adjustment, price reopener and
other provisions may reduce the insulation from any short-term coal price
volatility provided by such contracts. If a substantial portion of the
Company's CSAs were modified or terminated, the Company could be materially
adversely affected to the extent that it is unable to find alternate buyers
for its coal at the same level of profitability. Because the price of coal has
declined in recent years, many of the Company's CSAs are for prices above
current spot market prices. There can be no assurance that the Company will be
able to replace these contracts at the same prices or with similar profit
margins when they expire. In addition, certain CSAs are the subject of ongoing
litigation. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations," "Business--Long-Term Coal Contracts" and
"Business--Legal Proceedings."
TRANSPORTATION RISKS
Coal producers depend upon rail, barge, trucking, overland conveyor and
other systems to provide access to markets. While customers typically arrange
and pay for transportation of coal from the mine to the point of use,
disruption of these transportation services because of weather-related
problems, strikes, lock-outs or other events could temporarily impair the
Company's ability to supply coal to its customers and thus could adversely
affect the Company's business, financial condition and results of operations.
For example, the high volume of coal shipped from all southern Powder River
Basin mines (approximately 270 million tons in 1997, or 25% of all U.S. coal
shipments) could create temporary congestion on the rail system accessing that
region.
Transportation costs represent a significant portion of the total cost of
coal, and as a result, the cost of delivery is a critical factor in a
customer's purchasing decision. Increases in transportation costs could make
coal a less competitive source of energy or could make certain of the
Company's operations less competitive than other sources of coal. Such
increases could have a material adverse effect on the Company's ability to
compete and on its business, financial condition and results of operations.
In Australia, the Company transports coal using the Hunter River Valley
Railroad and the coal loading terminal at the Port of Newcastle. The Port of
Newcastle has had problems with ship congestion in the past. Such congestion
could delay shipments from Peabody Resources' Warkworth mine and the Bengalla
mine, currently under construction.
RISKS INHERENT TO MINING
The Company's mining operations are subject to conditions beyond the
Company's control which can increase the cost of mining at particular mines
for varying lengths of time. These conditions include weather and natural
disasters, unexpected maintenance problems, key equipment failures, variations
in coal seam thickness, variations in the amount of rock and soil overlying
the coal deposit, variations in rock and other natural materials and
variations in geological and other conditions.
RESTRUCTURING OF AUSTRALIAN COAL INDUSTRY
The coal mining industry in Australia is going through a process of
restructuring in an effort to improve the industry's international
competitiveness. This restructuring is directed at improving workforce
flexibility through
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training workers to perform multiple tasks and eliminating existing
inflexibilities in work practices. Certain major coal mining companies have
also attempted to employ non-union labor and to move away from negotiated
collective bargaining awards to individual contracts of employment. While to
date these changes have been accomplished without major industrial disruption,
there can be no assurance that this state of affairs will continue or that
further restructuring will not cause major work stoppages in the future.
GOVERNMENT REGULATION OF THE MINING INDUSTRY
General. The coal mining industry is subject to regulation by federal, state
and local authorities on matters such as employee health and safety,
permitting and licensing requirements, air quality standards, water pollution,
plant and wildlife protection, reclamation and restoration of mining
properties after mining is completed, the discharge of materials into the
environment, surface subsidence from underground mining and the effects that
mining has on groundwater quality and availability. In addition, the industry
is affected by significant legislation mandating certain benefits for current
and retired coal miners. Numerous governmental permits and approvals are
required for mining operations. The Company may be required to prepare and
present to federal, state or local authorities data pertaining to the effect
or impact that any proposed exploration for or production of coal may have
upon the environment. All requirements imposed by any such authority may be
costly and time-consuming and may delay commencement or continuation of
exploration or production operations. The possibility exists that new
legislation and/or regulations and orders may be adopted which may materially
adversely affect the Company's mining operations, its cost structure and/or
its customers' ability to use coal. New legislation, including proposals
related to the protection of the environment which would further regulate and
tax the coal industry, may also require the Company or its customers to change
their operations significantly or incur increased costs. Such factors and
legislation, if enacted, could have a material adverse effect on the Company's
business, financial condition and results of operations. See "Regulatory
Matters."
Reclamation and Mine Closure Accruals. The Federal Surface Mining Control
and Reclamation Act of 1977 ("SMCRA") and similar state statutes require that
mine property be restored in accordance with specified standards and an
approved reclamation plan and require that the Company obtain and periodically
renew permits for mining operations. The Company accrues for the costs of
final mine closure over the estimated useful mining life of the property and
expenses current mine disturbance as part of the ongoing mining process. The
establishment of the final mine closure reclamation liability and the current
disturbance is based upon permit requirements and requires various estimates
and assumptions, principally associated with costs and production levels.
Annually, the Company reviews its entire environmental liability under SMCRA
and makes necessary adjustments, including mine reclamation plan and permit
changes and revisions to costs and production levels to optimize mining and
reclamation efficiency. The economic impact of such adjustments is recorded to
the cost of coal sales. The long-term reclamation costs, mine-closing costs
and other environmental liability accruals totaled approximately $490.1
million on the Company's pro forma balance sheet as of March 31, 1998, $20.3
million of which is categorized as Other Noncurrent Liabilities and $8.5
million of which is a current liability. The amount that was included as an
operating expense for the pro forma twelve month period ended March 31, 1998
was $12.4 million, while the related cash expense for such liability in such
period was $39.1 million. Although the Company's management believes it is
making adequate provisions for all expected reclamation and other costs
associated with mine closures, future operating results would be adversely
affected if such accruals were later determined to be insufficient.
Impact of Clean Air Act Amendments on Coal Consumption. The Clean Air Act
and the Clean Air Act Amendments, and corresponding state laws that regulate
the emissions of materials into the air, affect coal mining operations both
directly and indirectly. Direct impacts on coal mining and processing
operations may occur through Clean Air Act permitting requirements and/or
emissions control requirements relating to particulate matter (e.g., "fugitive
dust"), including future regulation of fine particulate matter measuring 2.5
micrometers in diameter or smaller. In July 1997, the U.S. Environmental
Protection Agency ("EPA") adopted new, more stringent National Ambient Air
Quality Standards ("NAAQS") for particulate matter and ozone. As a result,
some states will be required to change their existing implementation plans to
attain and maintain compliance with the new NAAQS. Because coal mining
operations emit particulate matter, the Company's
26
<PAGE>
mining operations are likely to be affected directly when the revisions to the
NAAQS are implemented by the states. State and federal regulations relating to
implementation of the new NAAQS may restrict the Company's ability to develop
new mines or could require the Company to modify its existing operations. The
extent of the potential direct impact of the new NAAQS on the coal industry
will depend on the policies and control strategies associated with the state
implementation process under the Clean Air Act, but could have a material
adverse effect on the Company's business, financial condition and results of
operations.
The Clean Air Act indirectly affects coal mining operations by extensively
regulating the air emissions of SO/2/ and other compounds including nitrogen
oxides emitted by coal-fueled utility power plants. Title IV of the Clean Air
Act Amendments places limits on SO/2/ emissions from electric power generation
plants. The limits set baseline emission standards for such facilities.
Reductions in such emissions under Title IV of the Clean Air Act Amendments
will occur in two phases: (i) Phase I began in 1995 and applies only to
certain identified facilities; and (ii) Phase II is scheduled to begin in 2000
and will apply to all coal-fired power plants, including those subject to the
1995 restrictions. The affected utilities have been and may be able to meet
these requirements by, among other methods, switching to lower sulfur coal or
other low sulfur fuels, installing pollution control devices such as
scrubbers, reducing electricity generating levels or purchasing excess
emission allowances from other facilities. See "Coal Industry Overview--Coal
Markets." The effect of these provisions of the Clean Air Act Amendments on
the Company cannot be fully determined at this time. The Company believes that
implementation of Phase II will likely exert a downward pressure on the price
of higher sulfur coal, as additional coal-burning utility power plants become
subject to the restrictions of Title IV. This price effect is expected to
result after the large surplus of emission allowances which has accumulated in
connection with Phase I has been reduced, and before utilities electing to
comply with Phase II by installing sulfur-reduction technologies are able to
implement such a compliance strategy. The extent to which this expected price
decrease will materially adversely affect the Company will depend upon a
number of factors, including the Company's ability to secure CSAs for its coal
reserves with higher sulfur content.
The Clean Air Act Amendments also indirectly affect coal mining operations
by requiring utilities that currently are major sources of nitrogen oxides in
moderate or higher ozone nonattainment areas to install reasonably available
control technology ("RACT") for nitrogen oxides, which are precursors of
ozone. In addition, the recently issued, stricter ozone NAAQS standards, as
discussed above, are expected to be implemented by EPA by 2003. EPA recently
announced a proposal (the "SIP call") that would require 22 eastern states to
make substantial reductions in nitrogen oxide emissions. EPA expects such
states will achieve these reductions by requiring power plants to make
substantial reductions in their nitrogen oxide emissions. Installation of RACT
and additional control measures required under the SIP call will make it more
costly to operate coal-fired plants and, depending on the requirements of
individual state attainment plans and the development of revised new source
performance standards, could make coal a less attractive fuel alternative in
the planning and building of utility power plants in the future. Any reduction
in coal's share of the capacity for power generation could have a material
adverse effect on the Company's business, financial condition and results of
operations. The effect such regulations or other requirements that may be
imposed in the future could have on the coal industry in general and on the
Company in particular cannot be predicted with certainty. No assurance can be
given that the implementation of the Clean Air Act Amendments, the new NAAQS
or any other future regulatory provisions will not materially adversely affect
the Company.
Impact of the Framework Convention on Global Climate Change on the Coal
Industry. The United States, Australia and more than 160 other nations are
signatories to the 1992 Framework Convention on Global Climate Change (the
"Convention") which is intended to limit or capture emissions of greenhouse
gases, such as carbon dioxide. In December 1997 in Kyoto, Japan, the
signatories to the Convention established a binding set of emissions targets
for developed nations (the "Kyoto Protocol"). Although the specific limits
vary from country to country, under the terms of the Kyoto Protocol, the
United States would be required to reduce emissions to 93% of 1990 levels over
a five-year budget period from 2008 through 2012. Although the United States
has not ratified the Kyoto Protocol and no comprehensive regulations focusing
on greenhouse gas emissions are in place, efforts to control greenhouse gas
emissions could result in reduced use of coal if electric power generators
switch
27
<PAGE>
to lower carbon sources of fuel. It is unclear what impact, if any, greenhouse
gas restrictions may have on the Company's operations. There is no guarantee,
however, that such restrictions, if established through regulation or
legislation, will not have a material adverse effect on the Company's
business, financial condition and results of operations.
Impact of Federal and State Superfund Statutes on Coal Mining Operations and
Past Hard Rock Mining Operations. Risks of environmental liability are
inherent with respect to both current and past coal mining and hard rock
mining activities. The Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA" or "Superfund") and similar state laws create
liability for investigation and remediation in response to releases of
substances hazardous to the environment and for damages to natural resources.
Under CERCLA and many state Superfund statutes, joint and several liability
may be imposed on waste generators, site owners and operators and others
regardless of fault.
In connection with the spin-off of The Energy Group from Hanson, The Energy
Group assumed environmental obligations associated with certain former non-
coal mining operations of Gold Fields Mining Corporation ("Gold Fields") and
its former parent company. Gold Fields, its predecessors and its former parent
company are or may become parties to environmental proceedings which have
commenced or may commence in the United States in relation to certain sites
previously owned or operated by those entities or companies associated with
them. The Company has agreed to indemnify Gold Field's former parent company
for any environmental claims resulting from any activities, operations or
conditions that occurred prior to the sale of Gold Fields to the Company. Gold
Fields is currently involved in environmental investigation or remediation at
six sites and is a defendant in litigation with private parties involving
three other sites. These nine sites were formerly owned or operated by Gold
Fields. EPA has placed three of these sites on the National Priorities List,
promulgated pursuant to CERCLA, and one of the sites is on a similar state
priority list. There are a number of other sites in the United States which
were previously owned or operated by such companies and which could give rise
to environmental proceedings in which Gold Fields could incur liabilities.
Where such sites were identified, the directors of The Energy Group
commissioned, in connection with the spin-off of The Energy Group, a review of
publicly available information by independent environmental consultants in
order to assess the estimated total amount of the liability per site and the
proportion of those liabilities which Gold Fields is likely to bear. The
available information on which to base this review was very limited since all
of the sites (except for three sites on which no remediation is currently
taking place) are no longer owned by Gold Fields.
On the basis of that review, The Energy Group has provided for the above
environmental liabilities relating to Gold Fields in the total sum of $73.6
million as of March 31, 1997. Significant uncertainty exists as to whether
these claims will be pursued against Gold Fields in all cases, and where they
are pursued, the amount of the eventual costs and liabilities, which could be
greater or less than this provision. As of March 31, 1998, the provision was
reduced to $68.6 million to reflect expenditures incurred during the period.
The Company believes that the remaining amount of the provision is adequate to
cover these environmental liabilities.
Although waste substances generated by coal mining and processing are
generally not regarded as hazardous substances for the purposes of CERCLA,
some products used by coal companies in operations, such as chemicals, and the
disposal of such products are governed by the statute. Thus, coal mines
currently or previously owned or operated by the Company, and sites to which
the Company sent waste materials, may be subject to liability under CERCLA and
similar state laws. In addition to the Gold Fields liabilities associated with
CERCLA and similar state laws, the Company's current and former coal mining
operations presently incur, and will continue to incur, expenditures
associated with the investigation and remediation of environmental matters,
including acid mine drainage, land subsidence, underground storage tanks,
solid and hazardous waste disposal and other matters.
While the Company believes that it has identified costs likely to be
incurred for these environmental matters, and that those costs are not likely
to have a material adverse effect upon its business, financial condition and
28
<PAGE>
results of operations, there can be no assurance that total costs and
liabilities for these environmental matters will not increase in the future.
The magnitude of such additional liabilities and the costs of complying with
these environmental laws cannot be predicted with certainty due to the lack of
specific information available with respect to many sites, the potential for
new or changed laws and regulations and for the development of new remediation
technologies and the uncertainty regarding the timing of work with respect to
particular sites. As a result, there can be no assurance that material
liabilities or costs related to environmental matters will not be incurred in
the future or that the Company's liquidity will not be adversely impacted by
such environmental liabilities or costs.
Black Lung and Workers' Compensation Obligations. Under the Black Lung
Benefits Revenue Act of 1977 and the Black Lung Benefits Reform Act of 1977,
as amended in 1981, each coal mine operator is required to secure payment of
federal black lung benefits to claimants who are current and former employees
and to a trust fund for the payment of benefits and medical expenses to
claimants who last worked in the coal industry prior to July 1, 1973. Less
than 7% of the miners currently seeking federal black lung benefits are
awarded such benefits by the federal government. The trust fund is funded by
an excise tax on production of up to $1.10 per ton for deep-mined coal and up
to $0.55 per ton for surface-mined coal, neither amount to exceed 4.4% of the
per ton sales price. This tax is passed on to the purchaser under many of the
Company's CSAs.
Legislation on black lung reform was introduced but not enacted in the last
Congress. It is possible that such legislation will be reintroduced for
consideration by the current Congress. Such legislation could restrict the
evidence that can be offered by a mining company, establish a standard for
evaluation of evidence that greatly favors black lung claimants, allow
claimants who have been denied benefits at any time since 1981 to refile their
claims for consideration under the new law, make surviving spouse benefits
significantly easier to obtain and retroactively waive repayment of
preliminarily awarded benefits that are later determined to have been
improperly paid. If this or similar legislation is passed, the number of
claimants who are awarded benefits could significantly increase. There can be
no assurance that such proposed legislation or other proposed changes in black
lung legislation will not have an adverse effect on the Company.
The U.S. Department of Labor has issued proposed amendments to the
regulations implementing the federal black lung laws which, among other
things, establish a presumption in favor of a claimant's treating physician
and limit a coal operator's ability to introduce medical evidence regarding
the claimant's medical condition. If adopted, the amendments could have an
adverse impact on the Company, the extent of which cannot be accurately
predicted.
Additionally, the Company is required to compensate employees for work-
related injuries. The Company's workers' compensation liabilities (including
black lung claims) totaled approximately $263.8 million on the Company's pro
forma balance sheet as of March 31, 1998, $39.9 million of which is a current
liability. The amount that was included as an operating expense for the pro
forma twelve month period ended March 31, 1998 was $25.2 million, while the
related cash expense for such liability was $41.9 million.
POSTRETIREMENT BENEFITS AND PENSION PLAN LIABILITIES
The Company provides postretirement health and life insurance benefits to
eligible union and non-union employees. The Company has calculated the total
accumulated postretirement benefit obligation under SFAS No. 106, "Employers'
Accounting for Postretirement Benefits Other Than Pensions" ("SFAS 106") and
estimates that at March 31, 1998, the pro forma present value of such future
obligation was approximately $1,036.3 million, $48.9 million of which is a
current liability. These obligations have been estimated by the Company based
on assumptions described in the notes to the financial statements. If the
Company's assumptions do not materialize as expected, cash expenditures and
costs that the Company would incur could be materially higher than those
reflected in the Company's Unaudited Pro Forma Condensed Combined Financial
Statements.
29
<PAGE>
REPLACEMENT AND RECOVERABILITY OF RESERVES
The Company's future success depends upon its ability to find, develop or
acquire additional coal reserves that are economically recoverable. The
recoverable reserves of the Company will generally decline as reserves are
depleted, except to the extent that the Company conducts successful
exploration and development activities or acquires properties containing
recoverable reserves. To increase reserves and production, the Company must
continue its development, exploration and acquisition activities or undertake
other replacement activities. The Company's current strategy includes
increasing its reserve base through acquisitions of government leases and
other leases and producing properties and continuing to exploit its existing
properties. There can be no assurance, however, that the Company's planned
development and exploration projects and acquisition activities will result in
significant additional reserves or that the Company will have continuing
success developing additional mines. For a discussion of the Company's
reserves, see "Business--Coal Reserves." Most of the Company's mining
operations are conducted on properties owned or leased by the Company. Because
title to most of the Company's leased properties and mineral rights is not
thoroughly verified until a permit to mine the property is obtained, the
Company's right to mine certain of its reserves may be materially adversely
affected if defects in title or boundaries exist. In addition, there is no
assurance that the Company can successfully negotiate new leases from the
government or private parties or mining contracts for properties containing
additional reserves or maintain its leasehold interest in properties on which
mining operations are not commenced during the term of the lease. See
"Business--Coal Reserves."
SURETY BONDS
Federal and state laws require bonds to secure the Company's obligations to
reclaim lands disturbed for mining, to pay federal and state workers'
compensation and to satisfy other miscellaneous obligations (the "Surety
Bonds"). As of March 31, 1998, the Company had outstanding Surety Bonds with
third parties for post-mining reclamation totaling $372.4 million, with an
additional $277.3 million in self-bonding obligations. Furthermore, Surety
Bonds valued at an additional $123.3 million are in place for federal and
state workers' compensation obligations and other miscellaneous obligations.
These bonds are typically renewable on a yearly basis. No assurance can be
given that the Surety Bond holders will continue to renew the bonds or refrain
from demanding additional collateral upon such renewals. Furthermore, as a
result of the Financings, the Company is highly leveraged, making it unlikely
that the Company will be able to continue its self-bonding program and thus
requiring it to obtain additional third-party Surety Bonds. The failure to
maintain or the inability to acquire sufficient Surety Bonds, as required by
state and federal law, would have a material adverse effect on the Company and
therefore create certain risks for the purchasers of the Notes. Such failure
could result from a variety of factors including the following: (i) lack of
availability, higher expense or unreasonable terms of new Surety Bonds, (ii)
restrictions on the demand for collateral by current and future third-party
Surety Bond holders due to the terms of the Indentures or the Senior Credit
Facilities and (iii) the exercise by third-party Surety Bond holders of their
right to refuse to renew the surety.
PRICE FLUCTUATIONS AND MARKETS
The Company's results of operations are highly dependent upon the prices
received for the Company's coal. Although in fiscal 1998, 92% of the Company's
sales were made pursuant to CSAs, many of the Company's CSAs contain price
reopener provisions which provide for the contract price to be adjusted upward
or downward at specified times. See "Business--Long-Term Coal Contracts." Any
significant decline in prices for coal could have a material adverse effect on
the Company's business, financial condition, results of operations and
quantities of reserves recoverable on an economic basis. Should the industry
experience significant price declines from current levels or other adverse
market conditions, the Company may not be able to generate sufficient cash
flow from operations to meet its obligations, including debt service
obligations under the Notes, and make planned capital expenditures. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
30
<PAGE>
The availability of a ready market for the Company's coal production also
depends on a number of factors, including the demand and supply of low sulfur
coal and the availability of emission allowances. See "--Government Regulation
of the Mining Industry--Impact of Clean Air Act Amendments on Coal
Consumption."
COMPETITION
The coal industry is highly competitive, with numerous producers in all coal
producing regions. The Company competes with other large producers and
hundreds of small producers in the United States and abroad. Many of the
Company's customers are also customers of the Company's competitors. The
markets in which the Company sells its coal are highly competitive and
affected by factors beyond the Company's control. Continued demand for the
Company's coal and the prices that the Company will be able to obtain will
depend primarily on coal consumption patterns of the domestic electric utility
industry, which in turn are affected by the demand for electricity, coal
transportation costs, environmental and other governmental regulations and
orders, technological developments and the availability and price of competing
alternative energy sources such as oil, natural gas, nuclear energy and
hydroelectric energy. See "Regulatory Matters." In addition, during the mid-
1970s and early 1980s, a growing coal market and increased demand for coal
attracted new investors to the coal industry and spurred the development of
new mines and added production capacity throughout the industry. Although
demand for coal has grown over the recent past, the industry has since been
faced with over-capacity, which in turn has increased competition and lowered
prevailing coal prices. Moreover, because of greater competition for
electricity and increased pressure from customers and regulators to lower
electricity prices, public utilities are lowering fuel costs and requiring
competitive prices on their purchases of coal.
UNIONIZATION OF LABOR FORCE
Approximately 56% of the Company's U.S. coal employees, who accounted for
35% of Peabody's U.S. coal production in 1997, are represented by the UMWA.
The Australian coal mining industry is highly unionized and the majority of
workers employed at Peabody Resources are members of trade unions. Certain of
the Company's competitors have non-union work forces. Because of the increased
risk of strikes and other work-related stoppages in addition to higher labor
costs which may be associated with union operations in the coal industry, the
Company's non-unionized competitors may have a competitive advantage in areas
where they compete with the Company's unionized operations. If some or all of
the Company's current non-union operations were to become unionized, the
Company could incur an increased risk of work stoppages and higher labor
costs. The ten month long UMWA strike in 1993 had a material adverse effect on
the Company. The Company's Peabody Coal Company ("PCC") and Eastern Associated
Coal Corp. ("Eastern Associated") subsidiaries operate under a union contract
which is in effect through December 31, 2002 and the Company's Peabody Western
Coal Company ("Peabody Western") subsidiary operates under a union contract
which is in effect through August 31, 2000. Peabody Resources' Warkworth mine
operates under a labor agreement which expires in September 1999. Peabody
Resources' Ravensworth and Namara mines operated under a labor agreement which
expired in March 1998, and while negotiations on a new labor agreement are
ongoing and there have been no resulting work stoppages since the expiration
of the agreement, there can be no assurance that such negotiations will be
successful. There can be no assurance that the Company's unionized labor will
not go on strike upon expiration of existing contracts. See "Business--
Employees of the Company."
CONTROL BY LEHMAN MERCHANT BANKING
As a result of the Transactions, a substantial majority of the Company's
outstanding equity is owned by Lehman Merchant Banking. Lehman Merchant
Banking is able to control the election of the directors of the Company and to
determine the corporate and management policies of the Company, including
decisions relating to any mergers or acquisitions of the Company, sales of all
or substantially all of the Company's assets and other significant corporate
transactions, which transactions may result in a Change of Control under the
Indentures. See "Ownership of Capital Stock."
31
<PAGE>
DEPENDENCE ON KEY PERSONNEL
The Company's business is managed by a number of key personnel, the loss of
which could have a material adverse effect on the Company. In addition, as the
Company's business develops and expands, the Company believes that its future
success will depend greatly on its continued ability to attract and retain
highly skilled and qualified personnel. The Company is negotiating employment
agreements with certain senior executive officers. There can be no assurance
that key personnel will continue to be employed by the Company or that the
Company will be able to attract and retain qualified personnel in the future.
Failure by the Company to retain or attract such key personnel could have a
material adverse effect on the Company. See "Management."
LIMITED RIGHTS OF RECOVERY AGAINST SELLERS
The Acquisition is part of the acquisition of The Energy Group by TU. TU
acquired The Energy Group pursuant to a competitive bidding process in the
United Kingdom. As a result, the Company was subject to certain restrictions
on access to information imposed by U.K. law, as well as practical
restrictions imposed by the competitive process on its ability to obtain
representations, warranties and indemnity rights. Generally, the Company only
received representations, warranties and indemnities related to the seller's
authority to sell the Acquired Companies, its ownership of the Acquired
Companies and certain assignments of the benefit of certain limited tax
indemnities from Hanson. Consequently, there may be liabilities and
contingencies, such as environmental, tax, employee benefit or other items,
relating to the business of the Company for which the Company may not be
entitled to indemnification and which could have a material adverse effect on
the financial condition of the Company.
ABILITY TO IMPROVE PRODUCTIVITY AND REDUCE COSTS
The Company has historically improved productivity and reduced costs of its
operations. There can be no assurance that the Company will continue to
achieve comparable improvements in the future. In addition, while the Company
intends to implement plans to reduce operating costs and improve efficiencies,
there can be no assurance that such efforts will be successful.
IMPACT OF YEAR 2000 ISSUE
An issue exists for all companies that rely on computers as the year 2000
approaches. The year 2000 issue (the "Year 2000 Issue") is the result of the
past practice in the computer industry of using two digits rather than four to
identify the applicable year. This practice may result in incorrect results
when computers perform arithmetic operations, comparisons or data field
sorting and some non-information systems functions that rely on computers
involving years later than 1999. The Company has implemented a program that it
anticipates will be able to test its entire system using its internal
programming staff and outside computer consultants and intends to make any
necessary modifications to prevent disruption to its operations. Costs in
connection with any such modifications are not expected to be material.
However, if such modifications are not completed in a timely manner, the Year
2000 Issue may have a material adverse effect on the operations of the
Company. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Impact of Year 2000 Issue."
32
<PAGE>
USE OF PROCEEDS
There will be no proceeds to the Company from the exchange of Old Notes for
Exchange Notes pursuant to the Exchange Offers.
The net proceeds received by the Company from the Offerings of the Old
Notes, together with the borrowings under the Term Loan Facility and the
equity contribution by Lehman Merchant Banking and management, were used upon
consummation of the Acquisition to (i) pay $2,065.0 million for the purchase
of the Acquired Companies, (ii) repay existing U.S. long-term debt of $3.0
million, (iii) pay the Citizens Power Obligations of $92.0 million, (iv)
capitalize Citizens Power's energy trading operations with $50.0 million, (v)
increase cash balances by $12.4 million and (vi) pay an estimated $75.0
million in transaction fees and expenses incurred in connection with the
Transactions. See "The Acquisition" and "Capitalization."
CAPITALIZATION
The following table sets forth the historical and pro forma capitalization
of the Company, excluding non-recourse long-term debt of Citizens Power of
$293.9 million, as of March 31, 1998, giving effect to the Transactions.
<TABLE>
<CAPTION>
AS OF MARCH 31,
1998
------------------
ACTUAL PRO FORMA
-------- ---------
(IN MILLIONS)
<S> <C> <C>
Senior Credit Facilities
Revolving Credit Facility.............................. $ -- $ --
Term Loan Facility..................................... -- 920.0
Senior Notes............................................. -- 398.8
Senior Subordinated Notes................................ -- 498.6
Existing U.S. Long-Term Debt............................. 6.1 3.1
Peabody Resources Debt................................... 44.7 77.0
5% Subordinated Note..................................... 192.6 200.5
Citizens Power Obligations............................... 65.0 --
-------- --------
Total Debt............................................. $ 308.4 $2,098.0
Invested Capital......................................... 1,687.8 480.0
-------- --------
Total Capitalization............................... $1,996.2 $2,578.0
======== ========
</TABLE>
33
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
The following Unaudited Pro Forma Condensed Combined Financial Statements of
the Company are based on the audited and unaudited financial statements of the
Company appearing elsewhere in this Prospectus as adjusted to illustrate the
estimated pro forma effects of the Transactions. The unaudited pro forma
adjustments are based upon available information and certain assumptions that
the Company believes are reasonable. The Unaudited Pro Forma Condensed
Combined Financial Statements and accompanying notes should be read in
conjunction with the Combined Financial Statements of the Company and other
financial information pertaining to the Company appearing elsewhere in this
Prospectus, including "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
The Unaudited Pro Forma Condensed Combined Financial Statements have been
prepared to give pro forma effect to the Transactions as if such transactions
had occurred on April 1, 1997 for the statement of operations for the year
ended March 31, 1998 (the "Unaudited Pro Forma Condensed Combined Statements
of Operations") and on March 31, 1998 for the balance sheet data (the
"Unaudited Pro Forma Condensed Combined Balance Sheet" together with the
Unaudited Pro Forma Condensed Combined Statements of Operations comprise the
"Unaudited Pro Forma Condensed Combined Financial Statements").
The unaudited pro forma adjustments are based upon preliminary estimates.
Actual adjustments will be based on the final purchase price subject to
purchase price adjustments and other analyses of fair values. The Unaudited
Pro Forma Condensed Combined Financial Statements should be read in
conjunction with the Combined Financial Statements and notes of the Company
included elsewhere in this Prospectus. The unaudited pro forma data are for
informational purposes only and may not be indicative of the results that
actually would have occurred had the Transactions been in effect on the dates
indicated or results that may be obtained in the future. Moreover, the
Unaudited Pro Forma Condensed Combined Statements of Operations do not reflect
any cost reductions associated with any reorganization plans currently under
consideration.
The Unaudited Pro Forma Condensed Combined Financial Statements reflect the
Acquisition with an estimated equity purchase price of $2,065.0 million plus
estimated transaction costs of $75.0 million. The Acquisition was financed
with $480.0 million of equity contributed by Lehman Merchant Banking and
members of the Company's management and borrowings of $1,817.4 million, of
which $145.0 million was used to repay existing debt and to capitalize
Citizens Power.
34
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
AS OF MARCH 31, 1998
<TABLE>
<CAPTION>
PURCHASE
HISTORICAL ACCOUNTING FINANCING PRO FORMA
MARCH 31, 1998(/1/) ADJUSTMENTS(/2/) ADJUSTMENTS(/3/) MARCH 31, 1998
------------------- ---------------- ---------------- --------------
(IN MILLIONS)
<S> <C> <C> <C> <C>
ASSETS:
Current Assets
Cash and Equivalents... $ 96.9 $ -- $ 62.4 j $ 159.3
Accounts Receivable.... 326.5 -- -- 326.5
Receivables From
Affiliates............ 112.7 -- (141.0)k (28.3)
Materials and
Supplies.............. 67.3 -- -- 67.3
Coal Inventory......... 197.5 -- -- 197.5
Other Current Assets... 1,325.2 -- -- 1,325.2
--------- ------ --------- ---------
Total Current
Assets.............. $ 2,126.1 $ -- $ (78.6) $ 2,047.5
Property, Plant and Mine
Development
Land and Coal
Interests............. 3,075.9 897.6 c -- 3,973.5
Building and
Improvements.......... 721.9 -- -- 721.9
Machinery and
Equipment............. 1,441.1 -- -- 1,441.1
Less--Accumulated
Depreciation,
Depletion and
Amortization.......... (1,565.4) (18.5)b -- (1,583.9)
--------- ------ --------- ---------
Property, Plant and
Mine Development,
Net................... $ 3,673.5 $879.1 $ -- $ 4,552.6
Investments and Other
Assets................. 479.4 (13.2)b 75.0 l 576.2
35.0 c
Goodwill................ 76.2 27.0 d -- 103.2
--------- ------ --------- ---------
Total Assets......... $ 6,355.2 $927.9 $ (3.6) $ 7,279.5
========= ====== ========= =========
LIABILITIES AND INVESTED
CAPITAL:
Current Liabilities
Short-term Borrowings
and Current
Maturities of
Long-term Debt
Recourse............. $ 33.8 $ -- $ (0.8)n $ 81.8
48.8 m
Non-Recourse(/4/).... 12.8 -- -- 12.8
Income Taxes Payable... 2.4 -- -- 2.4
Deferred Income
Taxes................. 6.0 -- -- 6.0
Accounts Payable and
Accrued Expenses...... 1,535.2 20.0 e -- 1,555.2
--------- ------ --------- ---------
Total Current
Liabilities......... $ 1,590.2 $ 20.0 $ 48.0 $ 1,658.2
Long-term Debt, Less
Current Maturities
Recourse............. 274.6 7.9 f 1,800.9 m 2,016.2
27.0 d (2.2)n
(92.0)n
Non-Recourse(/4/).... 281.1 -- -- 281.1
Deferred Income Taxes... 661.6 222.8 g -- 884.4
Accrued Reclamation and
Other Environmental
Liabilities............ 416.4 45.0 a -- 461.4
Workers' Compensation
Obligations............ 260.9 (37.0)h -- 223.9
Accrued Postretirement
Benefit Costs.......... 876.2 111.0 h -- 987.2
Obligation to Industry
Fund................... 97.0 (31.0)h -- 66.0
Other Noncurrent
Liabilities............ 209.4 20.0 e -- 221.1
(8.3)h
--------- ------ --------- ---------
Total Liabilities.... $ 4,667.4 $377.4 $ 1,754.7 $ 6,799.5
Total Invested Capital.. 1,687.8 550.5 i (1,758.3)o 480.0
--------- ------ --------- ---------
Total Liabilities and
Invested Capital.... $ 6,355.2 $927.9 $ (3.6) $ 7,279.5
========= ====== ========= =========
</TABLE>
See notes to Unaudited Pro Forma Condensed Combined Balance Sheet.
35
<PAGE>
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
AS OF MARCH 31, 1998
1. Includes the assets and liabilities of Citizens Power, consisting of
$344.2 million worth of capital, $1,525.5 million total assets, $293.9 of non-
recourse indebtedness and $1,353.9 of total liabilities as of March 31, 1998.
2. Reflects the effect of the pro forma purchase accounting adjustments at
March 31, 1998.
(a) To reflect the fair value of the Company's reclamation obligations due
to changes in accounting method.
(b) To reflect the fair value of certain assets totaling $31.7 million
which includes $4.0 million of intangibles.
(c) Reflects the excess purchase price plus net impact of purchase price
accounting adjustments. The preliminary purchase price allocation is
reflected as fair valuing certain assets (land, coal resources and
other investments). The actual allocation of the purchase price may be
different and may impact other asset classifications.
(d) To reflect the issuance of an additional note in connection with the
additional purchase price for the acquisition of Citizens Power.
(e) To reflect the cost associated with the Company's restructuring plan.
(f) To reflect fair value of the 5% Subordinated Note due to the change in
discount rate from 12.8% to 12.0%.
(g) Reflects the deferred tax effects of the pro forma adjustments as
required by SFAS No. 109, "Accounting for Income Taxes."
(h) Reflects adjusting employee-related liabilities to their estimated fair
value based on a discount rate of 7.25%.
(i) Reflects the net effect of pro forma purchase accounting adjustments
(a-h) on invested capital.
3. Reflects the pro forma effect of the Financings as of March 31, 1998.
(j) To reflect the increase in Cash and Equivalents from the Financings.
(k) Reflects the cash distribution to The Energy Group occurring prior the
consummation of the Transactions.
(l) Reflects the debt issuance costs, including the underwriting discounts
related to the Offerings.
(m) Reflects the incurrence of $920.0 million of debt under the Senior
Credit Facilities, $398.8 million of Senior Notes, $498.6 million of
Senior Subordinated Notes and $32.3 million of Peabody Resources Debt
incurred in April 1998.
(n) Reflects the repayment of all debt except for the 5% Subordinated Note,
debt associated with Patriot Coal, the Peabody Resources Debt and the
non-recourse debt associated with Citizens Power.
(o) Reflects the net effect of pro forma debt adjustments (j-n) on invested
capital and the contribution of $480.0 million of equity.
4. Represents the non-recourse indebtedness of Citizens Power.
36
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
YEAR ENDED MARCH 31, 1998
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA
YEAR YEAR
ENDED PURCHASE ENDED
MARCH 31, ACCOUNTING FINANCING MARCH 31,
1998(/1/) ADJUSTMENTS(/2/) ADJUSTMENTS(/2/) 1998(/1/)
---------- ---------------- ---------------- ---------
(IN MILLIONS, EXCEPT RATIOS)
<S> <C> <C> <C> <C>
REVENUES
Sales.......................................... $2,075.1 $ -- $ -- $2,075.1
Other Revenue.................................. 169.3 -- -- 169.3
-------- ------ ------- --------
Total Revenues............................... $2,244.4 $ -- $ -- $2,244.4
OPERATING COSTS AND EXPENSES
Operating Costs and Expenses................... 1,710.8 32.8a -- 1,743.6
Depreciation, Depletion and Amortization....... 202.6 18.7b 221.3
Selling and Administrative Expenses............ 83.6 -- -- 83.6
Net Loss/(Gain) on Property and Equipment
Disposals..................................... (21.8) -- -- (21.8)
-------- ------ ------- --------
OPERATING PROFIT (LOSS).......................... $ 269.2 $(51.5) $ -- $ 217.7
Interest Expense............................... (33.6) -- (8.3)d (207.7)
-- -- (165.8)e --
Interest Income................................ 14.9 -- (12.3)f 2.6
-------- ------ ------- --------
INCOME (LOSS) BEFORE INCOME TAX.................. $ 250.5 $(51.5) $(186.4) $ 12.6
Income Tax Provision (Benefit) ................ 90.2 (6.9)c (48.5)c 34.8
-------- ------ ------- --------
NET INCOME (LOSS)................................ $ 160.3 $(44.6) $(137.9) $ (22.2)
======== ====== ======= ========
Other Data:
EBITDA(/3/).................................... $ 439.0
Depreciation, Depletion and Amortization....... 221.3
Capital Expenditures........................... 166.3
Ratio of Earnings to Fixed Charges(/4/)........ 1.06x
Ratio of Net Debt to EBITDA(/5/)............... 4.67x
Ratio of EBITDA to Cash Interest Expense(/6/).. 2.28x
</TABLE>
See notes to Unaudited Pro Forma Condensed Combined Statement of Operations.
37
<PAGE>
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED MARCH 31, 1998
1. Includes the results of Citizens Power, which had revenues of $26.4
million and EBITDA of $10.8 million for the period May 19, 1997 to March 31,
1998.
2. Reflects the Statement of Operations as if the Transactions had taken
place effective April 1, 1997.
(a) Reflects the impact of adjusting employee-related liabilities to their
estimated fair value at the beginning of plan year based on a discount
rate of 7.25%. The increased cost primarily relates to the elimination
of unrecognized actuarial gains included in the historical combined
financial statements.
(b) Reflects an increase in depreciation depletion, and amortization
expense due to the impact of fair valuing certain assets at purchase
date.
(c) Reflects the tax effects of the pro forma adjustments at a combined
federal and state income tax rate of approximately 25% because the
Company expects to be an alternative minimum tax ("AMT") tax payer for
the forseeable future.
(d) Reflects the additional interest expense resulting from the
capitalization of fees and other deferred financing costs in
conjunction with the Financings totaling $75.0 million, which will be
amortized over approximately nine years.
(e) Reflects the increase in interest expense associated with the Senior
Credit Facilities, the Senior Notes and the Senior Subordinated Notes
and other debt amortization costs related to the Transactions. For
purposes of this calculation, the assumed interest rate is 8.00% for
the Senior Credit Facilities and the yield interest rates of 8.92% for
the Senior Notes and 9.67% for the Senior Subordinated Notes applied to
the discounted value of the respective Notes.
(f) Reflects the decrease in interest income, assuming no excess cash for
investment.
3. EBITDA is defined as income before deducting interest expense, income
taxes, depreciation, depletion and amortization and excludes any non-cash
compensation expense related to management stock transactions. EBITDA has been
reduced by costs associated with reclamation, retiree health care and workers'
compensation. EBITDA is not a substitute for operating income, net income and
cash flow from operating activities as determined in accordance with generally
accepted accounting principles as a measure of profitability or liquidity.
EBITDA is presented as additional information because management believes it
to be a useful indicator of the Company's ability to meet debt service and
capital expenditure requirements and because it is expected that certain debt
covenants of the Company will utilize EBITDA to measure compliance with such
covenants. Because EBITDA is not calculated identically by all companies, the
presentation herein may not be comparable to other similarly titled measures
of other companies.
4. For purposes of this computation, earnings consist of income before
income taxes plus fixed charges. Fixed charges consist of interest on
indebtedness plus the interest component of lease rental expense.
5. For the purpose of this calculation, net debt consists of total debt less
cash and cash equivalents of $98.9 million. Excludes $293.9 million of non-
recourse indebtedness, $10.8 million of EBITDA and $60.4 million of cash of
Citizens Power.
6. For the purpose of this calculation, cash interest expense represents
total interest expense less non-cash interest charges, including amortization
of deferred financing costs and imputed interest from the 5% Subordinated
Note. Excludes $10.8 million of EBITDA for Citizens Power.
38
<PAGE>
SELECTED COMBINED FINANCIAL DATA
The following selected historical combined financial data for the year
ended, and as of, March 31, 1998, for the six months ended, and as of, March
31, 1997 and for the years ended, and as of, September 30, 1996 and 1995 have
been derived from, and should be read in conjunction with, the audited
combined financial statements of the Company included elsewhere in this
Prospectus which have been audited by Ernst & Young LLP, the Company's
independent auditors. The table reflects the fact that effective with The
Energy Group's spin-off from Hanson, the Company switched from a fiscal year
ended September 30 to a fiscal year ended March 31.
The unaudited selected combined financial data for the year ended, and as
of, September 30, 1994 and 1993 and for the twelve months ended, and as of,
March 31, 1997 have been derived from the Company's records. In the opinion of
the Company's management, such unaudited financial statements reflect all
adjustments (consisting of normal recurring adjustments) necessary to present
fairly the financial position and results of operations as of the dates and
periods indicated. The selected financial data should be read in conjunction
with "Management's Discussion and Analysis of Financial Condition and Results
of Operations" and the Combined Financial Statements of the Company and
related notes included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
FISCAL YEAR TWELVE MONTHS SIX MONTHS FISCAL YEARS ENDED
ENDED ENDED ENDED SEPTEMBER 30,
----------- ------------- ---------- ---------------------------------------------------
MARCH 31, MARCH 31, MARCH 31,
1998(/1/) 1997 1997 1996 1995(/2/) 1994(/4/) 1993(/3/)(/4/)
----------- ------------- ---------- -------- --------- --------- --------------
(IN MILLIONS, EXCEPT RATIO)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS DA-
TA:
Tons Sold................ 167.5 167.4 81.4 163.0 151.0 101.6 85.7
Revenues................. $2,244.4 $2,242.3 $1,064.1 $2,193.6 $2,175.8 $1,844.4 $1,580.1
Cost of Goods Sold
(includes depreciation,
depletion and
amortization)........... 1,913.4 1,941.6 924.7 1,891.4 1,861.8 1,631.6 1,482.8
-------- -------- -------- -------- -------- -------- --------
Gross Profit............. $ 331.0 $ 300.7 $ 139.4 $ 302.2 $ 314.0 $ 212.8 $ 97.3
Impairment of Long-Lived
Assets(/5/)............. -- 890.8 -- 890.8 -- -- --
Selling and Administra-
tive Expenses........... 83.6 80.7 41.4 75.7 81.3 73.1 69.0
Net Loss/(Gain) on
Property and Equipment
Disposals............... (21.8) (8.0) (4.1) (13.0) (12.9) (5.9) (6.8)
-------- -------- -------- -------- -------- -------- --------
Operating Profit (Loss).. $ 269.2 $ (662.8) $ 102.1 $ (651.3) $ 245.6 $ 145.6 $ 35.1
======== ======== ======== ======== ======== ======== ========
Net Income (Loss)........ $ 160.3 $ (449.3) $ 58.4 $ (446.3) $ 100.4 $ 79.4 $ (40.7)
======== ======== ======== ======== ======== ======== ========
OTHER FINANCIAL DATA:
EBITDA (/6/)............ $ 471.8 $ 431.6 (/7/) $ 203.8 $ 437.4 (/7/) $ 435.9 $ 315.8 $ 163.3
Depreciation, Depletion
and Amortization....... 202.6 203.6 101.7 197.9 190.3 170.2 128.2
Capital Expenditures
Replacement of Equip-
ment and
Facilities............. $ 90.9 $ 89.1 $ 47.3 $ 88.7 $ 122.9 $ 77.3 $ 63.7
New Mine and Expanded
Capacity............... 75.4 59.4 29.2 63.4 65.1 58.4 96.6
-------- -------- -------- -------- -------- -------- --------
Total Capital Expendi-
tures................. $ 166.3 $ 148.5 $ 76.5 $ 152.1 $ 188.0 $ 135.7 $ 160.3
======== ======== ======== ======== ======== ======== ========
Ratio of Earnings
to Fixed Charges (/8/).. 5.77x -- 3.63x -- 3.63x 2.13x --
<CAPTION>
AS OF AS OF
MARCH 31, MARCH 31, AS OF SEPTEMBER 30,
----------- ------------- ----------------------------------------------
1998(/1/) 1997 1996 1995 1994 1993
----------- ------------- ---------- -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working Capital (defi-
ciency)................ $ 535.9 $ 167.1 $ (129.5) $ (104.3) $ 280.5 $ 99.7
Total Assets............ 6,355.2 5,025.8 4,916.7 5,676.9 5,560.1 5,263.3
Recourse Debt........... 308.4 321.7 456.9 600.8 578.4 550.0
Non-Recourse Debt....... 293.9 -- -- -- -- --
Invested Capital........ 1,687.8 1,676.8 1,383.7 1,651.0 1,656.6 1,376.9
</TABLE>
- -------
(1) Reflects the acquisition of Citizens Power effective May 19, 1997,
including $10.8 million of EBITDA, $294.2 million of working capital,
$1,448.5 million of total assets and $293.9 million of non-recourse
indebtedness of Citizens Power as of March 31, 1998 and for the period May
19, 1997 to March 31, 1998.
(2) Reflects the acquisition of the Caballo and the Rawhide coal mines in the
Powder River Basin effective November 1994.
(3) Reflects the acquisition of the Company's Australian and Lee Ranch
operations effective April 1993 and June 1993, respectively.
(4) The Company experienced a UMWA work stoppage from February 2, 1993 to
December 16, 1993, which negatively impacted the Company's Peabody Coal
Company and Eastern Associated Coal Corp. operations.
(5) Represents a one-time non-cash charge made pursuant to SFAS 121, which had
no effect on the Company's cash flow.
(6) EBITDA is defined as income before deducting interest expense, income
taxes, depreciation, depletion and amortization and excludes any non-cash
compensation expense related to management stock transactions. EBITDA has
been reduced by costs associated with reclamation, retiree health care and
workers' compensation. EBITDA is not a substitute for operating income,
net income and cash flow from operating activities as determined in
accordance with generally accepted accounting principles as a measure of
profitability or liquidity. EBITDA is presented as additional information
because management believes it to be a useful indicator of the Company's
ability to meet debt service and capital expenditure requirements and
because it is expected that certain debt covenants of the Company will
utilize EBITDA to measure compliance with such covenants. Because EBITDA
is not calculated identically by all companies, the presentation herein
may not be comparable to other similarly titled measures of other
companies.
(7) EBITDA for twelve months ended March 31, 1997 and the twelve months ended
September 30, 1996 excluded an $890.8 million charge for Impairment of
Long-Lived Assets. This is a one-time non-cash charge made pursuant to
SFAS 121 which had no effect on the Company's cash flow.
(8) For purposes of this computation, earnings consist of income before income
taxes plus fixed charges. Fixed charges consist of interest expense on all
indebtedness plus the interest component of lease rental expense. Earnings
were insufficient to cover fixed charges by $702.3 million, $702.5 million
and $21.8 million for the twelve months ended March 31, 1997, the fiscal
year ended September 30, 1996 and the fiscal year ended September 30,
1993, respectively, due to the SFAS 121 charges described above.
39
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
"Selected Combined Financial Data" and the audited and unaudited Combined
Financial Statements of the Company and the notes thereto included elsewhere
in this Prospectus. The financial statements contained in this Prospectus are
of the Company's predecessors.
Prior to March 7, 1997, the Company was a wholly-owned indirect subsidiary
of Hanson. During 1996 and 1997, Hanson spun-off its operations into four
separate companies. As part of this tax-free distribution plan, on February
24, 1997 Hanson spun off The Energy Group to hold the energy business of
Hanson. In addition, on March 7, 1997, a subsidiary of Hanson sold the
outstanding common stock of Peabody Holding Company to a subsidiary of The
Energy Group and combined it with other Hanson energy companies, including
Peabody Resources, in The Energy Group.
GENERAL
Peabody is the largest and one of the fastest growing private sector coal
producers in the world. The Company currently owns and operates 24 mines in
the United States and three mines in New South Wales, Australia and also sells
coal produced by third-party contractors from reserves controlled by the
Company. The Company's total U.S. and Australian annual sales have increased
from 93.3 million tons in the year ended September 30, 1990 to 167.5 million
tons in the year ended March 31, 1998 (81.4 million tons in the six months
ended March 31, 1997). Management estimates the Company's U.S. market share
has grown from 9% in the year ended September 30, 1990. For the year ended
March 31, 1998, the Company's estimated U.S. market share was 14.4%.
The Company's U.S. operations are managed through six principal units:
Powder River Coal Company ("Powder River"), Peabody Western, Eastern
Associated, PCC, Lee Ranch Coal Company ("Lee Ranch") and Patriot Coal Company
("Patriot Coal"). In 1997, the Company's 24 U.S. mines sold coal to more than
150 U.S. power plants, including many of the largest U.S. utilities. The
Company's Australian subsidiary, Peabody Resources, is one of Australia's ten
largest coal producers. Peabody Resources manages and owns or holds joint
venture interests in three surface mines in New South Wales, Australia and the
Company believes that it is well positioned to serve the growing market in the
Pacific Rim. A fourth mine, Bengalla, is currently under development and is
scheduled to begin operations in calendar year 1999. For the year ended March
31, 1998, the Company's share of sales from these mines totaled 7.3 million
tons, and its share of the proven and probable reserves associated with these
operations totaled 290 million tons.
As of October 1, 1996, Peabody owned or controlled approximately 9.4 billion
tons of proven and probable coal reserves, an increase from approximately 7.0
billion tons in 1990. The Company has the largest coal reserve base of any
private sector coal producing company in the United States. The Company has a
substantial base of low sulfur coal reserves, which consisted of approximately
4.4 billion tons as of October 1, 1996, and additional low sulfur coal
reserves are available for lease from private parties or federal, state or
tribal governments, especially in the Powder River Basin. A substantial
portion of the remaining high sulfur coal reserves are located near coal-fired
power stations which the Company believes may make them attractive for
development because of lower transportation costs. The Clean Air Act
Amendments limit the ability of some of the Company's customers to burn higher
sulfur coals unless they install scrubbers or purchase emission allowances.
The development of the Company's high sulfur coal reserves is dependent on the
cost of such emission allowances, the cost and availability of low sulfur coal
and whether electric utilities install scrubbers to meet the more stringent
SO/2/ emissions requirements of Phase II of the Clean Air Act Amendment in
2000. Approximately 50% of the Company's current high sulfur coal production
was sold to power plants which have already installed scrubbers.
Approximately 92% of the Company's U.S. coal sales volume for the twelve
months ended March 31, 1998 was sold to domestic electric utilities,
approximately 5% was exported to electric utility and steel making customers
and approximately 3% was sold to U.S. industrial customers. For the year ended
March 31, 1998,
40
<PAGE>
92% of Peabody's sales volume was sold under CSAs and as of March 31, 1998 the
Company had CSAs for approximately 1.0 billion tons of coal. At March 31,
1998, Peabody's CSAs had terms ranging from one to 17 years, with an average
volume-weighted remaining term of 5.7 years. Such contracts are negotiated in
the ordinary course of business. Most of the Company's U.S. coal supply
contracts which have terms greater than one year are subject to periodic price
adjustments or "reopener" provisions under which the contract price is subject
to periodic adjustment by either party to reflect the changes in the market
price of coal. Furthermore, a majority of the Company's coal supply contracts
with terms greater than one year currently have prices which exceed the price
at which such coal could be sold in the spot market. Over the last few years,
several of these contracts have been renegotiated, bringing the contract
prices closer to the then current spot market prices, thus leading to a
reduction in the revenues from such contracts. A similar reduction in contract
prices has also been experienced in relation to the replacement of expiring
contracts.
The Company restructures its CSAs in the normal course of business. In
connection with such restructurings, the Company recognized gains ranging from
$4.4 million in fiscal 1993 to $49.3 million for the fiscal year ended March
31, 1998. There can be no assurance that the Company will be able to realize
such gains in connection with future restructurings of CSAs.
For the fiscal year ended March 31, 1998, approximately 73% of Peabody
Resources' 7.3 million-ton share of coal produced by the Australian mines was
sold under CSAs to the New South Wales power utility, Macquarie Generation.
The remainder was exported to Pacific Rim countries. Coal from the Ravensworth
and Narama mines is sold to Macquarie Generation under contracts which expire
in 2000 and 2012, respectively. The contracts have price adjustment provisions
which are based on the qualities of coal delivered and changes in indices of
mining costs. All of the output from the Warkworth mine is exported;
approximately 75% is sold under contracts, including contracts with the other
joint venture partners in Warkworth, and approximately 25% is sold on the spot
market. Peabody Resources' Australian export contracts normally provide for
annual price renegotiations.
To date, the effect of expiring and repriced contracts has been mitigated by
lower operating costs and expansions and acquisitions that increased sales
volumes. The Company believes that based on RDI's estimates of future coal
prices and the Company's portfolio of CSAs, the adverse impact of expiring and
repriced contracts will be smaller in the next five years than it was in the
past five years. There can be no assurance that any reductions in revenues
resulting therefrom will continue to be mitigated by improvements in
productivity or increased sales volumes or will not be affected by greater
than expected declines in coal prices. The following table indicates the
recent historical trends in spot market pricing by supply region in the United
States for the coal industry.
HISTORICAL STEAM COAL SPOT PRICES
(Nominal Dollars per Ton, Free on Board at Mine)
<TABLE>
<CAPTION>
POUNDS
BTUS SO/2/ PER MILLION ESTIMATED
REGION/BASIN PER POUND BTUS 1995 1996 1997
- -------------------------- --------- ----------------- ------ ------ ---------
<S> <C> <C> <C> <C> <C>
Central Appalachia........ greater than 12,500 less than or equal to 1.2 $25.00 $26.78 $27.16
greater than 12,500 1.21-1.70 24.63 25.04 25.53
greater than 12,500 1.71-2.5 24.27 24.81 25.42
less than 12,500 less than or equal to 1.2 22.06 23.98 24.42
less than 12,500 1.21-1.70 21.17 22.93 23.35
less than 12,500 1.71-2.5 21.13 21.80 22.18
Northeastern Appalachia... greater than 12,750 1.2-2.5 $22.62 $22.70 $23.20
greater than 12,750 greater than 2.5 21.92 21.28 21.46
Illinois Basin............ greater than 11,000 greater than 2.5 $18.62 $18.65 $18.99
less than 11,000 greater than 2.5 17.17 17.15 17.22
Southern Powder River Ba-
sin...................... greater than 8,800 less than or equal to 1.2 $ 4.34 $ 4.00 $ 4.00
less than 8,800 less than or equal to 1.2 3.27 3.14 3.12
Northern Powder River Ba-
sin...................... greater than 8,800 less than or equal to 1.2 $ 6.09 $ 6.25 $ 6.25
Four Corners.............. greater than 9,500 less than or equal to 1.2 $13.79 $13.81 $14.14
</TABLE>
- --------
Source: RDI, Outlook for Coal, Winter 1996 -1997.
41
<PAGE>
ACQUISITION OF CITIZENS POWER
In May 1997, all of the common membership interests in Citizens Power and
its subsidiaries were acquired. Citizens Power markets and trades electric
power, other energy-related commodities and power-related commodity risk
management products. Citizens Power also provides energy contract
restructuring services to the electric power industry. The acquisition of
Citizens Power was accounted for as a purchase and, accordingly, the Company's
combined financial statements include the operating results of Citizens Power
from the closing date forward.
RESULTS OF OPERATIONS
The following table summarizes the results of operations for the fiscal
years ended September 30, 1996 and 1995, the six months ended March 31, 1997
and 1996 and the fiscal year ended March 31, 1998 and the twelve months ended
March 31, 1997.
<TABLE>
<CAPTION>
FISCAL YEARS
UNAUDITED SIX MONTHS ENDED ENDED
TWELVE MONTHS -------------------- SEPTEMBER 30,
FISCAL YEAR ENDED UNAUDITED ------------------
ENDED MARCH MARCH 31, MARCH 31, MARCH 31,
31, 1998 1997 1997 1996 1996 1995
----------- ------------- --------- --------- -------- --------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
Tons Sold............... 167.5 167.4 81.4 77.0 163.0 151.0
Revenues................ $2,244.4 $2,242.3 $1,064.1 $1,069.9 $2,193.6 $2,175.8
Cost of Goods Sold (in-
cludes depreciation,
depletion and amortiza-
tion).................. 1,913.4 1,941.6 924.7 933.1 1,891.4 1,861.8
-------- -------- -------- -------- -------- --------
Gross Profit............ $ 331.0 $ 300.7 $ 139.4 $ 136.8 $ 302.2 $ 314.0
Impairment of Long-Lived
Assets(/1/)............ -- 890.8 -- -- 890.8 --
Selling and Administra-
tive Expenses.......... 83.6 80.7 41.4 39.9 75.7 81.3
Net Loss/(Gain) on Prop-
erty and Equipment
Disposals.............. (21.8) (8.0) (4.1) (9.1) (13.0) (12.9)
-------- -------- -------- -------- -------- --------
Operating Profit
(Loss)................. $ 269.2 $ (662.8) $ 102.1 $ 106.0 $ (651.3) $ 245.6
======== ======== ======== ======== ======== ========
</TABLE>
- --------
(1)Represents a one-time non-cash charge pursuant to SFAS 121 which had no
effect on the Company's cash flow.
Fiscal Year Ended March 31, 1998 Compared with Twelve Months Ended March 31,
1997
For the year ended March 31, 1998, the Company had revenues of $2.2 billion
and operating profit of $269.2 million. The 1998 revenues were $2.1 million
higher and operating profit increased $931.9 million compared to the same
period in the prior year. The lower earnings in 1997 primarily resulted from a
one-time non-cash charge of $890.8 million due to the adoption of the
valuation methodology of SFAS 121, which related to the impairment of certain
inactive and undeveloped coal reserves. Excluding the impact of this charge,
operating income would have been $228.1 million for the twelve months ended
March 31, 1997.
Coal sales of 167.5 million tons for the fiscal year ended March 31, 1998
approximated volume for the year ended March 31, 1997. Low sulfur coal sales
represented 81% of total sales volume for the fiscal year ended March 31, 1998
and sales under CSAs of one year or more represented 92% of sales volume for
the same period. Management estimates the Company had a U.S. market share of
approximately 14.4% during the period. The Company's mines in Australia had
coal sales of 7.3 million tons for both the fiscal year ended March 31, 1998
and the twelve months ended March 31, 1997.
Revenues of $2.2 billion for the fiscal year ended March 31, 1998 increased
$2.1 million compared to the prior year, primarily as a result of
restructuring the Tucson Electric Power contract at the Company's Lee Ranch
operation ($49.3 million additional revenue in that period) partially offset
by lower export pricing and softer markets in Australia and the Power River
Basin. The Company also realized $11.6 million in gains from a CSA
restructuring for the twelve months ended March 31, 1997.
42
<PAGE>
Operating profit of $269.2 million for the fiscal year ended March 31, 1998
was $41.1 million more than the prior year, excluding the $890.8 million SFAS
121 charge. The improved earnings were primarily due to recognizing $49.3
million gain on the Tucson Electric Power contract restructuring combined with
$8.4 million of operating profit contributed by Citizens Power from power
trading and price risk management activities during the period and increased
gains on property sales. Operating difficulties at the Eastern Associated
mines, lower export pricing and lower prices in the Powder River Basin
adversely impacted operating income. The Company's productivity in the United
States remained strong, with an average of almost 92 tons per manshift for the
period, while the Australian operations increased productivity by
approximately 7% over the prior year. This had the effect of increasing gross
profit margins (excluding Citizens Power) to 14.5% of revenues for the fiscal
year ended March 31, 1998 as compared to 13.3% for the prior year. Selling and
administrative expenses were 3.7% of revenues in 1998 compared to 3.6% in the
prior year. The net gain on property and equipment disposals was $15.8 million
favorable to the prior year primarily due to a $14.7 million gain on a sale of
property. The Company's Australian operations contributed $44.8 million of
operating profit for the fiscal year ended March 31, 1998 and $47.4 million in
the prior year.
Effective January 1998, a subsidiary of the Company purchased an additional
10% interest in Black Beauty Coal Company for $37.7 million in cash and as a
result, increased its ownership in the partnership to 43.3%.
Six Months Ended March 31, 1997 Compared with Six Months Ended March 31, 1996
For the six months ended March 31, 1997, the Company had revenues of $1.1
billion and operating profit of $102.1 million. Revenues and operating profit
were slightly lower ($5.8 million and $3.9 million, respectively) compared to
the six months ended March 31, 1996. The impact of the increased sales volume
of 4.4 million tons during the six months ended March 31, 1997 was more than
offset by unfavorable pricing variances and lower gains from surplus property
sales as compared to the prior period.
Coal sales of 81.4 million tons for the six months ended March 31, 1997
increased 6% from 77.0 million tons for the six months ended March 31, 1996.
The higher volume was primarily from the Powder River operations, as volumes
were increased over 10% due to improved customer demand and the installation
of a crusher conveyor system. The Company's mines in Australia had coal sales
of 3.5 million tons for the six months ended March 31, 1997, an increase of
19% from the previous period, resulting from favorable customer demand. Low
sulfur coal sales represented 81% of total sales volume for the six months
ended March 31, 1997 and sales under CSAs represented 89% of total sales
volume in that period.
Revenues of $1.1 billion for the six months ended March 31, 1997 decreased
slightly from the six months ended March 31, 1996. The positive impact of a 6%
growth in sales volume was more than offset by a decline in pricing during the
period. The decline in pricing was primarily at Powder River as expiring and
repriced contracts and a soft spot market reduced the average price per ton.
The Company also realized gains from CSA restructurings were $11.6 million and
$22.0 million for the six month period ended March 31, 1997 and 1996,
respectively.
Operating profit of $102.1 million was $3.9 million lower than for the six
months ended March 31, 1996. The Company's cost reduction measures and
productivity (i.e. tons per manshift) enhancements continued to have a
positive impact on operating profit which was more than offset by a decline in
coal prices and lower gains from surplus property sales. The success of the
cost reduction initiative improved productivity approximately 13%, with the
Company's U.S. operating companies averaging 93 tons per employee per manshift
for the six month period which represented a Company record. The Company's
Australian productivity also showed significant improvement increasing more
than 17% from the equivalent period in the previous year. This had the impact
of improving gross profit margins to 13.1% of revenues for the six months
ended March 31, 1997 as compared to 12.8% of revenues for the six months ended
March 31, 1996. Selling and administrative expenses remained substantially
stable at 3.9% and 3.7% of revenues for 1997 and 1996, respectively. The
Company's Australian operations contributed $22.3 million of operating profit
in the six months ended March 31, 1997, up from $16.1 million for the
comparable period in 1996.
43
<PAGE>
Fiscal Year Ended September 30, 1996 Compared with Fiscal Year Ended
September 30, 1995
For the fiscal year ended September 30, 1996, the Company had revenues of
$2.2 billion and an operating loss of $651.3 million. The 1996 revenues
increased $17.8 million from 1995 levels, while operating profit decreased
$896.9 million from 1995. The lower earnings in 1996 were primarily due to a
one-time, non-cash charge of $890.8 million as a result of adopting the
valuation methodology of SFAS 121, principally related to the impairment of
certain inactive and undeveloped coal reserves, primarily high sulfur coal
reserves affected by the Clear Air Act Amendments. See note 1 to Combined
Financial Statements. Excluding the impact of this charge, operating income
would have been $239.5 million for the fiscal year ended September 30, 1996.
Coal sales of 163.0 million tons in the fiscal year ended September 30, 1996
increased 8% from 151.0 million tons in the fiscal year ended September 30,
1995. The higher volume was primarily attributable to an 18.5% increase in the
Company's Powder River Basin production volume including a full year's
contribution from the Caballo and Rawhide mines acquired in November 1994. The
Company's Australian operations sold 6.7 million tons of coal in the fiscal
year ended September 30, 1996, compared to 7.3 million tons in 1995. The
Company's overall production reflected the impact of its continued investment
aimed at improving productivity, in particular at Powder River. Low sulfur
coal sales represented 82% of total sales volume in the year ended September
30, 1996, up from 80% in 1995. Sales under long-term contracts represented 88%
of sales volume in 1996 and management estimates the Company's market share in
the United States rose from 14% in the fiscal year ended September 30, 1995 to
15% in the fiscal year ended September 30, 1996.
Revenues were $2.2 billion in the fiscal year ended September 30, 1996,
which were $17.8 million higher than revenues for the fiscal year ended
September 30, 1995. The positive impact of higher sales volumes in 1996 was
offset by lower pricing of three high sulfur coal contracts at PCC (estimated
at $25 to $30 million) as price per ton was 10% lower than the prior year.
Revenues were also adversely affected by reduced demand at the Company's
western operations, as customers purchased lower priced hydro-electric
generation that was available due to unusually high rain and snowfall in the
western United States. Stabilizing spot prices in the higher sulfur markets in
the last six months of the year also favorably impacted profits. The Company
also realized gains from CSA restructurings totaling $22.0 million and $23.9
million for the fiscal years ended September 30, 1996 and 1995, respectively.
Excluding the one-time, non-cash charge of $890.8 million arising from the
implementation of SFAS 121, operating income of $239.5 million for the fiscal
year ended September 30, 1996 decreased $6.1 million from $245.6 million for
the fiscal year ended September 30, 1995. The 1996 operating results were
affected by lower customer demand at the Company's western operations, the re-
pricing of certain high sulfur coal contracts (which management estimates
accounted for a decrease in profit of $25 to $30 million) and operational
difficulties at PCC and Eastern Associated during the first nine months of the
year. Offsetting the above impacts was a reduction in costs due to measures
implemented during 1996 as part of continuing efforts to reduce production
costs. These included employee reductions, improvements in working practices
permitted under new union contracts and the effects of investment in more
efficient equipment. The success of the Company's cost reduction initiatives
was evidenced by an improvement in productivity, as tons per manshift improved
17% in absolute terms over 1995 and 3% on a weighted average mine by mine
basis taking into account the shift in sources of production. Operating profit
in 1996 also included the benefit of $23.3 million related to the reversal of
an excess accrual of the Company's liability for the UMWA Combined Fund
established under the Coal Industry Retiree Health Benefit Act of 1992 (the
"Coal Act"). This reversal resulted from the Company's successful appeal of
U.S. government beneficiary assignments and its active participation in the
administrative process with respect to this fund. The effect of these items
was to reduce gross profit margins to 13.8% in 1996 from 14.4% of revenues for
1995. Selling and administrative costs were $5.6 million lower than in 1995 as
the Company continued to streamline and consolidate support functions. As a
percentage of revenues, selling and administrative expenses were 3.7% in 1995
and 3.5% in 1996.
The Company's Australian operating profits of $48.5 million for the fiscal
year ended September 30, 1996 increased from $37.9 million for the fiscal year
ended September 30, 1995. The improved earnings were primarily related to
increased volume of mining services projects during 1996.
44
<PAGE>
INCOME TAXES
Since March 7, 1997, the Company has filed one consolidated U.S. federal
income tax return with its subsidiaries. At March 31, 1998, U.S. federal and
state income taxes were determined on that basis. Prior to March 7, 1997, the
Company consisted of two separate U.S. federal consolidated groups, Peabody
Holding Company and Peabody Investments, Inc., parent of Gold Fields ("Peabody
Investments").
For the fiscal years ended September 30, 1996 and 1995, Peabody Holding
Company and its subsidiaries were included in a consolidated federal income
tax return with other Hanson affiliates. Peabody Holding Company had a tax
sharing arrangement with Hanson whereby federal income taxes were computed as
part of a consolidated group of companies. For purposes of these financial
statements, Peabody Holding Company determined its federal tax provision
(benefit) based on its expected allocated share of the consolidated group tax
position. State taxes were determined on a separate return basis. Under the
tax sharing arrangement, Hanson allocated the consolidated federal income tax
liability to the members of the consolidated group by applying a ratio of each
member's separate taxable income to the sum of the separate taxable incomes of
all members having taxable income for the years. If the consolidated group had
taxable income, a member having a taxable loss did not receive a benefit for
that loss. If the consolidated group had a taxable loss, only members having a
taxable loss received a benefit for that loss.
Peabody Investments was the common parent of a separate consolidated tax
group. The group included its interest in the operations of Hanson Natural
Resources Company ("HNRC"). HNRC was a partnership which historically included
the operations of Lee Ranch, Cavenham Timber and Western Rock Quarries. For
purposes of these statements, Peabody Investments determined its federal and
state tax provision as if Lee Ranch was the only operation included for the
fiscal years ended September 30, 1996 and 1995.
The following summarizes the Company's effective tax rates for the periods
indicated:
<TABLE>
<S> <C>
Fiscal year ended March 31, 1998...................... 36.0%
Six months ended March 31, 1997....................... 32.0%
Fiscal years ended:
September 30, 1996.................................. 36.5%
September 30, 1995.................................. 47.9%
</TABLE>
As indicated in the notes to the Combined Financial Statements, the
effective tax rates are impacted significantly by changes in valuation
allowances, statutory depletion in excess of book depletion and the effect of
tax sharing agreements.
The Company and its U.S. subsidiaries are expected to be AMT taxpayers
prospectively due primarily to the percentage depletion tax deduction. As a
result of its AMT status, the Company and its subsidiaries' expected federal
and state current income tax provision rate is 12%. The expected federal and
state deferred income tax provision rate is 13% for a projected combined
federal and state gross income tax provision rate of 25%.
Pursuant to The Energy Group spin-off from Hanson in February 1997, The
Energy Group entered into Tax Sharing Agreements (each, a "TSA") with both
Hanson and Millennium Chemicals Inc. ("Millennium"), a former Hanson company.
Hanson has agreed to indemnify The Energy Group for all Peabody Investments'
federal and state income tax liabilities arising prior to February 25, 1997,
with the exception of those liabilities arising from the operations of Lee
Ranch subsequent to its acquisition in June 1993.
The Millennium TSA requires Millennium to indemnify The Energy Group and its
subsidiaries for all federal income tax liabilities arising from tax years in
which Peabody Holding Company and its subsidiaries were members of Hanson's
Anglo-American affiliated group (July 3, 1990 through September 30, 1996).
With respect to state income taxes, the Millennium TSA indemnifies The Energy
Group for Arizona income taxes in the years in which Peabody Holding Company
and subsidiaries filed a consolidated return with the Anglo-American group
(fiscal years 1994 to 1996).
45
<PAGE>
Peabody Holding Company and its subsidiaries have AMT credit carryforwards
of approximately $50.6 million (as of the tax year ending June 30, 1997) but
are limited to utilization against regular tax liabilities generated by
Peabody Holding Company and its subsidiaries' members. As a result, the
deferred asset representing the AMT credits is fully offset with a valuation
allowance.
Peabody Holding Company and its subsidiaries currently have regular tax net
operating loss ("NOL") carryforwards of $48.7 million and AMT NOL's of $18.9
million (as of the tax year ending June 30, 1997). All except $4.7 million of
the regular tax NOL and $0.7 million of the AMT NOL are limited to utilization
against income generated by Peabody Holding Company and its subsidiaries.
Deferred tax assets representing the NOLs are fully offset with valuation
allowances.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities for the year ended March 31, 1998
was $181.7 million, a decrease of $141.6 million from net cash provided by
operating activities for the twelve months ended March 31, 1997. This decrease
was primarily due to lower earnings from mining activities and increased
working capital requirements due to Citizens Power. Net cash provided by
operating activities was $62.8 million for the six months ended March 31,
1997. Net cash provided by operating activities was $211.5 million for the
year ended September 30, 1996, compared to $272.5 for the year ended September
30, 1995. The decrease between 1996 and 1995 resulted principally from an
increase in working capital requirements.
Net cash used in investing activities for the year ended March 31, 1998 was
$129.9 million compared to $106.6 million for the year ended March 31, 1997.
This increase was primarily the result of increased capital expenditures of
$27.8 million, a $20.8 million cash payment for the acquisition of Citizens
Power and the $37.7 million cash payment for the additional interest in Black
Beauty Coal Company which was partially offset by $57.5 million in proceeds
from CSA restructurings. Net cash used in investing activities was $56.2
million for the six months ended March 31, 1997. In the year ended September
30, 1996, net cash used in investing activities was $105.6 million, a decrease
of $356.5 million compared to the year ended September 30, 1995. The decrease
between 1996 and 1995 was primarily the result of the acquisition of the
Caballo and Rawhide coal mines in 1995 for $356.2 million. In addition,
approximately $59.6 million in proceeds from contract renegotiations and the
sale of a business unit were received in 1995, which was partially offset by a
cash settlement received totaling $6.1 million for an arbitrated dispute with
a customer for payment of retiree health care and reclamation liabilities
under a CSA in 1994.
The Company made capital expenditures of $166.3 million and $148.5 million
for the years ended March 31, 1998 and 1997, respectively, and $76.5 million
in the six months ended March 31, 1997. Capital expenditures totaled $152.1
million and $188.0 million for the years ended September 30, 1996 and 1995,
respectively. Of the $166.3 million in capital expenditures for the year ended
March 31, 1998, $90.9 million was for replacement capital and $75.4 million
was for expanding capacity and developing mines. The Company expects to make
$208.1 million of capital expenditures in the twelve months ending March 31,
1999, of which $89.5 million will be for replacement of equipment and
facilities and $118.6 million will be for expanding capacity and developing
new mines, primarily the new Bengalla mine in Australia.
Net cash used in financing activities for the year ended March 31, 1998 was
$235.4 million, primarily for dividends and loans to The Energy Group. Net
cash provided by financing activities was $94.2 million for the six months
ended March 31, 1997. Net cash provided by financing activities was $16.0
million for the year ended September 30, 1996, compared with $179.0 million
provided by financing activities for the year ended September 30, 1995,
principally representing the contribution to invested capital by Hanson for
the acquisition of the Caballo and the Rawhide coal mines in 1995.
The Company has five qualified single employer defined benefit pension
plans, which the Pension Benefit Guaranty Corporation ("PBGC") calculated as
being underfunded. As a result, the Company has entered into an agreement with
the PBGC to alleviate the underfunding of Peabody Holdings' pension plans,
pursuant to which the Company has agreed to: (i) accelerate minimum funding
payments that the Company would otherwise
46
<PAGE>
be required to make during 1998, (ii) make certain contributions in excess of
such minimum funding and (iii) provide a letter of credit to support a
fraction of the pension plans' unfunded liabilities.
FINANCING ARRANGEMENTS
Prior to the Acquisition, the Company financed its operations and capital
and other expenditures through a combination of cash generated from
operations, external borrowings, operating leases and loans and invested
capital provided most recently by The Energy Group, and prior to February
1997, from Hanson or its U.S. affiliates. The Company's ability to generate
cash from operations depends upon numerous factors, some of which are outside
the control of the Company, including economic, climatic and geological
conditions and changes in taxation regimes in the United States, Australia and
other countries in which the Company operates.
Historical interest expense, net of interest income, was as follows for the
periods indicated (in millions):
<TABLE>
<S> <C>
Fiscal year ended March 31, 1998................................ $18.7
Six months ended March 31, 1997................................. 16.1
Fiscal years ended: September 30, 1996.......................... 51.2
September 30, 1995........................................ 52.9
</TABLE>
Third-party long-term debt has remained relatively stable throughout the
periods, with the exception of 1997, when Citizens Power, through its
subsidiaries, incurred substantial indebtedness in its operations, primarily
on a non-recourse basis. In 1996 debt owed to Hanson was converted into
equity, resulting in a reduction of interest expense. In addition, the Company
received a cash contribution in 1995 which resulted in substantial cash
balances on which the Company earned income.
As a result of the Acquisition, the Company has substantial indebtedness and
significant debt service obligations. As of March 31, 1998, after giving pro
forma effect to the Transactions, the Company would have had total
indebtedness of approximately $2,098.0 million of which (i) $920.0 million
consists of indebtedness under the Senior Credit Facilities, (ii) $398.8
million consists of the Senior Notes, (iii) $498.6 million consists of the
Senior Subordinated Notes and (iv) $280.6 million consists of existing
indebtedness. The Indentures governing the Senior Notes and Senior
Subordinated Notes permit the Company and its Restricted Subsidiaries to incur
additional indebtedness, including secured indebtedness, subject to certain
limitations. As of March 31, 1998, after giving pro forma effect to the
Transactions, the aggregate of Citizens Power's indebtedness that is non
recourse and Peabody Resources' Australian indebtedness was $370.8 million. In
addition, the Senior Credit Facilities contain additional and more restrictive
covenants and will require the Company to maintain specified financial ratios
and satisfy certain tests relating to its financial condition. See "Risk
Factors" and "Description of Certain Indebtedness." After giving pro forma
effect to the Transactions as of March 31, 1998, the Company's ratio of
earnings to fixed charges would have been 1.06x.
The Company is continually engaged in evaluating potential acquisitions. The
Company expects that funding for future acquisitions may come from a variety
of sources, depending on the size and nature of any such acquisitions.
Potential sources of capital include cash generated from operations,
borrowings under the Revolving Credit Facility, additional equity investments
from Lehman Merchant Banking and other external debt or equity financing.
There can be no assurance that such additional capital sources will be
available to the Company on terms which the Company finds acceptable, or at
all.
In connection with the Acquisition, the Company entered into the Senior
Credit Facilities which include a Revolving Credit Facility, providing for
aggregate borrowings of up to $480.0 million including letters of credit of
$330.0 million. Interest rates on the revolving loans under the Revolving
Credit Facility are based on the Base Rate (as defined in the Senior Credit
Facilities), or LIBOR (as defined in the Senior Credit Facilities) at the
Company's option. The Revolving Credit Facility commitment matures six years
after the consummation of the Financings. The Revolving Credit Facility and
related Term Loan Facility contain certain restrictions and limitations
including but not limited to financial covenants that will require the Company
to maintain and achieve certain levels of financial performance and limit the
payment of cash dividends and similar restricted payments.
47
<PAGE>
The following table sets forth the amortization schedule for the Senior
Credit Facilities:
<TABLE>
<CAPTION>
AMORTIZATION TERM LOAN A TERM LOAN B
------------ ----------- -----------
(IN MILLIONS)
<S> <C> <C>
Year 1 $ 10.0 $ 6.5
Year 2 15.0 6.5
Year 3 20.0 6.5
Year 4 50.0 6.5
Year 5 75.0 6.5
Year 6 100.0 6.5
Year 7 -- 100.0
Year 8 -- 511.0
------ ------
$270.0 $650.0
====== ======
</TABLE>
The Company's ability to pay principal and interest or Liquidated Damages,
if any, on each series of the Notes and to satisfy its other debt service
obligations or to fund planned capital expenditures will depend upon the
future operating performance of its subsidiaries, which will be affected by
prevailing economic conditions in the markets they serve and financial,
business and other factors, certain of which are beyond their control. Based
upon the current level of operations, management believes that cash flow from
operations and available cash, together with available borrowings under the
Revolving Credit Facility, will be adequate to meet the Company's future
liquidity needs for at least the next several years. There can be no assurance
that the Company's business will generate sufficient cash flow from operations
or that future borrowings will be available under the Senior Credit Facilities
in an amount sufficient to enable the Company to service its indebtedness,
including each series of the Notes, or to fund its other liquidity needs. The
Company may need to refinance all or a portion of the principal of each series
of the Notes on or prior to maturity. There can be no assurance that the
Company will be able to effect any such refinancing on commercially reasonable
terms or at all. See "Risk Factors."
CONTINGENCIES--CERTAIN ENVIRONMENTAL MATTERS
The Company's operations are subject to extensive and changing regulations
in the United States and Australia regarding environmental matters. As of
March 31, 1998, the Company had accrued $445.1 million for reclamation and
environmental obligations. The Company's expenditures relating to reclamation
and environmental matters were approximately $39.1 million for the year ended
March 31, 1998, $20.4 million for the six months ended March 31, 1997, and
$70.5 million and $64.4 million for the years ended September 30, 1996 and
1995, respectively.
Gold Fields, its predecessors and its former parent company are or may
become parties to environmental proceedings which have commenced or may
commence in the United States in relation to certain sites previously owned or
operated by those entities or companies associated with them. The Company has
agreed to indemnify Gold Fields' former parent company for any environmental
claims resulting from any activities, operations or conditions that occurred
prior to the sale of Gold Fields to the Company. Gold Fields is currently
involved in environmental investigation or remediation at six sites and is a
defendant in litigation with private parties involving three other sites.
These nine sites were formerly owned or operated by Gold Fields. The EPA has
placed three of these sites on the National Priorities List, promulgated
pursuant to CERCLA, and one of the sites is on a similar state priority list.
There are a number of further sites in the United States which were previously
owned or operated by such companies and which could give rise to environmental
proceedings in which Gold Fields could incur liabilities.
Where such sites were identified, the directors of The Energy Group
commissioned, in connection with the spin-off of The Energy Group, a review of
publicly available information by independent environmental consultants in
order to assess the estimated total amount of the liability per site and the
proportion of those
48
<PAGE>
liabilities which Gold Fields is likely to bear. The available information on
which to base this review was very limited because all of the sites except for
three (on which no remediation is currently taking place) are no longer owned
by Gold Fields.
On the basis of that review, The Energy Group provided for an aggregate of
$73.6 million as of March 31, 1998 for the above environmental liabilities
relating to Gold Fields. Significant uncertainty exists as to whether these
claims will be pursued against Gold Fields in all cases, and if they are
pursued, the amount of the eventual costs and liabilities, which could be
greater or less than this provision. As of March 31, 1998, the provision was
reduced to $68.6 million (which is included in the overall liability of $445.1
million) to reflect expenditures incurred during such period. The Company
believes that the remaining amount of the provision is adequate to cover these
environmental liabilities. See note 18 to the Combined Financial Statements
included herein.
Although waste substances generated by coal mining and processing are
generally not regarded as hazardous substances for the purposes of CERCLA,
some products used by coal companies in operations, such as chemicals, and the
disposal of such products, are governed by the statute. Thus, coal mines
currently or previously owned or operated by the Company, and sites to which
the Company sent waste materials, may be subject to liability under CERCLA and
similar state laws.
While the Company believes that it has identified costs likely to be
incurred for environmental matters and that those costs are not likely to have
a material adverse effect upon the Company's business or financial position,
there can be no assurance that the Company's total costs and liabilities for
environmental matters will not increase in the future. The magnitude of such
additional liabilities and the costs of complying with environmental laws and
containing or remediating contamination cannot be predicted with certainty due
to the lack of specific information available with respect to many sites, the
potential for new or changed laws and regulations and for the development of
new remediation technologies and the uncertainty regarding the timing of work
with respect to particular sites. As a result, there can be no assurance that
material liabilities or costs related to environmental matters will not be
incurred in the future or that the Company's liquidity will not be adversely
impacted by such environmental liabilities or costs.
FOREIGN CURRENCY
The functional currency of the Company's Australian operations is the local
currency except that all export sales, which accounted for 25% of the
Company's Australian sales by volume in 1998, were priced in U.S. dollars.
Assets and liabilities of the Company's Australian operations are generally
translated at current exchange rates and related translation adjustments are
reported as a component of invested capital. Income statement accounts are
translated at the average rates during the period. In recent years, the value
of the Australian Dollar versus the U.S. Dollar has declined as summarized
below:
AUSTRALIAN DOLLAR VS. US DOLLAR
<TABLE>
<CAPTION>
AVERAGE CURRENT
------- -------
<S> <C> <C>
March 1998...................................................... .7188 .6720
March 1997...................................................... .7863 .7838
September 1996.................................................. .7703 .7548
</TABLE>
The impact of the currency translation in combining the results of
operations and financial position of such operations has not been material to
the financial position of the Company.
INFLATION
Inflation in the United States has been relatively low in recent years and
did not have a material impact on the Company's results of operations for the
year ended March 31, 1998, the twelve months ended March 31, 1997, the six
months ended March 31, 1997, or the years ended September 30, 1996 or 1995.
49
<PAGE>
IMPACT OF YEAR 2000 ISSUE
Some of the Company's older computer programs were written using two digits
rather than four to define the applicable year. As a result, those computer
programs have time-sensitive software that recognizes a date using "00" as the
year 1900 rather than the year 2000. This could cause a system failure or
miscalculations resulting in disruptions of operations, including, among other
things, a temporary inability to process transactions, send invoices or engage
in similar normal business activities.
The Company has completed an assessment and will have to modify or replace
portions of its software so that its computer systems will function properly
with respect to dates in the year 2000 and thereafter. The total cost of the
project associated with the Year 2000 Issue is estimated at approximately $6.3
million, which includes $1.4 million for the purchase of new software and
hardware that will be capitalized and $4.9 million that will be expensed as
incurred. To date, the Company has incurred and expensed approximately $0.4
million primarily for assessment of the Year 2000 Issue and the development of
a modification plan.
The project is estimated to be completed no later than June 30, 1999. The
Company believes that with modifications to existing software and conversion
to new software, the Year 2000 Issue will not present significant operational
problems for its computer systems. However, if such modifications and
conversions are not made, or are not completed timely, the Year 2000 Issue
could have a material impact on the operations of the Company.
The costs of the project and the date on which the Company believes it will
complete the appropriate modifications to deal with the Year 2000 Issue are
based on management's best estimates, which were derived utilizing numerous
assumptions of future events. However, there can be no assurance that these
estimates will be achieved.
REORGANIZATION PLANS
The Company has recently announced a new organizational structure for its
U.S. operations. The objective of the new structure is to become a more
innovative, agile organization to reduce costs, and to assure that the
administrative and support function reside at the appropriate levels of the
organization.
Under the new organizational structure, operating units (single mines or
groups of mines) will report to group executives by region, under the
leadership of the President and Chief Operating Officer. Commercial
activities, including sales and marketing, mining, business development, land
and resource management and commercial services will be under the Chief
Commercial Officer. Technical, transactional and administrative support
functions will be consolidated as shared services in St. Louis with some
functions residing in Charleston, West Virginia, and Gillette, Wyoming.
The new structure, which the Company intends to implement by September 30,
1998, is expected to streamline decision making and reporting. It is also
expected to result in a reduction of approximately 100 administrative and
other support positions throughout the Company, in the closing of offices in
Henderson, Kentucky, and Flagstaff, Arizona, and reductions in staffing in the
Charleston and Gillette offices.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, SFAS No. 130, "Reporting Comprehensive Income" was issued
which establishes new rules for the reporting and display of comprehensive
income and its components. The Company intends to adopt this statement for its
1999 fiscal year.q
Also in June 1997, SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information" ("SFAS 131") was issued which establishes
standards for disclosure about operating segments in annual financial
statements and selected information in interim financial reports. It also
establishes standards for related disclosures about products and services,
geographic areas and major customers. This statement supersedes
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SFAS No. 14, "Financial Reporting for Segments of a Business Enterprise." The
new standard becomes effective for the Company's 1999 fiscal year and requires
comparative information from earlier years be restated to conform to
requirements of this standard. The Company is evaluating the requirements of
SFAS 131 and the effects, if any, on the Company's current reporting and
disclosures.
In February 1998, SFAS No. 132, "Employers' Disclosures about Pensions and
Other Postretirement Benefits" was issued which improves and standardizes
disclosures by eliminating certain existing reporting requirements and adding
new disclosures. The statement addresses disclosure issues only and does not
change the measurement of recognition provisions specified in previous
statements. The statement supercedes SFAS No. 87, "Employers' Accounting for
Pensions," SFAS No. 88, "Accounting for Settlements and Curtailments of
Defined Benefit Pension Plans and for Termination Benefits" and SFAS No. 106,
"Employers' Accounting for Postretirement Benefits Other Than Pensions." The
Company intends to adopt this statement for its 1999 fiscal year.
In June 1998, SFAS No. 133, Accounting for Derivative Instruments and
Hedging Activities ("SFAS 133") was issued which establishes accounting and
reporting standards for derivative instruments and for hedging activities.
This Statements amends FASB Statement No. 52, Foreign Currency Translation, to
permit special accounting for a hedge of a foreign currency forecasted
transaction with a derivative. It supersedes FASB Statements No. 80,
Accounting for Future Contracts, No. 105, Disclosure of Information about
Financial Instruments with Off-Balance-Sheet Risk and Financial Instruments
with Concentrations of Credit Risk, and No. 119, Disclosure about Derivative
Financial Instruments and Fair Value of Financial Instruments. It amends FASB
Statement No. 107, Disclosures about Fair Value of Financial Instruments, to
include in Statement 107 the disclosure provisions about concentrations of
credit risk from FASB Statement No. 105. This Statement is effective for all
fiscal quarters of fiscal years beginning after June 15, 1999. The Company is
evaluating the requirements of SFAS 133 and the effect, if any, on the
Company's current reporting and disclosures.
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COAL INDUSTRY OVERVIEW
The information provided in "Coal Industry Overview" regarding future coal
consumption was obtained from the Energy Information Administration ("EIA"),
the independent statistical and analytical agency within the U.S. Department
of Energy, and RDI. The assumptions upon which EIA's forecasts are based
include, among other things, assumptions regarding trends in various economic
sectors (residential, transportation, industrial, etc.), economic growth
rates, technological improvements and demand for other energy sources and are
described more fully in EIA's Annual Energy Outlook 1997. RDI does not set
forth the assumptions upon which their projections are based. Although the
Company believes that these sources are reliable, it can give no assurance
that such projections will prove to have been correct. See "Risk Factors."
INTRODUCTION
Coal is one of the world's major energy sources whose primary role is to
provide fuel for the generation of electricity. According to the EIA, in 1995
26% of the world's primary energy supply came in the form of coal and coal was
responsible for approximately 37% of the world's electricity generation. In
the United States, coal's share of the domestic primary energy supply was 31%
in 1995, while coal's share of U.S. electricity generation has risen
consistently to a record level of 57% in 1997.
The major coal producers in the world are China, the United States, Russia,
Ukraine, India and Australia, although coal is produced in some 60 countries
worldwide. The United States enjoys the world's largest reserve base, with an
estimated 29% of the world's recoverable bituminous and subbituminous coal
reserves, followed by the former Soviet Union, China, India, South Africa and
Australia. An estimated 70% of the world's fossil energy resources are in the
form of coal.
The U.S. coal industry operates under a highly developed regulatory regime
which governs all mining and mine safety activities, including environmental
issues and land reclamation after completion of mining activities. These
include laws requiring that mined lands be restored to a condition equal to or
better than that existing before mining. While inherently dangerous, coal
mining in the United States has become a relatively safe occupation, relying
on sophisticated technology and a skilled work force to become one of the
safest, most productive coal markets in the world. See "Regulatory Matters."
The coal industry has been heavily influenced in recent years by significant
gains in coal mine productivity, changes in air quality laws, growth in
utility coal consumption and industry consolidation. According to the U.S.
Department of Labor, the number of operating mines declined 51% over the last
ten years, while overall coal production increased approximately 20%. During
the same period, average coal mine productivity has nearly doubled due to
changes in work practices, new technologies and an increase in production in
Wyoming's Powder River Basin coal region, where thick, easily accessible coal
seams result in high productivity. The overall productivity gains have
contributed to stability in coal prices in recent years. A major trend in the
industry has been the shift to low sulfur coal production, driven by the Clean
Air Act Amendments, which imposed significant restrictions on SO/2/ emissions
from coal-fired power plants.
COAL CHARACTERISTICS
There are four types of coal: lignite, subbituminous, bituminous and
anthracite. Each has characteristics that make it more or less qualified for
different end uses. In general, coal of all geological composition is
characterized by end use as either "steam coal" or "metallurgical coal,"
sometimes known as "met coal." Steam coal is used by utilities for electricity
generation and by industrial facilities to produce steam, electricity or both.
Metallurgical coal is refined into coking coal, which is used in the
production of steel. Heat value and sulfur content, the most important
variables in the profitable marketing and transportation of coal, determine
the best end use of a particular type of coal.
Heat Value
The heat value of coal is commonly measured in British thermal units. A
British thermal unit ("Btu") is the amount of heat needed to raise one pound
of water one degree Fahrenheit. Coal found in the eastern and midwestern
regions of the United States tends to have a heat content ranging from 10,000
to 13,400 Btus per pound. Most coal found in the western United States ranges
from 8,000 to 10,000 Btus per pound.
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Lignite is a brownish-black coal with a heat content that generally ranges
from 6,500 to 8,300 Btus per pound. Major lignite operations are located in
Texas, North Dakota, Montana and Louisiana. Lignite is used almost exclusively
in power plants located adjacent to or near such mines because any
transportation costs, coupled with mining costs, would render its use
uneconomical. The Company does not have any lignite reserves.
Subbituminous coal is a black coal with a heat content that ranges from
7,800 to 9,500 Btus per pound. Most subbituminous reserves are located in
Montana, Wyoming, Colorado, New Mexico, Washington and Alaska. Subbituminous
coal is used almost exclusively by electric utilities and some industrial
consumers. The Company has extensive subbituminous reserves in the Powder
River Basin of Wyoming.
Bituminous coal is a "soft" black coal with a heat content that ranges from
10,500 to 14,000 Btus per pound. This coal is located primarily in Appalachia,
Arizona, the Midwest, Colorado and Utah, and is the type most commonly used
for electric power generation in the United States. Bituminous coal is used
for utility and industrial steam purposes, and as a feed stock for coke, which
is used in steel production. All of the Company's reserves in Arizona,
Colorado, Illinois, Indiana, Kentucky and West Virginia, as well as its
reserves in New South Wales, Australia, are ranked as bituminous coal.
Anthracite coal is a "hard" coal with a heat content that can be as high as
15,000 Btus per pound. A limited amount of anthracite deposits is located
primarily in the Appalachian region of Pennsylvania, and is used primarily for
industrial and home heating purposes. The Company does not have any anthracite
reserves.
Sulfur Content
Sulfur content can vary from seam to seam and sometimes within each seam.
When coal is burned, it produces SO/2/, the amount of which varies depending
on the chemical composition and the concentration of sulfur in the coal. Low
sulfur coal has a variety of definitions, but it is used in this document to
refer to coal with a sulfur content of 1% or less by weight. Demand for low
sulfur coal has increased, and is expected to continue to increase, as
electric utilities strive to reduce SO/2/ emissions. Phase II requirements are
expected to create additional demand for low sulfur coal. As of October 1,
1996, 47% of Peabody's coal reserves and 81% of its fiscal 1998 coal sales
were low sulfur. U.S. SO/2/ emissions from electric power generation have
decreased 28% from 1980 levels, while U.S. coal consumption has increased 46%.
See "Risk Factors--Risks Relating to the Company--Government Regulation of the
Mining Industry--Impact of Clean Air Act Amendments on Coal Consumption."
Subbituminous coal typically has a lower sulfur content than bituminous
coal, but some bituminous coal in southern West Virginia, eastern Kentucky,
Colorado and Utah, also has low sulfur content.
Higher sulfur coal can be burned in plants equipped with sulfur-reduction
technology, as the scrubbing process reduces SO/2/ emissions by 50% to 90%.
Plants without scrubbers can burn high sulfur coal by purchasing emission
allowances on the open market, which allow the user to emit a ton of SO/2/.
Some older coal-fired plants have been retrofitted with scrubbers. Any new
coal-fired generation built in the United States will likely use clean coal
burning technology.
Other Important Characteristics
Ash. Ash is the inorganic residue remaining after combustion of coal. As
with sulfur content, ash content varies from seam to seam. Ash content is also
an important characteristic of coal because power plants must handle and
dispose of ash following combustion.
Moisture. Moisture content of coal varies by the type of coal, the region
where it is mined and the location of coal within a seam. In general, high
moisture content decreases the heat value and increases the weight of the
coal, thereby making it more expensive to transport.
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Location/Ease of Extraction. It is generally easier to mine a coal seam that
is thick and close to the surface. Typically, coal mining operations will
begin at the part of the coal seam that is easiest and most economical to
mine. In the coal industry, this characteristic is referred to as "low ratio."
As the seam is mined, it becomes more difficult and expensive to mine because
the seam either becomes thinner or protrudes more deeply into the earth,
requiring removal of the material over the seam (the "overburden"). For
example, many seams of coal in the Midwest are 5 to 10 feet thick and hundreds
of feet below the surface. In contrast, seams in the Powder River Basin of
Wyoming may be 80 feet thick and only 50 feet below the surface.
Coking Properties of Metallurgical Coal. When some types of coal are super-
heated in the absence of oxygen, they form a hard, dry, caking form of coal
called coke, which is chiefly used in the steel production process as a fuel
and reducing agent to smelt iron ore in a blast furnace.
COAL COSTS
Cost Comparison of Fuel Types
Coal generated 57% of the electricity in the United States in 1997. Coal
attained this dominant market share because of its relatively low cost and its
availability throughout the United States. On an average, all-in cost per
megawatt-hour ("MWh") basis, coal-fired generation is less expensive than
electricity generated from natural gas or nuclear power. Hydroelectric power
is inexpensive but is limited geographically and there are few suitable sites
for new hydroelectric power dams.
The table below illustrates the relative cost advantage of coal over certain
other power generation sources.
AVERAGE TOTAL GENERATING COSTS(/1/)
<TABLE>
<CAPTION>
1990(/2/) 1997(/3/)
--------- ---------
<S> <C> <C>
Coal........................................................ $20.06 $17.24
Nuclear..................................................... 22.36 18.98
Hydro....................................................... 3.04 5.86
Natural Gas................................................. 28.84 35.12
</TABLE>
- --------
(1) Average annual generating costs per MWh produced for all U.S. power
plants; costs are all-in and include the cost of fuel, depreciation of
plant, and overhead and maintenance.
(2) Source: RDI PowerData, 1996, FERC Form 1 Data.
(3) Source: Monthly operating data from RDI, 1998 from FERC reports.
Cost Structure
Coal Prices
Coal prices vary dramatically and are affected by a number of factors. Two
general characteristics are particularly important; first, coal prices vary
widely depending upon the region in which the coal is produced, and second,
utility purchases of coal, in which both mine-mouth coal prices and
transportation are considered, strongly influence other coal prices. Other
factors that influence coal prices are geological characteristics such as seam
thickness, overburden ratios and depth of underground reserves, transportation
costs, regional coal production capacity relative to demand and coal quality
characteristics such as heat value, ash, moisture and sulfur content. Powder
River Basin coal is relatively inexpensive to mine ($3 to $5 per ton, based on
Company estimates) because the seams are thick and typically close to the
surface. As a result, open-cast mining methods are used. The large capital
costs associated with dragline mining and truck and shovel mining (a dragline
can cost up to $50 million) are amortized over millions of tons of coal
produced. Powder River Basin mines are highly productive and labor is a much
smaller component of the cost structure. Eastern U.S. coal is more expensive
to mine ($15 to $25 per ton, based on Company estimates) than western U.S.
coal because it has a high percentage of underground coal and its surface coal
tends to have thinner coal seams. Additionally, underground mining has higher
labor (including reserves for labor benefits and health care) and capital
costs
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<PAGE>
(including modern mining equipment and construction of extensive ventilation
systems) than those of surface mining.
Industrial coal generally costs more to produce and is shipped in smaller
volumes and therefore is priced $3 to $5 per ton more than steam coal used by
utilities. Metallurgical coal has higher carbon and lower ash content and is
usually priced $4 to $10 per ton higher than steam coal produced in the same
regions. Even higher prices are paid for special coking coal with low
volatility characteristics. The following chart summarizes recent steam coal
prices by supply region. As indicated, in 1997 steam coal prices ranged from
$3 to $27 per ton, depending upon the quality and source region of the coal.
The chart also indicates generally stable prices over the past three years,
after a period in which average coal prices declined by 12% from 1990 to 1995,
in nominal dollars.
HISTORICAL STEAM COAL SPOT PRICES
(Nominal Dollars per Ton, Free on Board at Mine)
<TABLE>
<CAPTION>
BTUS POUNDS SO/2/
PER PER MILLION ESTIMATED
REGION/BASIN POUND BTUS 1995 1996 1997
- ----------------------------- ------- ------------ ------ ------ ---------
<S> <C> <C> <C> <C> <C>
Central Appalachia........... greater than 12,500 less than or equal to 1.2 $25.00 $26.78 $27.16
greater than 12,500 1.21-1.70 24.63 25.04 25.53
greater than 12,500 1.71-2.5 24.27 24.81 25.42
less than 12,500 less than or equal to 1.2 22.06 23.98 24.42
less than 12,500 1.21-1.70 21.17 22.93 23.35
less than 12,500 1.71-2.5 21.13 21.80 22.18
Northeastern Appalachia...... greater than 12,750 1.2-2.5 $22.62 $22.70 $23.20
greater than 12,750 greater than 2.5 21.92 21.28 21.46
Illinois Basin............... greater than 11,000 greater than 2.5 $18.62 $18.65 $18.99
less than 11,000 greater than 2.5 17.17 17.15 17.22
Southern Powder River Basin.. greater than 8,800 less than or equal to 1.2 $ 4.34 $ 4.00 $ 4.00
less than 8,800 less than or equal to 1.2 3.27 3.14 3.12
Northern Powder River Basin.. greater than 8,800 less than or equal to 1.2 $ 6.09 $ 6.25 $ 6.25
Four Corners................. greater than 9,500 less than or equal to 1.2 $13.79 $13.81 $14.14
</TABLE>
- --------
Source:RDI, Outlook for Coal, Winter 1996-1997.
Transportation
Coal for domestic consumption is generally sold at the mine and
transportation costs are normally borne by the purchaser. Export coal is
usually sold at the loading port, and coal producers are responsible for
shipment to the export coal-loading facility and the buyer pays the ocean
freight. Coal for electricity generation is purchased on the basis of its
delivered cost per million Btus. Most utilities arrange long-term shipping
contracts with rail or barge companies to assure stable delivered costs.
Transportation is often a large component of the buyer's cost. Although the
customer pays the freight, transportation cost is still important to coal
mining companies because the customer may choose a supplier largely on the
cost of transportation. According to RDI, in 1995, transportation costs
represented 69%, 28% and 25% of the overall cost of coal produced in the
western United States, eastern United States and mid-western United States,
respectively.
According to the National Mining Association, in 1996, approximately 75% of
all U.S. coal was shipped by rail or barge, making these modes the keys to
domestic coal distribution. Trucks and overland conveyors are
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<PAGE>
used to haul coal over shorter distances, while lake carriers and ocean
colliers move coal to export markets, although some domestic coal is shipped
over the Great Lakes. Railroads move more coal than any other commodity, and
in 1996 coal accounted for 22% of total U.S. rail freight revenue and 44% of
total freight tonnage. Most coal mines are served by a single rail company,
but much of the Powder River Basin is served by two competing rail carriers,
the BNSF (Burlington Northern/Santa Fe) and the Union Pacific. Rail
competition in this major coal producing region is important, since rail costs
constitute up to 75% of the delivered cost of Powder River Basin coal in
remote markets. Rail rates for the Powder River Basin are lower when evaluated
on a ton per mile basis because the relatively flat and straight rail routes
out of the region allow heavily loaded trains to operate with less manpower
and locomotive power than rail routes in other regions.
COAL REGIONS
Coal is mined from coalfields throughout the United States, with the major
production centers located in the Powder River Basin (PRB), Central
Appalachia, Northern Appalachia, the Illinois Basin and in other western
coalfields. The Company operates mines in all of these major coal producing
regions. The map below shows the significant U.S. coal supply regions.
MAP OF U.S. COAL SUPPLY REGIONS
Powder River Basin
The Powder River Basin contains some of the most attractive coal reserves in
the world. The Powder River Basin covers more than 12,000 square miles in
northeastern Wyoming and 7,000 square miles in southeastern Montana.
Demonstrated coal reserves total approximately 165 billion tons. Quality
varies between lignite and subbituminous, with current production of
subbituminous coal averaging 9,100 Btus per pound and 0.5% sulfur in Montana,
to 8,600 Btus per pound and 0.3% sulfur in Wyoming. The mines just north and
south of Gillette, Wyoming, are categorized as southern Powder River Basin
mines. The coal in the southern Powder River Basin is ranked as subbituminous
with an extremely favorable sulfur content.
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Production in the southern Powder River Basin has increased from
approximately 7 million tons in 1970 to 270 million tons in 1997, and now
accounts for 30% of U.S. electric utility coal consumption by volume. The
southern Powder River Basin has grown into the largest coal supply region in
the United States. From 1989 to 1996, the region's compounded annual
production growth rate was 6.2% compared to an overall compounded annual
production growth rate of 1.2% for the total U.S. coal industry. The southern
Powder River Basin markets 98% of its coal to U.S. electric utilities,
principally in the region between the Rocky Mountains and the Appalachian
Mountains. The Company has five active mining operations in the Powder River
Basin: one in Montana and four in northeastern Wyoming.
Central Appalachia
Central Appalachia contains coalfields in eastern Kentucky, southwestern
Virginia and central and southern West Virginia. Production in Central
Appalachia has decreased slightly from approximately 289 million tons in 1990
to 281 million tons in 1996. Production declined in all major sections of
Central Appalachia except for southern West Virginia, which has grown due to
the expansion of more economically attractive surface mines. The region has
experienced significant consolidation in the last several years due to modest
demand growth and strong competition from western coal. Central Appalachian
operations market approximately 58% of their coal to electrical utilities,
principally in the South Atlantic region. Central Appalachia also sells
extensively to the export market and industrial customers. Geologic conditions
in Central Appalachia led to the creation of over 100 significant coal-beds,
60 of which are currently mined. A variety of mining techniques are used as
seams are found on mountaintops and below valley floors. The coal of Central
Appalachia has an average heat content of 12,500 Btus per pound and is
generally low sulfur. The Company operates five underground mines in southern
West Virginia producing low sulfur steam and metallurgical coal.
Northern Appalachia
High and medium sulfur coal is found in the Northern Appalachian coalfields
of western Pennsylvania, southeastern Ohio and northern West Virginia. Coal
demand in the region has increased slightly in recent years and, according to
RDI, is expected to remain stable. Production in the region was approximately
156 million tons in 1997, up from 145 million tons in 1995. Much of the
production in this region is concentrated in a few highly productive longwall
mining operations in southeastern Pennsylvania and northern West Virginia.
Despite its medium sulfur content (1.5% to 2.0% sulfur), coal from the
Pittsburgh seam produced from these mines is considered attractive to utility
coal customers because of its high heat content (approximately 13,000 Btus per
pound). The Company operates one mine in this region.
Illinois Basin
The Illinois Basin is approximately 48,000 square miles in aerial extent
under most of Illinois, western Indiana and western Kentucky. The area has
experienced significant consolidation in the last several years. The Illinois
Basin is a declining production center due to the region's relatively high
sulfur coal and competition from lower sulfur western coal. Production in the
Illinois Basin peaked at 141 million tons in both 1984 and 1990. Since 1990,
production has decreased by 20% due to displacement by lower sulfur, lower
cost coal. In 1996, production stabilized in several of the Illinois Basin's
sub-regions, including Central Illinois, due to stabilizing demand and limited
capacity. Illinois Basin production is marketed primarily to local utility and
industrial customers. The Southwestern Illinois sub-region has an expanded
customer base, including "scrubbed" utilities in Indiana and Florida.
Demonstrated reserves total an estimated 120 billion tons of bituminous coal.
The coal seams dip toward the center of the basin and outcrop along its
border. Approximately 20 coal seams have been identified in the region.
Current production quality ranges from 10,000 to 12,500 Btus per pound and 1%
to 4% sulfur, with production averaging 11,300 Btus per pound and 2.6% sulfur.
The Company has extensive reserves and nine active mining operations (four
surface mines and five underground mines) in the Illinois Basin coal region:
six in western Kentucky, two in Indiana and one in Illinois. In addition, the
Company has a 43.3% interest in Black Beauty, Indiana's largest coal producer.
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Western Bituminous Coal Regions
The western bituminous coal regions include the Hanna Basin in Wyoming, the
Uinta Basin of northwestern Colorado and Utah, the Four Corners Region in New
Mexico and Arizona and the Raton Basin in southern Colorado. These regions
produce high quality, low sulfur steam coal for selected markets in the
region, for export through West Coast ports and for shipments to some
Midwestern power plants for which Powder River Basin's subbituminous coals are
not suitable. Production in these regions has increased from 104 million tons
in 1995 to 108 million tons in 1997. The Company has extensive reserves in
these regions, as well as four operating mines.
Lignite Production Regions
Lignite is mined in North Dakota, Texas and Louisiana. The Company does not
have any lignite reserves.
Australia
The location and quantity of coal reserves in Australia are also well
established, and economical coalfields have been identified in all states in
Australia except Tasmania and the Northern Territory. The majority of
Australia's coal reserves have high heat content, are low sulfur and are
located near ocean ports, making Australia the world's leading coal exporter,
exporting primarily to the Pacific Rim. The majority of Australian coal
production is concentrated in the Bowen Basin in Queensland, in the Hunter
River Valley and Southern coalfields of New South Wales and in Northern
Victoria. The Company operates three mines and is developing a fourth mine in
the Hunter River Valley in New South Wales.
World Coal Production
Global coal production was approximately 5.1 billion tons in 1995, according
to the Organization for Economic Cooperation and Development ("OECD") and the
International Energy Agency ("IEA"). The leading producers (in order of
volume) are China, the United States, the former Soviet Union (primarily
Russia and Ukraine), India and Australia, although coal is produced in many
countries. According to the OECD/IEA, world coal consumption will increase 45%
between 1995 and 2015. Because coal is used primarily as a fuel for the
generation of electricity (coal is currently responsible for 37% of worldwide
electricity generation), the growth in coal demand is being driven by
worldwide electricity demand, which is projected to increase by 54% between
1995 and 2015, according to the OECD/IEA. Much of this growth is projected to
occur in the developing countries of Asia and the Pacific Rim.
COAL MINING TECHNIQUES
Coal mining operations commonly use four distinct techniques to extract coal
from the ground. The most appropriate technique is determined by coal seam
characteristics such as location, logistics and recoverable reserve base.
Drill hole data are used initially to define the size, depth and quality of
the coal reserve area before committing to a specific extraction technique.
All coal mining techniques rely heavily on technology; consequently,
technological improvements have resulted in increased productivity. The four
most common mining techniques are continuous mining, longwall mining, truck
and shovel mining and dragline mining.
Continuous Mining. Continuous mining is an underground mining method in
which main airways and transportation entries are evacuated and remote-
controlled continuous miners extract coal from "rooms," leaving "pillars" to
support the roof. Shuttle cars are used to transport coal from the face to the
conveyor belt for transport to the surface. This method is often used to mine
smaller coal blocks or thin seams and seam recovery is typically approximately
50%. Productivity for continuous mining averages 25 to 50 tons per manshift.
Longwall Mining. Longwall mining is an underground mining method that uses
hydraulic jacks or shields, varying from five feet to 12 feet in height, to
support the roof of the mine while a mobile cutting sheerer advances through
the coal. Chain belts then move the coal to a standard deep mine conveyer
system for delivery to the surface. Continuous mining is used to develop
access to long rectangular panels of coal which are then mined
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<PAGE>
with longwall equipment, allowing controlled subsidence behind the advancing
machinery. Longwall mining is highly productive, but it is effective only for
large blocks of medium to thick coal seams. High capital costs associated with
longwall mining demand a large, contiguous reserve base. Seam recovery using
longwall mining is typically 70% and productivity averages 48 to 80 tons per
manshift.
Truck and Shovel Mining. Truck and shovel mining is an open-cast method
which uses large electric- powered shovels to remove overburden which is used
to backfill pits after the coal is removed. Shovels load coal in haul trucks
for transportation to the preparation plant or rail loadout. Seam recovery
using the truck and shovel method is typically 90%. Productivity depends on
equipment, geological composition and mining ratios and varies between 250 to
400 tons per manshift in the Powder River Basin and 30 to 80 tons per manshift
in eastern U.S. regions.
Dragline Mining. Dragline mining is an open-cast method which uses large
capacity electric-powered draglines to remove overburden to expose the coal
seams. Shovels load coal in haul trucks for transportation to the preparation
plant and then to the rail loadout. Truck capacity can range from 80 to 300
tons per load. Seam recovery using the dragline method is typically 90% or
more and productivity levels are similar to those for truck and shovel mining.
Once the raw coal is mined, it is often crushed, sized and washed in
preparation plants where the product consistency and heat content are
improved. This process involves crushing the coal to the required size,
removing impurities and, where necessary, blending with other coal to match
customer specification. A coal mine's yield is defined as the ratio of clean
output tonnage to raw material tonnage.
TECHNOLOGY
Coal mining technology is continually evolving, improving, among other
things, underground mining systems and larger earth-moving equipment for
surface mines. For example, longwall mining technology has increased the
average recovery of coal from large blocks of underground coal from 50% to
70%. At larger surface mines, haul trucks have capacities of 240 to 320 tons,
which is nearly double the maximum capacity of the largest haul trucks used a
decade ago. This increase in capacity, along with larger shovels and
draglines, has increased overall mine productivity. According to EIA data,
overall coal mine productivity, measured in tons produced per manshift, has
increased 96% from 1985 to 1995.
COAL MARKETS
World Coal Market
Approximately 5.1 billion tons of coal were consumed worldwide in 1995.
According to EIA's International Energy Outlook 1997, demand is expected to
grow at 1.9% per annum through 2015. Coal demand in developing nations is
expected to grow at roughly eight times that in industrialized nations. The
chart below illustrates historical and projected coal demand.
TOTAL WORLD CONSUMPTION, 1995-2015
<TABLE>
<CAPTION>
1995-2015
REGION 1995 2000P 2005P 2010P 2015P CAGR
- --------------------------------------- ----- ----- ----- ----- ----- ---------
(TONS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
Industrialized......................... 2,866 2,971 3,017 3,057 3,096 0.4%
Developing............................. 2,238 2,648 3,118 3,672 4,285 3.3%
----- ----- ----- ----- -----
Total............................ 5,104 5,619 6,135 6,729 7,381 1.9%
===== ===== ===== ===== =====
</TABLE>
- --------
Source:EIA, International Energy Outlook 1997.
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U.S. Market
Approximately 1.1 billion tons of coal were consumed in the United States in
1997 and, according to RDI's Outlook for Coal, Winter 1996-1997, domestic
consumption is expected to grow at 1.8% annually from 1995 through 2015.
Domestic utility demand for coal, currently 87% of domestic consumption, is
projected to increase at an average annual rate of 1.9% from 1995 to 1.2
billion tons in 2015. Coal use at industrial/commercial facilities and at non-
utility generators is projected to grow by 16.1 million tons and 4.9 million
tons, respectively, from 1997 to 2015. Overall, coal use at coke plants and
steel mills is projected to decrease, but steam coal consumption at these
plants is expected to increase by 10.6 million tons as a result of
deregulation in the market for electricity.
HISTORICAL AND PROJECTED U.S. COAL CONSUMPTION, 1995-2015
<TABLE>
<CAPTION>
CAGR
SECTOR 1995 1997P 2000P 2005P 2010P 2015P 1995-2015
- ------------------------ ------- ------- ------- ------- ------- ------- ---------
(TONS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
Utility................. 826.9 890.2 944.8 1,002.1 1,084.5 1,209.7 1.9 %
Industrial.............. 79.5 82.3 81.3 82.4 92.2 98.4 1.1 %
Non-Utility Generators.. 15.9 17.2 21.9 21.9 22.2 22.1 1.7 %
Coke Plants/Steel Mills
Met Quality........... 30.1 27.8 28.4 24.7 18.5 14.7 (3.5)%
Steam Quality......... 5.1 7.0 10.0 12.4 16.9 17.6 6.4 %
------- ------- ------- ------- ------- -------
Total Domestic...... 957.5 1,024.5 1,086.4 1,143.5 1,234.3 1,362.5 1.8 %
Export.................. 89.6 95.9 100.8 105.1 109.6 116.0 1.3 %
------- ------- ------- ------- ------- -------
Total............... 1,047.1 1,120.4 1,187.2 1,248.6 1,343.9 1,478.5 1.7 %
======= ======= ======= ======= ======= =======
</TABLE>
- --------
Source:RDI, Outlook for Coal, Winter 1996-1997.
U.S. Electricity Market
As the table below indicates, coal generated 57% of the electricity in the
United States in 1997.
DOMESTIC ELECTRICITY FUEL SOURCES COMPARISON
<TABLE>
<CAPTION>
1990 1996 1997
----- ----- -----
<S> <C> <C> <C>
Coal....................................................... 55% 56% 57%
Nuclear.................................................... 21 22 20
Hydro...................................................... 10 11 11
Natural Gas................................................ 9 9 9
Other...................................................... 5 2 3
----- ----- -----
Total.................................................. 100% 100% 100%
===== ===== =====
</TABLE>
- --------
Source:EIA Monthly Energy Review, February 1998.
The domestic coal industry's principal end market users are domestic
electric utilities. According to RDI, these utilities are expected to
experience a growing demand for coal as demand for electricity increases.
Coal-fired generation is used in most cases to meet base-load requirements, so
coal use generally grows at the pace of electricity growth. However, in recent
years, coal's share of the generation market has gradually increased due to
its relative low cost. Although it is anticipated that few, if any, new coal-
fired generation plants will be built, coal-fired plants can still take market
share (or at least maintain market share in a growing market) due to the
potential for increased capacity utilization. In aggregate, domestic coal-
fired plants currently run at 65% capacity utilization (optimal sustainable
capacity utilization is 85% for a typical plant, though most can run at higher
rates for short periods). By 2010, coal-fired plants would have to run at
approximately 82% of capacity, assuming all
60
<PAGE>
the same plants were running at today's efficiency levels and that market
share remains constant. Gas-fired electricity generation, which is used for
intermediate and peak-load demand, is anticipated to gain market share at the
expense of nuclear generation, or where peak-load capacity is needed.
Over the past several years, largely as a result of SO/2/ gas emissions
limitations mandated by the Clean Air Act, demand has shifted toward lower
sulfur coal.
Regional Coal Markets
In 1995, Phase I of the Clean Air Act required high sulfur coal plants to
reduce their emissions of SO/2/. As a result of large-scale switching to very
low sulfur Powder River Basin coal, many Phase I-affected plants overcomplied
with the SO/2/ requirements, creating a surplus of emission allowances. This
industry-wide surplus led to the formation of a market for SO/2/ emissions
credits. In 2000, Phase II of the Clean Air Act will tighten restrictions on
sulfur emissions from 2.5 to 1.2 lbs. of SO/2/ per million Btus or lower.
Surplus emission credits from Phase I will allow some generators to delay
retrofitting old plants with expensive scrubbers. Eventually, owners of these
plants will have to retrofit or switch to Phase II compliance coal, most
likely Powder River Basin or other western low sulfur coal, as the following
exhibit indicates.
U.S. COAL DEMAND BY PRODUCTION REGION(/1/)
<TABLE>
<CAPTION>
1996-2015
1996 1997P 2000P 2005P 2010P 2015P CAGR
----- ----- ----- ----- ----- ----- ---------
(TONS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
Northern Appalachia............... 155 156 154 150 156 176 0.7 %
Central/Southern Appalachia....... 310 324 330 341 369 407 1.4 %
Illinois Basin.................... 116 113 102 99 106 116 0.0 %
Southern Powder River Basin....... 253 273 306 329 376 421 2.7 %
Northern Powder River Basin....... 37 43 58 67 69 75 3.8 %
Other Western United States....... 101 108 145 165 184 201 3.7 %
Lignite........................... 90 90 80 84 71 69 (1.4)%
Other............................. 11 8 8 9 9 9 (1.1)%
----- ----- ----- ----- ----- -----
Total....................... 1,073 1,115 1,183 1,244 1,340 1,474 1.7 %
===== ===== ===== ===== ===== =====
</TABLE>
- --------
Source:RDI Outlook for Coal, Winter 1996-1997.
(1) Does not equal consumption due to imports and changes in stockpiles.
According to Standard & Poor's DRI World Energy Service--U.S. Outlook Fall
1997, to date, the majority of the utilities affected by the Clean Air Act
Amendments have chosen to switch to low sulfur coals at the expense of high
sulfur coal due to the high cost of scrubbers and the availability of low
cost, low sulfur coal in the Powder River Basin.
61
<PAGE>
Export Market
The international coal trade outlook for exporters is shown below.
EXPORT MARKET--THE INTERNATIONAL COAL TRADE OUTLOOK FOR EXPORTERS
<TABLE>
<CAPTION>
IMPORTERS
-----------------------------------------------
1995 ACTUAL 2015 PROJECTED
----------------------- -----------------------
EXPORTERS EUROPE ASIA OTHER TOTAL EUROPE ASIA OTHER TOTAL
- -------------------------------- ------ ---- ----- ----- ------ ---- ----- -----
(TONS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Australia....................... 22 120 8 150 18 194 8 220
United States................... 53 18 18 89 72 22 27 121
South Africa.................... 41 21 4 66 36 50 5 91
South America................... 17 0 9 26 55 0 17 72
Canada.......................... 5 27 6 38 8 30 1 39
China........................... 3 24 1 28 0 41 0 41
Other........................... 39 38 11 88 29 57 0 86
---- ---- ---- ---- ---- ---- ---- ----
Total..................... 180 248 57 485 218 394 58 670
==== ==== ==== ==== ==== ==== ==== ====
</TABLE>
- --------
Source:EIA International Energy Outlook, 1997.
As shown in the above table, according to the EIA, the international market
for coal is predicted to expand. The primary beneficiaries from this expansion
will be Australia (which serves the growing Asian markets), and the new, low
sulfur coal producers such as Indonesia, Colombia and Venezuela. The largest
growth in coal use is projected to come from Indonesia, India and China, which
have extensive coal reserves and are currently investing heavily in new
generating plants. The Pacific Rim countries, namely Japan, Taiwan and Korea,
are forecast to have some of the fastest growing import demand for coal
through 2015; consequently, the countries supplying this area will benefit
from this growth. Australia's exports are expected to increase by over 47%
during this period, linked primarily to this demand. The demand for
metallurgical coal in the international export market has historically been
higher than the demand for steam coal. However, metallurgical coal's share of
total world coal export market is projected to fall from its 1995 level of 40%
to 28% by 2015 as the demand for steam coal by electric utilities is projected
to increase more rapidly than the demand for metallurgical coal.
DEREGULATION OF THE ELECTRIC UTILITY INDUSTRY
In October 1992, the National Energy Policy Act was signed in the United
States, giving wholesale suppliers access to the transmission lines of power
generators. In April 1996, the Federal Energy Regulatory Commission ("FERC")
issued orders establishing rules providing for open access to electricity
transmission systems, thereby initiating consumer choice in electricity
purchasing and encouraging competition in the generation of electricity. While
the underlying deregulation process is still proceeding at a federal level,
the detailed implementation and planning has been left to the individual
states.
As the timing of deregulation has been left to the states, the pace of
change differs significantly from state to state. To date, ten states have
enacted programs leading to the full deregulation of the retail electricity
market; 39 other states are considering such programs. Due to the uncertainty
around timing and implementation of deregulation in each state, it is
difficult to predict the impact on the electric utilities.
Full-scale deregulation of the power industry, when implemented, will enable
both industrial and residential customers to shop for the lowest cost supply
of power and the best service available. This fundamental change in the power
industry is expected to compel electric utilities to be more aggressive in
developing and defending market share, to be more focused on their pricing and
cost structures and to be more flexible in reacting to changes in the market.
A possible consequence of the deregulation is anticipated downward pressure
on fuel prices. In addition, there has been a move by the utility companies
towards shorter-term contracts compared to the relatively long-term contracts
of the recent past that locked in volume and pricing terms. However, because
coal-fired generation is competitive with most other forms of generation, a
competitive electricity market may stimulate greater demand for coal to be
burned in plants with currently unused capacity. The Company estimates that as
much as 200 million tons of additional coal could be consumed annually if the
electricity market were rationalized and the most efficient coal-fired power
plants were used to their full capacity.
62
<PAGE>
BUSINESS
OVERVIEW
Peabody is the largest and one of the fastest growing private sector coal
producers in the world. Over the last seven years, management has transformed
the Company from a largely high sulfur, high cost domestic coal producer to a
predominantly low sulfur, low cost international coal company. In fiscal 1998,
the Company sold 167.5 million tons of coal worldwide, which were used to
generate more than 9% of the total electricity produced in the United States.
Based on the most recent data available, the Company's coal satisfied
approximately 2.5% of the world's 1995 electricity demands. Peabody's U.S.
market share was approximately 14.4% in 1997, approximately twice the market
share of its nearest competitor. Peabody has approximately 9.4 billion tons of
proven and probable coal reserves, which is the largest reserve base of any
private sector coal producing company in the United States. In fiscal 1998,
the Company generated pro forma operating revenues of more than $2.2 billion
and pro forma EBITDA of $439.0 million.
The Company currently owns and operates 24 mines in the United States and
three mines in New South Wales, Australia and also sells coal produced by
third-party contractors from reserves controlled by the Company. In addition
to its U.S. and Australian coal businesses, the Company is also one of the
leading marketers of power in the United States through Citizens Power, has a
small gold and copper exploration concession in Chile and has an equity
interest in a southern California landfill project. Peabody also has joint
venture interests in Black Beauty, Indiana's largest coal producer, in
Dominion Terminal Associates, one of the largest U.S. coal export terminals
and in certain other coal transportation facilities.
The Company produces approximately 72% of its coal from the western United
States, compared to approximately 23% from the eastern United States and
approximately 5% from Australia. Peabody's coal production in the western
United States has grown from 37 million tons in 1990 to 114 million tons in
fiscal 1998. The Company's highly productive, primarily non-union western
operations produce low sulfur coal, which is attractive to utilities operating
under restrictions of the Clean Air Act. Peabody's large and diverse customer
base includes more than 150 customers in 17 countries. In 1997, Peabody
supplied 92% of its U.S. production to U.S. electric utilities, 5% to the
export market and 3% to the U.S. industrial sector.
Peabody has a large portfolio of CSAs. In fiscal 1998, 92% of Peabody's
sales volume was sold under CSAs. As of March 31, 1998, the Company had CSAs
for more than 1.0 billion tons of coal with terms ranging from one to 17 years
and with an average volume-weighted remaining term of 5.7 years. As its CSAs
expire, the Company intends to negotiate new contracts in order to maintain
its high percentage of volume sold through CSAs and low percentage of volume
sold in the spot market.
COMPANY HISTORY
Peabody, Daniels and Co. was founded in 1883 by Francis S. Peabody as a
small Chicago retail coal business. Two years later, Daniels sold his interest
and the name changed to Peabody & Co. In 1895, Peabody & Co. entered the
mining business when it opened its first mine located in Illinois. In 1929,
Peabody Coal Company was listed on the Chicago Stock Exchange and later, in
1949, on the New York Stock Exchange. In 1955, Peabody Coal Company, which was
still primarily an underground mine operator, merged with Sinclair Coal
Company of Kansas City, Missouri, a major surface mining company.
By 1968, Peabody Coal Company was operating 37 mines, producing
approximately 54 million tons per annum, and had coal reserves exceeding 5
billion tons. Peabody Coal Company entered the Australian market for the first
time in 1962 through a joint venture agreement with an Australian construction
company and a Japanese trading company.
In 1968, Kennecott Copper Corporation acquired Peabody Coal Company, a move
that the U.S. Federal Trade Commission ruled in violation of the Clayton Anti-
Trust Act. In 1977, after an adverse legal ruling against Kennecott, it sold
Peabody Coal Company for $1.1 billion to Peabody Holding Company, a highly
leveraged
63
<PAGE>
holding company formed by a consortium consisting of Newmont Mining Corp.,
Williams Cos., Bechtel Group Inc., Boeing Corporation, Fluor Corp. and The
Equitable Life Assurance Society.
Peabody Holding Company continued to grow during the 1980s through expansion
and acquisition. In 1983, Peabody Holding Company opened the North Antelope
mine, its first mine in the Powder River Basin and the following year it
acquired the West Virginia coal properties of ARMCO Steel to expand both its
low sulfur operations and its geographical base. In 1987, Peabody Holding
Company purchased Coal Properties Corp. and Eastern Associated, which included
seven operating mines and substantial low sulfur reserves.
In July 1990, Peabody Holding Company was acquired by Hanson and since then
the Company has made ten major acquisitions totaling more than $1.1 billion.
In 1993, Hanson acquired the Lee Ranch mine in New Mexico and the following
year acquired a one third interest in Black Beauty, which was subsequently
increased to a 43.3% interest in February 1998. The Company strengthened its
position in the Powder River Basin in 1994 with the acquisitions of the
Caballo and Rawhide mines from Exxon Coal USA Inc.
In 1993, a major coal operation in Australia, Peabody Resources, was
acquired from Costain Group in anticipation of the growing Pacific Rim market
for coal.
In February 1997, Hanson spun off The Energy Group with its subsidiaries,
Eastern Group and Peabody Holding Company, and became a publicly traded
company in the United Kingdom.
On May 19, 1997, The Energy Group purchased Citizens Power from Lehman
Brothers and certain other parties initiating its entry into the rapidly
growing power marketing industry. Citizens Power obtained the first marketing
license from FERC in 1989. Since that time, it has continued to solidify its
position as an innovator in the U.S. power marketing industry.
The Company was incorporated under the laws of Delaware on February 27,
1998, in anticipation of consummation of the Acquisition. On May 19, 1997, the
Company consummated the Acquisition. See "The Acquisition."
The Company's principal executive office is located at 701 Market Street,
St. Louis, Missouri 63101-1826, telephone: (314) 342-3400.
COMPETITIVE STRENGTHS
The Company believes that it benefits from the following competitive
strengths, which have enabled it to become the largest private sector producer
of coal in the world:
Market Leader. The Company is the largest private sector producer of coal in
the world with a market share of 14.4% in the United States in fiscal 1998 and
a market share of approximately 3.0% worldwide in 1995, according to the
latest available data. In 1997, the Company had a 35% market share in the
Powder River Basin, the largest and fastest growing U.S. coal production
region and the United States' largest known source of low cost, low sulfur
coal. The Company also has the largest reserve base of any U.S. coal producer,
with approximately 9.4 billion tons of proven and probable coal reserves which
based on current rates of production, the Company believes could last for more
than 50 years.
Diversity of Operations and Customers. The Company's mining operations are
broad and diverse and serve a wide range of customers. The Company owns and
operates 24 U.S. mines and sells coal to more than 150 U.S. power plants,
including many of the largest U.S. utilities. The Company also exports coal to
customers in 15 foreign countries. Approximately 72% of the Company's coal
production comes from the western United States, while 10% comes from
Appalachia, 13% from the Illinois Basin and 5% from Australia. Because of the
geographical mix of its reserves, the Company can source coal from several
regions, increasing its ability to meet the various needs of its customers and
reducing customers' transportation costs. Through Citizens Power, the Company
engages in power and energy sales and trading, transaction and asset
restructuring and fuel and power integration.
High Percentage of Low Sulfur Coal. The Clean Air Act Amendments require
electric utilities to reduce SO/2/ and other acidic emissions from coal-fired
power plants in a two-phase process that began in 1995 with
64
<PAGE>
Phase I. Phase II requires further emission reductions by 2000. Utilities may
choose to meet these standards by (i) burning low sulfur coal or other low
sulfur fuels, (ii) installing scrubbers or (iii) purchasing or trading
emission allowances. Power plants that do not use their full allotment of
emission allowances provided under the Clean Air Act Amendments can sell their
extra emission allowances on the open market or use them at their other
facilities to offset emissions from higher sulfur coal. To date, the majority
of affected utilities have chosen to switch to low sulfur coal at the expense
of high sulfur coal due to the high cost of scrubbers and the availability of
low cost, low sulfur coal from the Powder River Basin. According to the
Department of Energy, high sulfur coal production declined 17.6% from 1990 to
1996, while low sulfur coal production increased 18.0% over the same period.
The Company has increased its sales of low sulfur coal from 52.6 million tons
to 135.5 million tons during the same period of time. As of October 1, 1996,
47% of Peabody's proven and probable coal reserves was of low sulfur coal and
81% of its 1998 coal sales was of low sulfur coal. As a result of its
significant presence in the Powder River Basin, which has very low sulfur
coal, Peabody is well positioned to benefit from the impact of the Clean Air
Act Amendments. Over 57% of Peabody's total production and 55% of sales come
from the Powder River Basin, where Peabody has a 35% market share. RDI
estimates that production from coal mines in the Powder River Basin is
expected to grow from 272.7 million tons to 421.3 million tons between 1997
and 2015.
Portfolio of Long-Term Contracts. Peabody has a large portfolio of CSAs. As
of March 31, 1998, the Company had CSAs for more than 1.0 billion tons of
coal, with terms ranging from one to 17 years and with an average volume-
weighted average remaining term of 5.7 years. As a result, its exposure to any
fluctuation in spot market prices is relatively limited. The Company has
historically replaced CSAs as they have expired.
Efficient Operations. Through its production volume, centralized information
technology system, marketing programs and land management functions, the
Company is able to achieve operating and corporate efficiencies. From fiscal
1990 to fiscal 1998, the Company has increased its sales volume from 93.3
million tons to 167.5 million tons (including recent acquisitions) while
simultaneously reducing the number of employees in its coal operations from
10,700 to 7,500. During this period, the Company increased its average
productivity (in terms of coal production per manshift) by 179% in the United
States and, since the acquisition of Peabody Resources in 1993, by 37% in
Australia. According to the U.S. Department of Labor, the Company's four
Powder River Basin mines were the four most productive coal mines in the
United States in 1996 as measured in tons per manshift.
Innovative Research and Development. The Company emphasizes research and
development of new technologies in the coal industry. Since the Company is one
of the largest users of equipment in the industry, manufacturers work with it
to design and to produce equipment that will bring added value to the coal
industry. Some of the Company's recent efforts have led to several
innovations, including state-of-the-art haul trucks, the adaptation of global
positioning satellite technology and nuclear quality analysis equipment. As a
result of these efforts, many of the Company's mines have become among the
most productive in the industry.
Experienced Management. Irl F. Engelhardt, who became Chief Executive
Officer of the Company in 1991, and other members of the senior management
team have a proven record of increasing productivity, making strategic
acquisitions and developing and maintaining strong customer relations. The
management team, whose members have an average of 19 years experience in the
coal industry and 15 years experience with the Company, has transformed the
Company into a predominantly low sulfur, low cost international coal company.
STRATEGY
Anticipating the effect of the Clean Air Act Amendments, the Company
endeavored to become the leading low sulfur coal producer in the United
States. In 1990, low sulfur coal constituted only 56% of the Company's sales
volume; by 1998, it had increased to 81%. In 1990, 77% of the Company's U.S.
coal production came from union mines; by 1998, the percentage had dropped to
35%. The Company has concentrated on controlling costs, and the average cost
per ton declined 25% during the same period, aided by the expansion of its low
cost Powder River Basin operations. The Company also anticipated the growth in
international coal demand, primarily in Asia and the Pacific Rim. This
anticipated growth was the impetus for the acquisition of Peabody
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<PAGE>
Resources in 1993. To capitalize on U.S. electricity deregulation and the
convergence of U.S. energy markets, the Company acquired Citizens Power, a
leading power trading and energy contract restructuring firm in 1997.
As the chart below shows, the Company has demonstrated the ability to
transform itself in response to changing market conditions.
TRANSFORMATION OF PEABODY 1990 TO 1998(/1/)
<TABLE>
<CAPTION>
1990 1998 % CHANGE
----- ----- --------
<S> <C> <C> <C>
Sales Volume (mm tons)............................... 93.3 167.5 80%
U.S. Market Share(/2/)............................... 9.1% 14.4% 58
Low Sulfur Sales Volume (mm tons).................... 52.6 135.5 158
Coal Reserve Base (mm tons).......................... 7,000 9,365(/3/) 34
Low Sulfur Reserves (mm tons)........................ 2,500 4,392(/3/) 76
Productivity tons/manshift (U.S. mines).............. 32.9 91.8 179
Average Cost(/4/)/Ton Sold ($)....................... 19.33 10.21 (47)
Non-Union Production (mm tons)....................... 20.9 98.1 369
</TABLE>
- --------
Source: Peabody.
(1)Fiscal year 1990 and fiscal 1998.
(2)Market share is calculated by dividing Peabody's U.S. sales volume by total
demand for coal in the United States.
(3)As of October 1, 1996.
(4) Operating costs and expenses, excluding Depreciation, Depletion and
Amortization, Selling and Administrative Expenses and Net Loss/(Gain).
In the future, the Company's strategy will concentrate on the following five
principal objectives:
Capitalize on U.S. Electricity Deregulation. Using its extensive customer
base, portfolio of CSAs and its access to the energy trading and contract
restructuring capabilities of Citizens Power, the Company intends to build on
the opportunities presented by electricity deregulation. The Company estimates
that as much as 200 million tons of additional coal could be consumed annually
if the electricity market were rationalized and the most efficient coal-fired
power plants were used to their full capacity. The Company believes that its
ability to furnish low cost fuel and/or low cost electricity from generating
sources with access to low cost fuel will allow it to capitalize on these
opportunities.
Expand Low Sulfur and International Operations. In a deregulated
environment, coal-fired generation will remain a competitive source of power
and the Company intends to continue expanding into growing segments of the
coal market. The Company expects growth to come from expansion of its low
sulfur, low cost coal operations in the Powder River Basin, as well as
expansion of its international operations. The Company believes increased
participation in the rapidly expanding Black Beauty joint venture, and
possible development of new "greenfield" mining operations on low sulfur
reserves in the western United States will provide the opportunity to enhance
the size and profitability of the Company.
Further Reduce Costs. Peabody continues its focus on cost reductions at its
current operations. The Company believes that prudent capital investment in
new production technologies and the adoption of innovative labor-management
practices under the Labor Management Positive Change Program, a program
designed to improve the competitiveness of its unionized mines, will enable it
to continue to increase productivity. Streamlining of the Company's selling
and administrative functions will further reduce expenses, which the Company
believes to be among the lowest among major coal producers on a per ton basis,
as will careful management of the Company's workers' compensation, retiree,
reclamation and health care liability costs and a continued focus on worker
safety.
Leverage Energy Marketing With Citizens Power. The Company will focus on the
strategic integration of its extensive coal customer base with the power
trading and contract restructuring capabilities of Citizens Power. Through
Citizens Power, the Company expects to offer a variety of innovative coal
sales transactions and energy
66
<PAGE>
contract restructuring products to help electric utility customers remain
competitive in a deregulated environment. For example, coal contracts may be
restructured with power off-takes to compensate for lower coal prices, or NUG
contracts may be restructured using low-priced generation from coal tolling
agreements as a replacement. As energy markets converge, the Company is
prepared to offer a variety of energy products to suit these changing market
circumstances.
Pursue Strategic Acquisitions. The Company may pursue strategic acquisitions
and/or joint ventures within the U.S. and Australian coal industries, and as
appropriate opportunities arise, the Company may acquire other strategic
energy assets including electric generating facilities, natural gas and energy
production assets.
COAL RESERVES
The Company had an estimated 9.4 billion tons of proven and probable
reserves as of October 1, 1996, approximately 47% of which was low sulfur
coal. The Company's non-operational reserves are generally held by Peabody
Development which is responsible for acquiring coal assets for future
development and disposing of non-strategic coal interests. Of the Company's
reserves, approximately 48% is owned by the Company and approximately 52% is
leased.
Below is a table summarizing the locations and reserves of the Company's
major operating units.
<TABLE>
<CAPTION>
PROVEN AND PROBABLE
RESERVES AS OF OCTOBER 1, 1996(/1/)
-----------------------------------
(TONS IN MILLIONS)
OWNED LEASED TOTAL
OPERATING COMPANIES LOCATIONS TONS TONS TONS
- ------------------------------------ ----------------------------- ----------- ------------ -----------
<S> <C> <C> <C> <C>
Eastern Associated.................. West Virginia 256 720 976
PCC................................. Illinois Basin 638 240 878
Peabody Western..................... Arizona, Colorado and Montana 2 665 667
Powder River........................ Powder River Basin 90 2,413 2,503
Lee Ranch........................... New Mexico 727 7 734
Peabody Resources................... Australia -- 290 290
Peabody Development................. Throughout United States 2,784 437 3,221
Other............................... Throughout United States 8 88 96
----------- ----------- -----------
Total........................... 4,505 4,860 9,365
=========== =========== ===========
</TABLE>
- --------
(1) Reserves have been adjusted to take account of losses involved in
producing a saleable product.
Reserve estimates are based on geological data assembled and analyzed by the
Company's staff, which includes more than 100 geologists and engineers,
located both at the individual mines and at the Company's headquarters. The
reserve estimates are reviewed periodically to reflect new drilling or other
data received and production of coal from the reserves. Accordingly, reserve
estimates will change from time to time reflecting mining activities, analysis
of new engineering and geological data, changes in reserve holdings,
modification of mining methods and other factors. Reserve information,
including the quantity and quality (where available) of reserves as well as
production rates, surface ownership, lease payments and other information
relating to the Company's coal reserve and land holdings, is maintained
through a computerized land management system developed by the Company.
The Company's reserve base estimates are predicated on information obtained
from its extensive drilling program, which totals nearly 500,000 individual
drill holes. Data from individual drill holes is input into a computerized
drill hole system from which the depth, thickness and, where core drilling is
used, the quality of the coal, are determined. The density of the drill
pattern determines whether the reserves will be calculated as proven or
probable. The drill hole data is then input into the computerized land
management system which overlays the geological data with data on ownership or
control of the mineral and surface interests to determine
67
<PAGE>
the extent of the reserves in a given area. In addition, the Company
periodically engages Boyd, independent mining and geological consultants, to
review the Company's estimates of its coal reserves. The most recent of these
reviews, which was completed October 1, 1996, includes a review of the
procedures used by the Company to prepare its internal reserve estimates,
verifying the accuracy of selected property reserve estimates and retabulating
reserve groups according to standard classifications of reliability.
The private leases normally have terms of between 10 and 20 years, and
usually give the Company the right to renew the lease for a stated period or
to maintain the lease in force until the exhaustion of minable and
merchantable coal contained on the relevant site. These private leases provide
for royalties to be paid to the lessor either as a fixed amount per ton or as
a percentage of the sales price. Many leases also require payment of a lease
bonus or minimum royalty, payable either at the time of execution of the lease
or in periodic installments.
Private leases are invariably maintained by active production. Leases
containing unassigned reserves may expire or such leases may be renewed
periodically. As mines deplete or reserves are assigned, production is often
commenced in a new mine to replace the depleted capacity. With a portfolio of
approximately 9.4 billion tons, the Company believes that it has sufficient
reserves to replace capacity from depleting mines for the foreseeable future
and that its reserve base is one of the Company's strengths. The Company
believes that the current level of production at its major mines is
sustainable.
As of April 1, 1998, the Company held 22 federal coal leases which are
administered by the U.S. Department of the Interior pursuant to the Federal
Coal Leasing Amendments Act of 1976. These leases cover the Company's
principal reserves in Wyoming and other reserves in Montana and Colorado. Each
of these leases continues indefinitely provided that there is diligent
development of the lease and continued operation of the related mine or mines.
The Bureau of Land Management has asserted the right to adjust the terms and
conditions of these leases, including rent and royalties, after the first 20
years of their life and at ten yearly intervals thereafter. Annual rents under
the Company's federal coal leases are now set at $3.08 per acre. Production
royalties on federal leases are set by statute at 12.5% of the gross proceeds
of coal mined and sold for surface mined coal and 8% for underground mined
coal. Similar provisions govern three coal leases with the Navajo and Hopi
Indian tribes. These leases cover coal contained in 65,000 acres of land in
northern Arizona lying within the boundaries of the Navajo National and Hopi
Indian reservations.
Consistent with industry practice, the Company conducts only limited
investigation of title to its coal properties prior to leasing. Title to lands
and reserves of the lessors or grantors and the boundaries of the Company's
leased properties are not completely verified until such time as the Company
prepares to mine such reserves.
MINING OPERATIONS
The following provides a description of the operating characteristics of the
principal mines and reserves of each of the Company's U.S. and Australian
mining units. Production figures are for fiscal 1998.
UNITED STATES
Within the United States, the Company has six principal operating companies:
Powder River, Peabody Western, Eastern Associated, PCC, Lee Ranch and Patriot
Coal.
POWDER RIVER
Powder River owns and manages four low sulfur, non-union surface mines in
Wyoming that produced approximately 91.7 million tons of coal in 1998, or
approximately 35% of total coal production in the southern Powder River Basin,
the largest U.S. coal producing region. As of March 31, 1998, Powder River
employed 1,024 people. According to the U.S. Department of Labor, in 1996
Powder River had the four most productive
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<PAGE>
and efficient mines, as measured in tons per manshift, in the United States:
the North Antelope, Rochelle, Caballo and Rawhide mines. In 1997, Powder River
shipped approximately 57% of the total coal produced by the Company. The
Rochelle, Caballo and North Antelope mines are serviced by the BNSF and Union
Pacific railroads, while the Rawhide mine is serviced by the BNSF. The
Company's significant reserves in the Powder River Basin enable it to increase
and decrease production among Powder River's mines to respond to market
conditions. The Company recently announced that it will reduce production at
the Rawhide mine and shift production under certain CSAs to its other Powder
River Basin mines.
Powder River's coal reserves are classified as surface minable and
subbituminous with seam thicknesses varying from 70 to 105 feet. The sulfur
content of the coal in current production ranges from 0.2% to 0.5% and the
heat value ranges from 8,250 to 8,850 Btus per pound.
The following table provides a summary of the main characteristics of the
principal mines of Powder River:
<TABLE>
<CAPTION>
AVERAGE
TYPE SULFUR SEAM 1998
MINE MINE TYPE OF COAL CONTENT THICKNESS PRODUCTION
- --------------------------------- --------- ------- ------- --------- ----------
(FEET) (TONS IN
MILLIONS)
<S> <C> <C> <C> <C> <C>
POWDER RIVER
North Antelope/Rochelle......... surface steam low 76.0/75.5 60.6
Caballo......................... surface steam low 70.0 20.6
Rawhide......................... surface steam low 105.0 10.5
-------
Total.......................... 91.7
=======
</TABLE>
North Antelope/Rochelle
The North Antelope/Rochelle Business Unit is composed of two mines: the
North Antelope mine and the Rochelle mine which produced approximately 60.6
million tons of coal in 1998.
The North Antelope mine is located 65 miles south of Gillette, Wyoming. In
1996 it was ranked as the most productive mine in the United States and is
currently among the five largest U.S. coal mines. The mine uses a dragline
along with truck and shovel methods to mine coal.
The Rochelle mine is located next to the North Antelope mine and was the
second largest coal mine in the United States in 1996. In 1996, it was ranked
as the second most productive mine in the United States. It uses modern truck
and shovel methods and has two 15,000-ton silos and a 55,000-ton slot storage
facility. The Rochelle mine produces premium quality coal with a sulfur
content averaging 0.22% and a heat value ranging from 8,500 to 8,800 Btus per
pound.
Raw coal is crushed, sized and stored in three 15,000-ton storage silos and
bunkers in preparation for the automatic batch loading system, which can load
coal into 100-ton rail cars in 100 to 115 car unit trains at a rate of 6,000
tons per hour. The business unit has dual railroad tracks, capable of loading
two trains simultaneously and in an efficient manner.
Caballo
The Caballo mine is located 20 miles south of Gillette, Wyoming. In 1998, it
produced approximately 20.6 million tons of coal. Caballo is a truck and
shovel operation with a coal handling system which includes two 12,000-ton
silos and two 11,000-ton silos.
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<PAGE>
Rawhide
The Rawhide mine is located ten miles north of Gillette, Wyoming. In 1998,
it produced approximately 10.5 million tons of low sulfur coal using truck and
shovel mining methods. Rawhide has four 11,000-ton silos and two 12,000-ton
silos.
PEABODY WESTERN
Peabody Western, based in Flagstaff, Arizona, manages two surface mines in
Arizona, one in Colorado and one in Montana, which together ship approximately
17.8 million tons of low sulfur coal annually and employed 1,027 people as of
March 31, 1998. All of Peabody Western's coal is sold to electricity
generating plants.
The following table provides a summary of the main characteristics of the
principal mines of Peabody Western:
<TABLE>
<CAPTION>
AVERAGE
TYPE SULFUR SEAM 1998
MINE MINE TYPE OF COAL CONTENT THICKNESS PRODUCTION
- ------------------------------ --------- ------- -------- --------- ----------
(FEET) (TONS IN
MILLIONS)
<S> <C> <C> <C> <C> <C>
PEABODY WESTERN
Black Mesa................... surface steam low 6.6(/1/) 4.5
Kayenta...................... surface steam low 5.9(/1/) 7.4
Big Sky...................... surface steam low/high 21.4 4.3
Seneca....................... surface steam low 9.9 1.6
-------
Total....................... 17.8
=======
</TABLE>
- --------
(1) Up to six seams mined.
Black Mesa
The Black Mesa mine, located on the Navajo and Hopi Indian reservations in
Arizona, produced approximately 4.5 million tons of steam coal in 1998 using
two draglines. The mine sells its coal under a CSA. Its coal is crushed, mixed
with water and then transported 273 miles through the underground Black Mesa
Pipeline to Southern California Edison's Mohave Generating Station near
Laughlin, Nevada. The mine and the pipeline were designed to deliver coal
exclusively to the power plant, which has no other source of coal.
Kayenta
The Kayenta mine is adjacent to the Black Mesa mine. Approximately 7.4
million tons of steam coal were produced in 1998 using three draglines in
three mining areas. It sells all of its coal under a CSA. The coal is crushed,
then carried 17 miles by conveyor belt to storage silos where it is loaded on
to a private rail link and transported 83 miles to the Navajo Generating
Station, operated by The Salt River Project near Page, Arizona. The mine and
the railroad were designed to deliver coal exclusively to the power plant,
which has no other source of coal.
Big Sky
The Big Sky mine is located in the northern end of the Powder River Basin
near Colstrip, Montana. The mine produces 4.3 million tons of steam coal
annually with one dragline. The coal is shipped by rail to several major
electric utility customers in the upper midwestern United States.
Seneca
The Seneca mine near Hayden, Colorado ships about 1.6 million tons of low
sulfur steam coal annually and operates two draglines in two mining areas. The
Seneca mine's coal is hauled by truck to a nearby generating station where it
is sold under a CSA.
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<PAGE>
EASTERN ASSOCIATED
Eastern Associated, based in Charleston, West Virginia, owns or manages four
business units consisting of six mines and related facilities in West Virginia
and employed 1,618 people as of March 31, 1998. Eastern Associated also
controls two mining sites at which coal is produced by contractors and
processed at the Company's facilities. These operations produced approximately
16.2 million tons of metallurgical and steam coal in 1998 which was sold to
customers in the United States and abroad.
Approximately 40% of Eastern Associated's coal is exported to customers in
Canada and 12 other countries worldwide. The remainder is sold to customers in
the United States. Approximately 55% of Eastern Associated's production is
sold to domestic electric utilities under CSAs.
The following table provides a summary of the main characteristics of the
principal mines of Eastern Associated:
<TABLE>
<CAPTION>
AVERAGE
TYPE SULFUR SEAM 1998
MINE MINE TYPE OF COAL CONTENT THICKNESS PRODUCTION
- ----------------------------- ----------- --------- ------- --------- ----------
(FEET) (TONS IN
MILLIONS)
<S> <C> <C> <C> <C> <C>
EASTERN ASSOCIATED
Big Mountain
Robin Hood underground steam low 4.8/5.6 1.8
.......................
Federal No. 2............... underground steam high 6.8 4.4
Pond Fork Business Unit..... underground steam/met low 5.2 2.5
Contract Mines.............. underground met low 2.5/5.6 5.8
Wells Business Unit(/1/).... underground steam/met low 5.2 1.7
-----
Total...................... 16.2
=====
</TABLE>
- --------
(1) The Wells Business Unit consists of the Lightfoot No. 1 and No. 2 mines.
Big Mountain/Robin Hood
The Big Mountain/Robin Hood Business Unit is based near Prenter, West
Virginia. Big Mountain No. 16 mine uses continuous miners, which produced 1.3
million tons of steam coal in 1998. Robin Hood No. 9 mine uses continuous
miners which produced 500,000 tons of steam and metallurgical coal in 1998.
Federal No. 2
The Federal No. 2 mine, near Fairview, West Virginia, produced 4.4 million
tons of steam coal in 1998 using longwall mining. Coal produced from the
Federal No. 2 mine has a sulfur content only slightly above that of low sulfur
coal and, as a result, is more marketable than most high sulfur coal.
Pond Fork Business Unit and Contract Mines
The Pond Fork Business Unit consists of the Harris No. 1 mine and the
Rocklick preparation plant. The Harris No. 1 mine, near Bald Knob, West
Virginia, produced approximately 2.5 million tons of low sulfur steam coal in
1998. This business unit uses a longwall and two continuous miner sections.
The Harris preparation plant has the capability to load coal on two competing
rail systems thereby enabling it to minimize transportation costs. The
Rocklick preparation plants process coal produced from Eastern Associated
reserves by contract mining companies. This preparation plant, located in West
Virginia, along with the Kopperston preparation plant which closed in June
1998, processed approximately 5.8 million tons of steam and metallurgical coal
in 1998.
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<PAGE>
Wells
The Wells Business Unit in Boone County, West Virginia, produced 1.7 million
tons of metallurgical and steam coal during 1998. The business unit consists
of the Lightfoot No. 1 and No. 2 mines and the Wells preparation plant. The
Lightfoot No. 1 mine, near Wharton, West Virginia, produced approximately
700,000 tons of steam and metallurgical coal in 1998 with two continuous miner
sections. The Lightfoot No. 2 mine, also near Wharton, operates two continuous
miner sections and produced 1.0 million tons of steam and metallurgical coal
during the same year.
PEABODY COAL COMPANY ("PCC")
PCC, based in Charleston, West Virginia, operates six mines in the
midwestern United States which collectively produced 19.4 million tons of coal
in 1998. PCC's four underground and two surface mines, along with five
preparation plants and three barge loading facilities, are located in
Kentucky, Illinois and Indiana and employed 1,893 people as of March 31, 1998.
More than 90% of PCC's coal is shipped to 12 electric utilities in seven
states, principally in the Midwest. Most of this coal is sold under CSAs of
five or more years in length. Eight percent of sales are to U.S. industrial
customers who use the coal to produce their own electricity and steam power.
About 49% of PCC's coal is transported to customers by river barge, 49% by
rail and most of the balance is carried on overland conveyor belts to nearby
power plants.
The following table provides a summary of the main characteristics of the
principal mines of PCC:
<TABLE>
<CAPTION>
AVERAGE
TYPE SULFUR SEAM 1998
MINE MINE TYPE OF COAL CONTENT THICKNESS PRODUCTION
- ------------------------------ ----------- ------- ------- --------- ----------
(FEET) (TONS IN
MILLIONS)
<S> <C> <C> <C> <C> <C>
PCC
Camp No. 1 and No. 11........ underground steam high 5.1/4.9 6.5
Hawthorn..................... surface steam high 3.0 3.3
Marissa...................... underground steam high 6.5 4.0
Midwest Business Unit
(Ken(/1/) and Martwick)..... underground steam high 4.5/4.8 1.6
Lynnville 9.0 4.0
Squaw Creek(/1/) surface steam high 6.0
.........................
-----
Total....................... 19.4
=====
</TABLE>
- --------
(1) The Ken and Squaw Creek mines were depleted in 1997.
Camp
The Camp Business Unit, near Morganfield, Kentucky, produced 6.5 million
tons of coal in 1998. The Camp No. 1 mine has five continuous miner sections
using both continuous haulage systems and shuttle car haulage. The Camp No. 11
mine uses PCC's one longwall mining machine and three continuous miners for
development.
Hawthorn
The Hawthorn mine near Carlisle, Indiana, produced 3.3 million tons of steam
coal in 1998 using three draglines.
Marissa
The Marissa Business Unit, located near Marissa, Illinois, produced 4.0
million tons of coal. It consists of the Marissa underground mine, the
Randolph Preparation Plant and associated transportation facilities. The
Marissa mine uses six continuous miners.
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<PAGE>
Midwest
The Midwest Business Unit near Graham, Kentucky, produced 1.6 million tons
of coal in 1998. The business unit consists of the Ken surface mine, which
closed in 1997, the Martwick underground mine and the Gibraltar Preparation
Plant and Dock. The business unit is also responsible for reclaiming PCC's
closed or suspended mining operations throughout the midwest.
Lynnville/Squaw Creek
The Lynnville/Squaw Creek Business Unit, near Lynnville, Indiana, produced
approximately 4.0 million tons of coal in 1998. The Squaw Creek mine, which
produced approximately 1.4 million tons of coal, closed in 1997 due to
depletion of its reserves. The Lynnville mine uses two draglines and an
electric shovel and produced 3.0 million tons of coal in 1998.
LEE RANCH
The Lee Ranch mine located near Grants, New Mexico, produced 4.7 million
tons of low sulfur coal in 1998 and employed 252 people as of March 31, 1998.
Lee Ranch shipped its coal to two customers in Arizona and New Mexico under
CSAs. It is a surface mine and uses truck and shovel mining.
PATRIOT COAL
Patriot Coal operates one surface mine and one underground mine in Henderson
County, Kentucky and one surface mine in Ohio County, Kentucky. Patriot Coal
produced approximately 1.7 million tons of coal in 1998. The underground mine
has two continuous miner sections and the surface mines use truck and shovel
equipment. The business unit also has a preparation plant and dock. There were
151 persons employed at the three mines and related facilities as of March 31,
1998.
AUSTRALIA
PEABODY RESOURCES
Peabody Resources, headquartered in Sydney, New South Wales, manages and
operates the Ravensworth, Narama and Warkworth mines in the Hunter River
Valley, New South Wales which together shipped 10.8 million tons of low sulfur
coal in 1998. Peabody Resources' share of this production is more than 7.3
million tons, of which 73% is sold domestically under CSAs and 25% is exported
to Pacific Rim countries, principally under CSAs. Peabody Resources owns 100%
of Ravensworth, 50% of Narama and 43.75% of Warkworth. Peabody Resources
employed 1,013 people as of March 31, 1998.
Peabody Resources manages and holds a 35% interest in Bengalla, a joint
venture which is developing a new surface mine in the upper Hunter River
Valley. Peabody Resources also operates a Mining Services Division, based in
Brisbane, Queensland, which provides specialist tunneling and underground
contract mining services to the mining and civil engineering industries.
The following table provides a summary of the main characteristics of
Peabody Resources' mines:
<TABLE>
<CAPTION>
COMPANY
SHARE OF
TYPE SULFUR AVERAGE SEAM 1998 EQUITY
MINE MINE TYPE OF COAL CONTENT THICKNESS(/1/) PRODUCTION INTEREST
- ------------------------ --------- --------- ------- -------------- ---------- --------
(FEET) (TONS IN
MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
PEABODY RESOURCES
Ravensworth............ surface steam low 5.5 4.4 100.00%
Narama................. surface steam low 4.8 1.1 50.00%
Warkworth.............. surface steam/met low 8.0 1.8 43.75%
Bengalla(/2/).......... surface -- low -- -- 35.00%
-----
Total................. 7.3
=====
</TABLE>
- --------
(1) Includes multiple seams.
(2) Under development. It is scheduled to begin production in 1999.
73
<PAGE>
Ravensworth/Narama
The Ravensworth mine, 12 miles northwest of Singleton, New South Wales, is
managed by Peabody Resources under a CSA which expires in 2001 and requires
the Company to produce about 4.5 million tons per year from coal reserves
owned by Macquarie Generation, one of New South Wales' state electric
utilities. The eight coal seams at the Ravensworth mine range from one to 26
feet thick. The overburden is pre-stripped using trucks and power shovels,
followed by draglines to uncover the lower two seams. The coal is trucked from
the pit to a crushing plant and then shipped raw by overland conveyor belt to
Macquarie Generation's nearby Bayswater and Liddell power stations.
The Narama mine opened in January 1993 and is operated as an extension of
the adjacent Ravensworth facility using similar mining techniques in the same
coal seams. The Narama joint venture, of which Peabody Resources owns 50%,
holds a 20-year contract running to the year 2012 to supply about 2.3 million
tons annually to Macquarie Generation.
Warkworth
The Warkworth mine, seven miles southwest of Singleton, New South Wales,
produced approximately 4.1 million tons of steam and metallurgical coals in
1998 (the Company's portion of which is approximately 1.8 million tons),
primarily for export. Peabody Resources manages and owns 43.75% of the
Warkworth Associates Joint Venture which owns the mine.
Coal at the Warkworth mine is produced from three pits using truck and
shovel pre-stripping and dragline stripping techniques to uncover four to six
seams. This diverse range of products is processed at Warkworth's preparation
plant and blended to customer specifications before being carried by overland
conveyor to the Mount Thorley rail loop and then by rail to the port of
Newcastle. Warkworth owns 13.9% of the Mount Thorley facility and 4.2% of a
coal loading terminal at the port.
Bengalla
Peabody Resources also manages and holds a 35% interest in the Bengalla
joint venture which has been awarded mineral rights and a permit to develop a
new surface mine near Muswellbrook, New South Wales, in the upper Hunter River
Valley. The Company expects the new mine to produce up to six million tons of
steam coal per year for export beginning in 1999. The joint venture partners
include Taiwanese and Korean electric utilities and Japanese and Korean
trading companies.
PEABODY DEVELOPMENT COMPANY
As of October 1, 1996, Peabody Development owned or controlled approximately
3.2 billion tons of the Company's unassigned proven and probable reserves and
managed over 100,000 acres of land. Peabody Development also operates a
computerized land management system which maintains a record of the Company's
U.S. coal reserves and coal-related land holdings, and is responsible for the
disposal of surplus lands and non-strategic reserves.
OTHER
Peabody holds a 43.3% interest in Black Beauty, which is Indiana's largest
coal producer and which operates ten mines in Indiana and two mines in
southern Illinois. Black Beauty is a non-union (except for one of the Illinois
operations), relatively low cost producer of high and low sulfur coal which is
attractive to midwestern utilities, particularly in Indiana. The other
participants are Pittsburg and Midway Coal Mining Co., with a 33.3% interest,
and Black Beauty Resources, Inc., with a 23.3% interest. Black Beauty operates
13 mines which shipped 12.6 million tons of coal in 1997.
Dominion Terminal Associates is one of the largest U.S. coal export
facilities with throughput capacity of approximately 24.0 million tons
annually. Dominion Terminal Associates, located in Newport News, Virginia, is
30% owned by the Company. The other participants are Arch Coal, Inc., with a
17.5% interest, The Pittston
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<PAGE>
Company, with a 32.5% interest and Westmoreland Coal Company, with a 20%
interest. In addition, the Company owns a 28% interest in LRCS Limited
Partnership, which owns a rail spur to the Lee Ranch mine.
LONG-TERM COAL CONTRACTS
United States
Peabody has a large portfolio of CSAs. For the year ended March 31, 1998,
92% of Peabody's sales volume was sold under CSAs. As of March 31, 1998, the
Company had CSAs for more than 1.0 billion tons of coal with terms ranging
from one to 17 years and with an average volume-weighted remaining term of 5.7
years. Typically, customers enter into CSAs to secure reliable sources of coal
at predictable prices, while the Company seeks stable sources of revenue to
support the investments required to open, expand, maintain or improve
productivity at mines needed to supply such contracts. Such contracts are
negotiated in the ordinary course of business. See "--Legal Proceedings."
Contract Terms
The terms of CSAs result from bidding and extensive negotiations with
customers. Consequently, the terms of such contracts typically vary
significantly in many respects, including price adjustment features, price
reopener terms, coal quality requirements, quantity parameters, flexibility
and adjustment mechanics, permitted sources of supply, treatment of
environmental constraints, options to extend and force majeure, termination
and assignment provisions.
Price reopeners are present in most of the recently negotiated contracts
over three years in duration and usually occur midway through a contract or
every two to three years, depending upon the length of the contract. Reopeners
allow the contract price to be renegotiated in order to be in line with the
market price prevailing at the time. In some circumstances, the utilities have
an option to terminate the contract if prices have increased by over 10% from
the price at the commencement of the contract or if the parties do not agree
on a new price. The Company attempts to have similar termination rights if the
price falls by 10% or if the parties do not agree on a new price.
Base prices are set at the start of a contract and are then adjusted at
intervals for changes due to inflation and, in many cases, changes in costs
such as taxes, reclamation fees, black lung charges and royalties. The
inflation adjustments are measured by public indices, the most common of which
is the implicit price deflator for the gross domestic product as published by
the U.S. Department of Commerce. The base price is then adjusted to a
negotiated market price when there is a price reopener.
Quality and volumes for the coal are stipulated in CSAs, although buyers
normally have the option to vary volume by up to 10% if necessary. Variations
to the quality and volumes of coal may lead to adjustments in the contract
price. CSAs typically stipulate procedures for quality control, sampling and
weighing. Most CSAs contain provisions requiring the Company to deliver coal
within certain ranges for specific coal characteristics such as Btus, sulfur,
ash, grindability and ash fusion temperature. Failure to meet these
specifications could result in economic penalties or termination of the
contracts.
Contract provisions in some cases set out how coal volumes will be made up
in the event of a force majeure, including such events as strikes, adverse
mining conditions or serious transportation problems. More recent contracts
stipulate that this tonnage can be made up by mutual agreement or at the
discretion of the buyer. Buyers often insert similar clauses covering changes
in environmental laws. The Company has negotiated the right to supply coal
that complies with any new environmental requirements rather than allowing the
contract to terminate if the customer claims that the coal type supplied
previously may no longer be used. CSAs typically contain termination clauses
if either party fails to comply with the terms and conditions of the contract.
In certain contracts, the Company has a right of substitution, allowing it
to provide coal from different mines as long as it is of a certain specified
quality and will be sold at the same delivered cost.
The terms set out above are common to most contracts. There are certain
contracting terms that differ between a standard "eastern U.S." contract and a
standard "western U.S." contract. One difference relates to
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<PAGE>
the sampling locations: in the eastern U.S. region, approximately 50% of
customers require that the coal is sampled and weighed at the destination
whereas in the western United States all samples are still taken at source.
Also, historically, the duration of contracts has been shorter in eastern U.S.
regions; they are now more of a similar length, although a larger percentage
of eastern U.S. coal is purchased on the spot market compared to western U.S.
coal. Traditionally, the eastern U.S. market is a short-term market as there
are a larger number of smaller mining operations in the eastern U.S. coal
market and customers can therefore negotiate new contracts more frequently in
order to obtain a better price. This has also led to a larger number of spot
market transactions in eastern U.S. regions. Western U.S. contracts normally
stipulate that certain production taxes and coal royalties are reimbursed in
full by the buyer rather than being a pricing component within the contract.
These items are a significant portion of the western U.S. coal price while
they are a less material portion of the eastern U.S. coal price.
Historically, CSAs were priced above the spot prices for coal. However, in
the past several years the price of coal has been very competitive, with new
contracts being priced at or near existing spot rates.
The length of sales contracts has decreased significantly over the last two
decades as competition in the coal industry has increased and, more recently,
as the electricity generators have prepared themselves for the Clean Air Act
Amendments and the impending deregulation of their industry. The Company
believes that the average length of CSAs was 20 years in the 1970s and 10
years in the 1980s but it fell to one to two years in the early 1990s.
However, in the last three years, there has been a return to longer term
contracts of five to ten years in length, but customers have insisted on price
reopeners every two or three years, which provide them with the security of
having coal under contract and knowing that the price will not significantly
exceed market.
The Company's portfolio of utility coal sales is more heavily weighted
towards contract sales, while the coal industry generally has a greater
reliance on spot sales. These CSAs tend to limit the Company's exposure to any
fluctuation in spot market prices and the uncertainty of marketing its
production capacity. The premiums that the Company gains on these contracts
allow it to price incrementally on other deals with additional sales being
made on the spot market at the market price prevailing at the time of the
sale, helping the Company increase its market share.
Contract Expirations
Peabody's CSAs have an average volume-weighted remaining term of 5.7 years.
As the Company's CSAs expire, the Company intends to negotiate new contracts
in order to maintain its high percentage of volume sold through CSAs and low
percentage of volume sold into the spot market. When a coal company's
contracts expire, that company is exposed to the risk of having to sell coal
into the spot market, which may be subject to lower and more volatile prices.
The total sales commitments corresponding to the contracts set out above are
approximately 1.0 billion tons of coal, assuming all the contracts run through
to their expiration date. Powder River contracts comprise approximately 53% of
this total commitment. This tonnage commitment may vary depending on future
performance, buyer contractual elections and other contractual provisions.
The Company's profits could decline as its major contracts are repriced from
the existing prices to the estimated future spot rates at the contract
reopener or expiration dates. The Company has assumed that the volume of coal
sales will remain unchanged and new sales outlets will be found as current
contracts expire. The challenge for the Company is to negotiate prices at
above-spot rates to lessen the potential loss of profits.
Australia
In fiscal 1998, approximately 73% of Peabody Resources' 7.3 million-ton
share of coal produced by the Australian mines was sold under CSAs to the New
South Wales power utility, Macquarie Generation. The remainder was exported to
Pacific Rim countries. Coal from the Ravensworth and the Narama mines is sold
to Macquarie Generation under contracts which expire in 2000 and 2012,
respectively. The contracts have price
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<PAGE>
adjustment provisions which are based on the qualities of coal delivered and
changes in indices of mining costs. All of the output from the Warkworth mine
is exported: 75% is sold under contracts, including contracts with the other
joint venture partners in Warkworth, and the remaining 25% is sold on the spot
market. Peabody Resources' export contracts normally provide for annual price
renegotiations. See "--Legal Proceedings."
TRANSPORTATION
Coal for domestic consumption is usually sold at the mine and transportation
costs are normally borne by the purchaser. Export coal is usually sold at the
loading port. The ocean freight is paid by the purchaser. Shipping costs from
the mine to the port are usually borne by the producer.
The majority of the Company's sales volume is shipped by rail, but a portion
of the Company's production is shipped by other modes. For example, coal from
the Company's Camp complex in Kentucky is shipped by barge to its customer,
TVA's Cumberland plant in Tennessee. Coal from the Black Mesa mine in Arizona
is transported by a 273-mile coal-water pipeline to the Mohave Power Station
in southern Nevada. Coal from the Seneca mine in Colorado is transported by
truck to a nearby power plant. Other mines transport coal by rail and barge or
by rail and lake carrier on the Great Lakes. The Company shipped approximately
3.5 million tons in fiscal 1998 to Dominion Terminals Associates' loading port
in Newport News, Virginia, a coal loading port in which the Company has a 30%
interest. From this facility, one of the largest coal export facilities in the
United States, the coal is exported to customers in Japan, Europe and South
America. All coal from the Company's Powder River Basin mines is shipped by
rail, and two competing railroads, the BNSF and the Union Pacific, serve three
of the Company's four southern Powder River Basin mines. Approximately 8,000
unit trains are loaded each year to accommodate the coal shipped by the
Company's four mines in the southern Powder River Basin which totaled 91.7
million tons in fiscal 1998. A unit train generally consists of 100 to 110
rail hopper cars, each car capable of holding 100 to 120 tons of coal.
Managing the loading of trains and barges is the responsibility of the
Company's two transportation departments, with one responsible for the western
U.S. coal mines and the other for the eastern U.S. mines. Due to its modern
coal-loading facilities and the experience of its transportation coordinators,
management believes the Company enjoys good relationships with the rail
carriers and barge companies.
Peabody Resources ships all of its coal production from the Ravensworth and
Narama mines, which account for 75% of its total sales, by overland conveyer
to the nearby Macquarie Generation's Bayswater and Liddell power stations.
Coal from Peabody Resources' Warkworth operations is shipped to Newcastle by
rail, where it is sold to export customers. Peabody Resources owns 13.9% of
the Mount Thorley railroad load out facility and 4.2% of the coal loading
facility at the port.
SALES AND MARKETING
COALSALES and COALTRADE undertake the sales and marketing functions for the
Company's U.S. operating subsidiaries, including exports from the United
States. COALSALES charges each mining subsidiary for acting as an agent in the
sale and marketing of the coal produced, and it generates profits through its
brokering and agency activities. COALTRADE buys and resells coal produced by a
number of third parties. As of March 31, 1998, they had 53 employees located
at five sites.
The Company annually prepares a marketing plan that sets out the sales
targets for the next five years by region, coal type and markets. The
strategic plan formulates and concentrates the ongoing work carried out by the
sales and marketing teams to increase the Company's sales in different markets
and to expand present markets through different sales and marketing
initiatives. The sales teams at each location are responsible for formulating
the marketing plan for their region. This regional plan is reviewed by the
president of each company and then passed on to the marketing services team.
The overall group plan is then formalized and authorized.
The majority of sales contracts won by the Company are through competitive
tenders; although, where the Company is aware of an opportunity, it may
approach its customers or potential customers with a sales proposal. The
pricing process for these approaches is similar, although pricing for tenders
is usually more competitive.
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COMPETITION
The markets in which the Company sells its coal are highly competitive. The
top twenty producers in the U.S. coal industry produce approximately 70% of
total U.S. coal, although there are approximately 1,000 coal producers in the
United States. The Company's principal competitors in its coal operations are
other large coal producers. The Company's largest competitors are Cyprus Amax
Coal Company, CONSOL Coal Group, ARCO Coal Co., Kennecott Energy Co., Arch
Coal, Inc., Zeigler Coal Holding Company, Kerr-McGee Coal Corp. and A.T.
Massey Coal Company, which collectively produced approximately 36% of total
U.S. coal production in 1996.
1996 U.S. PRODUCTION VOLUMES OF MAJOR COAL PRODUCERS
<TABLE>
<CAPTION>
PRODUCTION
COMPANY TOTAL PRODUCTION SHARE GEOGRAPHIC FOCUS
- ------------------------ ------------------ ---------- ----------------
(TONS IN MILLIONS)
<S> <C> <C> <C> <C> <C>
PEABODY................. 156.7 14.7% NATIONAL
Cyprus Amax............. 75.4 7.1 National
CONSOL.................. 71.6 6.7 NAPP, CAPP, ILB
ARCO Coal(/1/).......... 50.9 4.8 SPRB, WB
Arch Coal............... 47.4 4.5 CAPP, ILB
Kennecott............... 45.1 4.2 SPRB, NPRB, WB
A.T. Massey............. 31.9 3.0 CAPP
Zeigler Coal............ 31.4 3.0 National
Kerr-McGee(/2/)......... 31.3 2.9 SPRB, ILB
Texas Utilities......... 29.2 2.7 Texas Lignite
------- -----
Top 10 Total........... 570.9 53.6%
Other Producers......... 493.0 46.4
------- -----
U.S. Total............. 1,063.9 100.0%
</TABLE>
- --------
Source:NMA, Facts About Coal, 1997-98 (for individual production); EIA for
U.S. total production.
Key: NAPP=Northern Appalachia; CAPP=Central Appalachia; SAPP=Southern
Appalachia; ILB=Illinois Basin; WB=Western Bituminous; SPRB=Southern
Powder River Basin; and NPRB=Northern Powder River Basin.
(1) Arch Coal acquired ARCO Coal's U.S. coal reserves in June 1998.
(2) Kennecott acquired Kerr-McGee's Powder River Basin coal reserves, which
represented approximately 24.5 million tons of coal production in 1996, in
June 1998.
The markets in which the Company sells its coal are affected by a number of
factors beyond the Company's control. Continued demand for the Company's coal
and the prices obtained by the Company depend primarily on the coal
consumption patterns of the electricity industries in the United States and
the Pacific Rim countries, the availability, location (and therefore the cost
of transportation), price of competing coal and alternative electricity
generation and fuel supply sources such as natural gas, oil, nuclear and
hydroelectric. Coal consumption patterns are affected primarily by the demand
for electricity, environmental and other governmental regulations and
technological developments. In recent years there has been excess coal
production capacity in the United States due to increased development of large
surface mining operations in the western United States, more efficient mining
equipment and techniques and reduced consumption of high sulfur coal.
Competition resulting from excess capacity tends to cause producers to reduce
prices and to pass productivity gains achieved at the mines through to
customers. The Company competes on the basis of coal quality, delivered price,
customer service and support and reliability.
In the six years ended December 31, 1996, Australian saleable coal
production increased by 18% or 3.4% per annum. Total Australian coal
production rose 3.1% in 1996. The Company's principal Australian competitors
are coal companies owned by large mineral or oil producing companies, although
one of the top ten competitors is a state-owned enterprise.
SUPPLIERS
The main types of goods purchased by the Company are mining equipment and
replacement parts, explosives, fuel, tires and lubricants. The Company also
purchases coal from third parties to satisfy some of its
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customer contracts. Purchases of capital goods, materials and services are
approximately $550 million per annum, which is approximately 25% of the
Company's annual revenue. The supplier base providing these goods has been
relatively consistent in recent years as the Company has many long established
relationships with its key suppliers.
Between 25% and 30% of goods and services are supplied by the top ten
suppliers, and some 70% of goods are provided by the top 100 suppliers. It is
with these main suppliers that the large contracts are held. The Company does
not have any supply arrangements with related parties and all transactions are
carried out on an arm's length basis. Peabody considers all suppliers of a
particular category of supplies to be interchangeable and does not consider
the Company to be vulnerable to over-dependence on any one supplier.
Since 1990, the Company has invested approximately $400 million to replace
depleting mines with new, more profitable production capacity and to position
the Company for continued earnings growth in high growth markets.
Approximately $900 million was invested to replace assets at existing
operations. Long term planning is essential since there are long lead times
between order and delivery for most of the large capital items. A new
stripping shovel, for example, may take up to a year to obtain, and a truck
between four and six months. Capital equipment suppliers deliver the goods to
the mines and help the Company install the equipment.
CERTAIN LIABILITIES
The Company's long-term liabilities in the United States for pensions,
retiree health care, work-related injuries and illnesses, and mine reclamation
reflect the Company's commitment to its employees and to environmental
stewardship. The total amount of these liabilities reflects the size,
diversity and changing nature of the Company, which has been transformed from
a historically midwestern, union-oriented, high sulfur producer into a much
larger, predominantly low sulfur producer from nearly every U.S. coal region
and Australia. The majority of these liabilities relate to the past operations
of operating subsidiaries, which used to have a greater number of employees
and mines than exist today in the transformed Company.
All U.S. coal companies are subject to laws and regulations governing mine
reclamation and other environmental liabilities for work-related injuries and
illnesses. In addition, labor contracts with the UMWA and voluntary
arrangements with non-union employees include long-term benefits, notably
health care coverage for retired and future retirees and their dependents. The
Company provides reserves for a substantial portion of these obligations.
These obligations fall into four principal categories: reclamation, workers'
compensation (including black lung), pensions and retiree health care.
Reclamation. All coal mining companies must return the land on which they
mine to its original state. Reclamation liabilities primarily represent the
future costs to restore surface lands to productivity levels equal to or
greater than pre-mining conditions, as required by SMCRA. In limited
instances, this liability is recoverable from customers under the terms of
CSAs. Short-term ongoing reclamation activities are undertaken as areas are
disturbed in the mining process. Long-term reclamation and mine closing costs
are projected and accrued for during the mine life. Other environmental
liabilities such as air and water quality are also recorded. The long-term
reclamation costs, mine-closing costs and other environmental liability
accruals totaled approximately $490.1 million on the Company's pro forma
balance sheet as of March 31, 1998, $20.3 million of which is categorized as
Other Noncurrent Liabilities and $8.5 million of which is a current liability.
The amount that is included as an operating expense for the pro forma year
ended March 31, 1998 was $12.4 million, while the related cash expense for
such liability was $39.1 million. See "--Environmental" and "Regulatory
Matters."
Workers' Compensation. These liabilities represent the actuarial estimates
for compensable, work-related injuries (traumatic claims) and occupational
disease, primarily black lung disease (pneumoconiosis). The Federal Black Lung
Benefits Act requires employers to pay black lung awards to former employees
who filed claims after July 1, 1973. Prior claims are paid from the Black Lung
Trust Fund, which is supported by an excise tax on all U.S. coal production.
On a pro forma basis, these liabilities will be discounted at 7.25%. These
liabilities
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totaled approximately $263.8 million on the Company's pro forma balance sheet
as of March 31, 1998, $39.9 million of which is a current liability. The
amount that was included as an operating expense for the pro forma year ended
March 31, 1998 was $25.2 million, while the related cash expense for such
liability was $41.9 million.
Pension Related Provisions. These costs represent the unfunded actuarially-
estimated cost of paying pension benefits to current active employees when
they retire. Provisions for active employees reflect their service to date and
additional amounts are provided so that the total liability is accrued when
the employee actually retires. Annual contributions to the pension plans are
determined by consulting actuaries based on ERISA minimum funding standards.
On a pro forma basis, these liabilities will be discounted at 7.25%. These
liabilities totaled approximately $11.2 million on the Company's pro forma
balance sheet as of March 31, 1998, $13.0 million of which is a current
liability. The amount that was included as an operating expense for the pro
forma year ended March 31, 1998 was $7.3 million, while the related cash
expense for such liability was $5.5 million.
Retiree Health Care. Consistent with SFAS 106, the Company records a
liability representing the estimated cost of providing retiree health care
benefits to current retirees and active employees who will retire in the
future. Provisions for active employees represent the amount recognized to
date, based on their service to date; additional amounts are provided
periodically so that the total liability is accrued when the employee retires.
On a pro forma basis, these liabilities will be discounted at 7.25%.
A second category of retiree health care obligations represents the
liability for future contributions to the UMWA Combined Fund created by
federal law in 1992. This multi-employer fund provides health care benefits to
a closed group of former employees who retired prior to 1977; no new retirees
will be added to this group. The liability is subject to increases or
decreases in per capita health care costs, offset by the mortality curve in
this aging population of beneficiaries.
The retiree health care liabilities totaled approximately $1,036.3 million
on the Company's pro forma balance sheet as of March 31, 1998, $48.9 million
of which is a current liability. The amount that was included as an operating
expense in the pro forma year ended March 31, 1998 was $76.2 million, while
the related cash expense for such liability was $49.1 million. Obligations to
the Combined Fund totaled $74.8 million on the Company's pro forma balance
sheet as of March 31, 1998, $8.8 million of which is a current liability. The
amount that was credited to operating income for the pro forma year ended
March 31, 1998 was $0.5 million, while the related cash expense for such
liability was $11.8 million.
The active management of these liabilities is a key focus of senior
executives. While variances have occurred within a category of liability, as a
whole cash expenses for these liabilities has approximated the amounts charged
to earnings. Provisions for these liabilities reflect standard U.S. coal
industry accounting practices. These costs are borne by the operating
subsidiaries from which the obligations arose.
RESEARCH AND DEVELOPMENT
The Company places great emphasis on research and development of new
technologies in the coal industry. The Company's engineering staff and
purchasing departments work with manufacturers to design and produce equipment
that management believes will add value to the business. For example, the
Company has worked with a manufacturer to design larger trucks to haul
overburden and coal at various mines throughout the Company. The Company was
the first to use 265-ton haul trucks, which are now standard in the industry.
In Arizona, the Company helped to design custom-built 300-ton haul trucks.
The Company also conducts research and development in-house. For example,
the Company helped develop a remote controlled continuous miner. Previously,
continuous miners were driven manually and, due to the difficulty of obtaining
a clear view of the coal seam, were not always accurate. Remote controlled
continuous miners are now standard throughout the industry.
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The Company is the largest user of nuclear analyzers among coal producers,
according to the manufacturer of this sophisticated equipment. Nuclear quality
analyzers allow continuous analysis of certain coal quality parameters such as
sulfur content. Their use ensures consistent product quality and helps
customers meet stringent air emission requirements.
The Company also uses GPS (global positioning satellite) technology
extensively in its larger surface mining operations to ensure proper mine
layout.
CITIZENS POWER
Industry Overview
Electricity is the most prevalent commodity sold in the U.S. economy, with
retail volume in 1997 exceeding $214 billion according to EIA. While the
independent power marketing industry is in a developmental stage, in 1997 the
volume of megawatt hours traded grew 418% from the volume traded in 1996,
according to FERC.
The U.S. electricity market is highly fragmented with more than 3,000
entities selling power on a wholesale and retail basis, including more than
200 investor-owned utilities, 50 major federal and municipally-owned utilities
and hundreds of municipal power entities and rural co-operatives.
Historically, these entities have been highly-regulated, but with the onset of
deregulation, the Company expects the role of power marketing companies to
continue to grow. The Company believes that deregulation will create new
market opportunities for power and fuel trading, energy contract restructuring
and for new products, such as options, to facilitate the rationalization of
the electricity market.
Citizens Power Overview
Citizens Power is a licensed power marketer that trades and markets electric
power and other energy commodities and related commodity risk management
products. According to FERC, for the quarter ended December 31, 1997, Citizens
Power was among the top ten of more than 200 FERC-licensed power marketers as
measured by number of megawatt hours bought and sold. Citizens Power also
structures and trades electricity and fuel-related risk management products
and provides services related to the restructuring of generation and
transmission assets.
Citizens Power obtained the first power marketing license from FERC in 1989.
Since that time, the Company has continued to solidify its position as an
innovator in the U.S. power marketing industry. At present, Citizens Power is
an integrated energy company with business activities in three main areas: (i)
power/energy sales and trading, (ii) transaction/asset restructuring and (iii)
fuel/power integration.
Power/Energy Sales and Trading
The Company executes short-term, intermediate-term and long-term trades of
both physically and financially settled electricity and natural gas contracts
and the Company is also preparing to enter the oil and coal trading markets.
The Company's trading activities provide transmission coverage throughout the
United States, maximizing access to counterparties and increasing liquidity.
The Company uses its trading activities as a platform to develop higher margin
structured risk management products and to support its asset restructurings.
The Company manages its trading exposure with a value-at-risk measurement,
limiting the exposure to certain defined limits.
Transaction/Asset Restructuring
Transaction restructuring creates value by correcting inefficiencies in
ownership, operation, dispatching, pricing, risk allocation, regulation of
power supply assets and contractual relationships. The transactions enhance
value by using financial leverage and tax-advantaged structures, managing and
reducing the forward curve of power costs, reallocating transactional risks
and arbitraging supply costs and discount rates.
There is approximately 35,000MW of NUG capacity in the United States. This
capacity is purchased through long-term contracts which are priced
significantly above the current market rates. The Company uses its
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expertise to restructure these assets, creating solutions for all
participants. Each transaction is unique and requires an established trading
infrastructure, strong industry-wide relationships and complex negotiations
with multiple parties. Although many competitors have attempted to structure
their own transactions, the Company believes it is the only power marketer
which has successfully closed this type of transaction.
Fuel/Power Integration
Through Citizens Power's Powerfuels group, the Company restructures fuel
contracts by replacing long-term above-market coal contracts with higher
profit integrated power/coal/gas transactions. In addition, the Company
aggressively pursues coal switching opportunities to obtain new markets by
packaging coal, power, technical assistance and financing. Cross-commodity
swaps, coal tolling and other structured products provide opportunities to
increase overall market share, profitability and risk mitigation. The Company
also pursues long-term Orimulsion(R) conversion supply contracts and plant
conversion/acquisition projects. Orimulsion is a Venezuelan fuel oil that
burns cleanly if scrubbed. Florida is currently examining the use of
Orimulsion and, if accepted, the Company believes other states will follow.
Information Technology
Citizens Power has made significant investments in an integrated information
technology infrastructure. The Power Trade System ("PTS") links the risk
management, trading and accounting functions providing for integrated market,
credit and operational risk management. PTS was designed from the existing
infrastructure and developed using the latest client-server technology,
allowing for flexible in-house customization and expansion. The system has
significant capacity for increasing trading volumes.
EMPLOYEES OF THE COMPANY
As of March 31, 1998, the Company had a total of 7,344 employees, 5,466 of
whom worked in coal production, 1,878 of whom worked in the management of its
coal business and 116 of whom worked in Citizens Power. Of these employees,
6,331 worked in the United States and 1,013 worked in foreign countries.
Approximately 56% of the Company's U.S. coal employees are affiliated with
unions. Relations with organized labor are extremely important to the
viability of the Company. Union labor west of the Mississippi is represented
by the UMWA and falls under the Western Surface Agreement, which was ratified
in 1996 and is effective through August 31, 2000. Union labor east of the
Mississippi is also represented by the UMWA but falls under the National
Bituminous Coal Wage Agreement ("NBCWA"). On December 16, 1997, the NBCWA, a
five-year labor agreement effective from January 1, 1998 to December 31, 2002,
was ratified by the UMWA. The agreement, which was ratified 10 months prior to
expiration of the current agreement, sets forth terms that both sides felt
were positive.
The Australian coal mining industry is highly unionized and the majority of
workers employed at Peabody Resources are members of trade unions. These
employees are represented by three unions: the United Mine Workers, which
represents the production employees, and two unions that represent the other
staff. Since the Company acquired Peabody Resources in 1993, there have not
been any significant disputes or stoppages at mines operated by Peabody
Resources. The miners at Warkworth mine signed a three year labor agreement
which expires in September 1999. The miners at the Ravensworth and Narama
mines signed a two year labor agreement which expired in March 1998, but
negotiations are ongoing and there have been no resulting work stoppages to
date.
LEGAL PROCEEDINGS
From time to time, the Company is involved in legal proceedings arising in
the ordinary course of its business. Management believes it is adequately
reserved for these liabilities and that there is no individual case pending
that could have a material adverse effect on the Company or its financial
condition or results of
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operations. The Company's significant legal proceedings are discussed below.
Concurrent adverse resolution of such proceedings could have a material effect
on the results of operations for a particular interim or annual period.
Eastern Enterprises
On November 1, 1993, Eastern Enterprises filed suit in the U.S. District
Court for the District of Massachusetts against the Social Security
Administration and the Combined Fund claiming that the Coal Act, as applied to
Eastern Enterprises, violated the due process and taking clauses of the Fifth
Amendment. See "Regulatory Matters." In 1994, Eastern Enterprises filed a
third party complaint against Peabody Holding Company, Eastern Associated and
Eastern Associated's parent company, Coal Properties Corp., seeking
indemnification or contribution with respect to any liability that Eastern
Enterprises may have under the Coal Act. Eastern Enterprises claimed that the
amount of its Coal Act liabilities was approximately $100 million.
The District Court held in 1996 that the Coal Act was constitutional.
Eastern Enterprises filed an appeal with the First Circuit Court of Appeals,
which affirmed the district court's decision. The U.S. Supreme Court accepted
Eastern Enterprises' petition for certiorari on the constitutional claims. In
a plurality decision issued on June 26, 1998, the Supreme Court found that the
Coal Act as applied to Eastern Enterprises violated the takings clause of the
Fifth Amendment. The UMWA beneficiaries that were assigned to Eastern
Enterprises will continue to receive retiree health care benefits from the
Combined Fund. The cost of providing benefits to these "orphans" should be
borne by the AML fund, which is provided for in the Coal Act.
Peabody Holding Company and its subsidiaries will seek to have the third-
party complaint dismissed because Eastern Enterprises now has no liability
under the Coal Act.
The Company has asserted substantial defenses, but based on the Company's
preliminary evaluation of the issues and the potential impact, the Company
believes that the matter will be resolved without a material adverse effect on
its financial condition or results of operations.
Salt River Project Agricultural Improvement and Power District
The Salt River Agricultural Improvement and Power District and the other
owners of the Navajo Generating Station (collectively "Salt River") filed a
lawsuit on September 27, 1996 in the Superior Court of Maricopa County in
Arizona seeking a declaratory judgment that certain costs relating to final
reclamation, environmental monitoring work and mine decommissioning ("Mine
Decommissioning Costs"), and costs relating to life insurance and retiree
health care benefits ("Retiree Health Care Costs") are not recoverable by
Peabody Western under the terms of a CSA dated February 18, 1977. The contract
expires in 2011.
Peabody Western filed a Motion to Compel Arbitration of these claims, which
was partially granted by the trial court. The trial court ruled that the Mine
Decommissioning Costs were subject to arbitration but that the Retiree Health
Care Costs were not subject to arbitration. Peabody Western has filed an
appeal of the order denying arbitration of the Retiree Health Care Costs with
the Arizona Court of Appeals which was recently denied by the Court. Peabody
Western has filed a Motion for Reconsideration with the Arizona Court of
Appeals. Peabody Western and Salt River are proceeding to arbitrate the Mine
Decommissioning Costs issue.
If Salt River is successful in the arbitration and litigation, the Company's
financial condition and results of operations may be adversely affected.
However, based on the Company's preliminary evaluation of the issues and the
potential impact on the Company, and while the outcome of litigation and
arbitration is subject to uncertainties, the Company believes that the matter
will be resolved without a material adverse affect on its financial condition
or results of operations.
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Southern California Edison Company
In response to a demand for arbitration by Peabody Western, Southern
California Edison Company and the other owners of the Mohave Generating
Station (collectively "Edison") filed a lawsuit on June 20, 1996 in the
Superior Court of Maricopa County, Arizona. The lawsuit sought a declaratory
judgment that Mine Decommissioning Costs and Retiree Health Care Costs are not
recoverable by Peabody Western under the terms of a CSA dated May 26, 1976.
The contract will expire in 2005.
Peabody Western filed a Motion to Compel Arbitration, which was granted, by
the trial court. Edison appealed this order to the Arizona Court of Appeals,
which denied its appeal. The Arizona Supreme Court recently heard an appeal by
Edison on whether these issues are arbitrable under the CSA. The parties have
agreed to a stay of the arbitration until the Arizona Supreme Court determines
whether the issues are the subject of arbitration under the CSA.
If Edison is successful in the matter, the Company's financial condition and
results of operations may be adversely affected. However, based on the
Company's preliminary evaluation of the issues and the potential impact on the
Company, and while the outcome of litigation is subject to uncertainties, the
Company believes that the matter will be resolved without a material adverse
affect on its financial condition or results of operations.
Public Service Company of Colorado
In August 1996, Seneca Coal Company ("Seneca") filed a demand for
arbitration in accordance with the terms of an Amended Revised Coal Supply
Agreement dated December 1, 1971 (the "1971 Agreement") between Seneca and
three electric utilities, Public Service Company of Colorado, Salt River
Project Agricultural Improvement District and PacifiCorp (the "Hayden
Participants"). The Hayden Participants own the Hayden Electric Generating
Station at Hayden, Colorado. The arbitration demand requested the entry of an
award for Seneca and against the Hayden Participants for amounts attributable
to final reclamation, mine decommissioning and environmental monitoring of the
Seneca mine and life insurance and post-retirement health care costs ("post-
mine closure costs").
In September 1996, the Hayden Participants filed a complaint for declaratory
judgment in the District Court for the City and County of Denver seeking a
judicial declaration that they were not responsible for post-mine closure
costs as a matter of law. The Hayden Participants also requested declaratory
and other relief with respect to other claims against Seneca.
The arbitration provision in the 1971 Agreement limits the jurisdiction of
the arbitrators to resolution of disputed issues of fact but the arbitrators
are to determine the arbitrability of any dispute in the first instance.
Accordingly, Seneca filed a motion to stay the judicial proceedings with
respect to the issue of responsibility under the 1971 Agreement for post-mine
closure costs pending the outcome of the arbitration. The District Court
granted the motion in January 1997.
Seneca has furnished the Hayden Participants with reports prepared by
experts regarding estimated post-mine closure costs. Pre-hearing discovery is
under way in the arbitration and hearings will take place late in calendar
1998. A decision from the arbitrators is expected in early 1999. The District
Court's application of legal principles to the facts as found by the
arbitrators will take place thereafter.
The outcome of the arbitration and the subsequent judicial proceeding is
uncertain. Entry of a judgment that the Hayden Participants are not
responsible for post-mine closure costs may adversely affect the Company's
financial condition and results of operations. Based on the Company's
preliminary evaluation of the issues, and while the outcome of litigation is
subject to uncertainties, the Company believes that the dispute will be
resolved without a material adverse effect on its financial condition or
results of operations.
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Macquarie Generation
In September 1997, Peabody Resources filed a lawsuit against Macquarie
Generation in the Supreme Court of New South Wales, Commercial Division,
seeking damages for certain coal deliveries which were not paid by Macquarie
Generation and for a declaratory judgment regarding the assignment to
Macquarie Generation of two long-term CSAs for the Ravensworth and Narama
mines. The contracts expire in 2001 and 2012, respectively. Macquarie
Generation later agreed that the two contracts were properly assigned to it.
Macquarie Generation subsequently filed a cross-claim against Peabody
Resources alleging that Peabody Resources breached the labor escalation
provisions in the CSAs, committed misrepresentations regarding the labor costs
and violated the Australian trade practices and fair trading laws in relation
to the Narama contract. Macquarie Generation sought to terminate or rescind
the Narama CSA and has sought damages from Peabody Resources for alleged
breaches of both contracts. Even though the Company continues delivering coal,
Macquarie Generation has unilaterally reduced the price that it is paying for
coal deliveries under the Narama contract. Peabody Resources has vigorously
opposed Macquarie Generation's claims and will seek to enforce Macquarie
Generation's obligations under the contracts. A trial date is set for
September 7, 1998.
If Macquarie Generation is successful in the litigation, the Company's
earnings and cash flow may be adversely affected depending on other sales
opportunities. However, based on the Company's preliminary evaluation of the
issues and the potential impact on the Company, and while the outcome of
litigation is subject to uncertainties, the Company believes that the matter
will be resolved without a material adverse effect on its financial condition
or results of operations.
Minerals Management Services
The Minerals Management Service issued a preliminary administrative decision
in August 1992, determining that Powder River had underpaid royalties owed to
the federal government. Since that time, no further action has been taken by
the agency to issue a final, appealable decision. Pending such decision, the
Company plans to appeal. Criminal and civil investigations were begun by the
federal government in 1993 and 1996, respectively, to examine Powder River's
activities with respect to the transactions at issue in the administrative
matter. Powder River has fully cooperated with these investigations by
providing documents and witnesses for interview. To date, no civil or criminal
charges have been brought against the Company. If such claims are made and a
case is successfully argued against the Company, the Company's financial
condition and results of operations may be adversely affected. However, based
on the Company's preliminary evaluation of the issues and the potential impact
on the Company, and while the outcome of any potential litigation is subject
to uncertainties, the Company believes that the matter will be resolved
without a material adverse affect on its financial condition or results of
operations.
ENVIRONMENTAL
Federal and State Superfund Statutes
The Comprehensive Environmental Response, Compensation and Liability Act and
similar state laws create liability for investigation and remediation in
response to releases of hazardous substances in the environment and for
damages to natural resources. Under CERCLA and many state Superfund statutes,
joint and several liability may be imposed on waste generators, site owners
and operators and others regardless of fault.
Gold Fields, its predecessors and its former parent company are or may
become parties to environmental proceedings which have commenced or may
commence in the United States in relation to certain sites previously owned or
operated by those entities or companies associated with them. The Company has
agreed to indemnify Gold Fields' former parent company for any environmental
claims resulting from any activities, operations or conditions that occurred
prior to the sale of Gold Fields to the Company. Gold Fields is currently
involved in environmental investigation or remediation at six sites and is a
defendant in litigation with private parties involving three other sites.
These nine sites were formerly owned or operated by Gold Fields. EPA has
placed three of these sites on the National Priorities List, promulgated
pursuant to the CERCLA and one of the sites is
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on a similar state priority list. There are a number of further sites in the
United States which were previously owned or operated by such companies which
could give rise to environmental proceedings in which Gold Fields could incur
liabilities.
Where such sites were identified, the directors of The Energy Group
commissioned, in connection with the spin-off of The Energy Group, a review of
publicly available information by independent environmental consultants in
order to assess the estimated total amount of the liability per site and the
proportion of those liabilities which Gold Fields is likely to bear. The
available information on which to base this review was very limited since all
of the sites except for three sites (on which no remediation is currently
taking place) are no longer owned by Gold Fields.
On the basis of that review, The Energy Group provided for the above
environmental liabilities relating to Gold Fields in the total sum of $73.6
million as of March 31, 1997. Significant uncertainty exists as to whether
these claims will be pursued against Gold Fields in all cases, and where they
are pursued, the amount of the eventual costs and liabilities, which could be
greater or less than this provision. As of March 31, 1998, the provision was
reduced to $68.6 million to reflect expenditures incurred during the period.
The Company believes that the remaining amount of the provision is adequate to
cover these environmental liabilities.
Although waste substances generated by coal mining and processing are
generally not regarded as hazardous substances for the purposes of CERCLA,
some products used by coal companies in operations, such as chemicals, and the
disposal of such products are governed by the statute. Thus, coal mines
currently or previously owned or operated by the Company, and sites to which
the Company sent waste materials, may be subject to liability under CERCLA and
similar state laws. See "Risk Factors--Risks Relating to the Company--
Government Regulation of the Mining Industry" and "Regulatory Matters."
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REGULATORY MATTERS
The Company's operations are subject to extensive regulation in the United
States and Australia regarding production, sale, distribution, health and
safety and environmental matters.
UNITED STATES
The U.S. coal mining industry is subject to regulation by federal, state and
local authorities on matters such as employee health and safety, permitting
and licensing requirements, air quality standards, water pollution, plant and
wildlife protection, the reclamation and restoration of mining properties
after mining has been completed, the discharge of materials into the
environment, surface subsidence from underground mining and the effects of
mining on groundwater quality and availability. In addition, the industry is
affected by significant legislation mandating certain benefits for current and
retired coal miners. Numerous federal, state and local governmental permits
and approvals are required for mining operations. The Company believes that
all permits currently required to conduct its present mining operations have
been obtained. The Company may be required to prepare and present to federal,
state or local authorities data pertaining to the effect or impact that a
proposed exploration for or production of coal may have on the environment.
Such requirements could prove costly and time-consuming, and could delay
commencement or continuation of exploration or production operations. Future
legislation and administrative regulations may emphasize the protection of the
environment and, as a consequence, the activities of the Company may be more
closely regulated. Such legislation and regulations, as well as future
interpretations and more rigorous enforcement of existing laws, may require
substantial increases in equipment and operating costs to the Company and
delays, interruptions or a termination of operations, the extent of which
cannot be predicted. See "Risk Factors--Risks Relating to the Company--
Government Regulation of the Mining Industry."
The Company's independent operating subsidiaries endeavor to conduct mining
operations in compliance with all applicable federal, state and local laws and
regulations. However, because of extensive and comprehensive regulatory
requirements, violations during mining operations occur from time to time in
the industry. None of the violations to date or the monetary penalties
assessed upon the Company's subsidiaries has been material.
Mine Health and Safety
Stringent health and safety standards have been imposed by federal
legislation since the Coal Mine Health and Safety Act of 1969 was adopted.
That legislation resulted in increased operating costs and reduced
productivity. The Federal Mine Health and Safety Act of 1977 significantly
expanded the enforcement of health and safety standards and imposed health and
safety standards on all aspects of mining operations.
Most of the states in which the Company operates have state programs for
mine health and safety regulation and enforcement. In combination, federal and
state health and safety regulation in the coal mining industry is perhaps the
most comprehensive and pervasive system for protection of employee health and
safety affecting any segment of U.S. industry. While regulation has a
significant effect on the Company's operating costs, its U.S. competitors are
subject to the same degree of regulation.
One of the Company's long-term goals is to achieve excellent health and
safety performance as measured by accident frequency rates and other measures.
The Company believes that attainment of this goal is inherently tied to the
attainment of productivity and financial goals. The Company seeks to implement
this goal by: training employees in safe work practices; openly communicating
with employees; establishing, following and improving safety standards;
involving employees in establishing safety standards; and recording, reporting
and investigating all accidents, incidents and losses to avoid reoccurrences.
As evidence of the effectiveness of the Company's safety program, the
Company's accident rate has fallen by 80% during the period from October 1,
1990 to March 31, 1998.
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INJURY & ILLNESS RATE/(1)/: MINING VS. OTHER U.S. INDUSTRIES, 1995
BAR GRAPH
Durable Goods 12.8
Construction 11.6
Manufacturing 10.6
Nondurable Goods 9.9
Agriculture, Forestry &
Fishing 9.7
Transportation & Public
Utilities 9.1
Wholesale & Retail
Trade 7.5
Services 6.4
Mining 6.2
Black Lung
Under the Black Lung Benefits Revenue Act of 1977 and the Black Lung
Benefits Reform Act of 1977, as amended in 1981, each coal mine operator is
required to secure payment of federal black lung benefits to claimants who are
current and former employees and to a trust fund for the payment of benefits
and medical expenses to claimants who last worked in the coal industry prior
to July 1, 1973. Less than 7% of the miners currently seeking federal black
lung benefits are awarded such benefits by the federal government. The trust
fund is funded by an excise tax on production of up to $1.10 per ton for deep-
mined coal and up to $0.55 per ton for surface-mined coal, neither amount to
exceed 4.4% of the sales price. This tax is passed on to the purchaser under
many of the Company's coal sales agreements.
Legislation was introduced in the last Congress on black lung reform.
Although this legislation died when Congress adjourned in 1997, it is expected
that such legislation will be reintroduced for consideration by the current
Congress. The legislation, which is expected to be introduced, would restrict
the evidence that can be offered by a mining company, establish a standard for
evaluation of evidence that greatly favors black lung claimants, allow
claimants who have been denied benefits at any time since 1981 to refile their
claims for consideration under the new law, make surviving spouse benefits
significantly easier to obtain and retroactively waive repayment of
preliminarily awarded benefits that are later determined to have been
improperly paid. If this or similar legislation is passed, the number of
claimants who are awarded benefits could significantly increase. There can be
no assurance that such proposed legislation or other proposed changes in black
lung legislation will not have an adverse effect on the Company.
The U.S. Department of Labor has issued proposed amendments to the
regulations implementing the federal black lung laws which, among other
things, establish a presumption in favor of a claimant's treating physician
and limit a coal operator's ability to introduce medical evidence regarding
the claimant's medical condition. If adopted, the amendments could have an
adverse impact on the Company, the extent of which cannot be accurately
predicted.
Coal Industry Retiree Health Benefit Act of 1992
The Coal Act was enacted to provide for the funding of health benefits for
certain UMWA retirees. The Coal Act established the Combined Fund into which
"signatory operators" and "related persons" are obligated to pay annual
premiums for beneficiaries. The Coal Act also created a second benefit fund
("1992 Fund") for
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miners who retired between July 21, 1992 and September 30, 1994 and whose
former employers are no longer in business. Companies which are liable under
the Coal Act must pay premiums to the Combined Fund. Annual payments made by
PCC and Eastern Associated under the Coal Act are less than half of the
amounts paid prior to the enactment of that Act. Liabilities associated with
the Coal Act totaled $74.8 million on the Company's pro forma balance sheet as
of March 31, 1998, $8.8 million of which is a current liability. The amount
that was credited to operating income for the pro forma twelve month period
ended March 31, 1998 was $0.5 million, while the related cash expense for such
liability was $11.8 million.
Environmental Laws
The Company is subject to various federal, state and foreign environmental
laws. These laws require approval of many aspects of coal mining operations,
and both federal and state inspectors regularly visit the Company's mines and
other facilities to ensure compliance.
Surface Mining Control and Reclamation Act. SMCRA, which is administered by
the Office of Surface Mining Reclamation and Enforcement ("OSM"), establishes
mining and reclamation standards for all aspects of surface mining as well as
many aspects of deep mining. SMCRA and similar state statutes, among other
things, require that mined property be restored in accordance with specified
standards and an approved reclamation plan. In addition, the Abandoned Mine
Land Fund, which is part of SMCRA, imposes a fee on all current mining
operations the proceeds of which are used to restore mines closed before 1977.
The maximum tax is $0.35 per ton on surface-mined coal and $0.15 per ton on
deep-mined coal. Under many of the CSAs to which the Company is a party, the
fee is passed on to the purchaser. The Company accrues for the liability
associated with all end of mine reclamation on a rateable basis as the coal
reserve is being mined.
SMCRA also requires that comprehensive environmental protection and
reclamation standards be met during the course of and upon completion of
mining activities. For example, SMCRA requires the Company to restore a
surface mine to approximate original contour as contemporaneously as
practicable with surface coal mining operations. The mine operator must submit
a bond or otherwise secure the performance of these reclamation obligations.
The issuance and renewal of permits for surface mining operations must be
obtained from OSM or, where state regulatory agencies have adopted federally
approved state programs under SMCRA, the appropriate state regulatory
authority. The Company accrues for the liability associated with all end of
mine reclamation on a ratable basis as the coal reserve is being mined. The
estimated cost of reclamation, and the corresponding accrual on the Company's
financial statements, is restated annually. The earliest a reclamation bond
can be released is five years after reclamation to the approximate original
contour has been achieved.
All states in which the Company's active mining operations are located have
achieved primary jurisdiction for SMCRA enforcement through approved state
programs. Although the Company does not anticipate significant permit issuance
or renewal problems, there can be no assurance that the Company's permits will
be renewed or granted in the future or that permit issues will not adversely
affect operations. Under previous SMCRA regulations, responsibility for any
coal operator currently in violation of SMCRA could be imputed to other
companies deemed, according to regulations, to "own or control" the coal
operator. Sanctions included being blocked from receiving new permits and
rescission or suspension of existing permits. Because of a recent federal
court action invalidating these SMCRA ownership and control regulations, the
scope and potential impact of the "ownership and control" requirements on the
Company are unclear. OSM has responded to the court action by promulgating
interim regulations, which more narrowly apply the ownership and control
standards to coal companies. Although the federal action should have by
analogy a precedential effect on state regulations dealing with "ownership and
control," which are in many instances similar to the invalidated federal
regulations, it is not certain what impact the federal court decision will
have on these state regulations.
The Clean Air Act. The Clean Air Act and the Clean Air Act Amendments, and
corresponding state laws that regulate the emissions of materials into the
air, affect coal mining operations both directly and indirectly. Direct
impacts on coal mining and processing operations may occur through Clean Air
Act permitting requirements and/or emissions control requirements relating to
particulate matter (e.g., "fugitive dust") including future regulation of fine
particulate matter measuring 2.5 micrometers in diameter or smaller. In July
1997, EPA adopted new, more stringent NAAQS for particulate matter and ozone.
As a result, some states will
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be required to change their existing implementation plans to attain and
maintain compliance with the new NAAQS. Because coal mining operations emit
particulate matter, the Company's mining operations and utility customers are
likely to be directly affected when the revisions to the NAAQS are implemented
by the states. State and federal regulations relating to implementation of the
new NAAQS may restrict the Company's ability to develop new mines or could
require the Company to modify its existing operations. The extent of the
potential direct impact of the new NAAQS on the coal industry will depend on
the policies and control strategies associated with the state implementation
process under the Clean Air Act, but could have a material adverse effect on
the Company's financial condition and results of operations.
The Clean Air Act indirectly affects coal mining operations by extensively
regulating the air emissions of SO/2/ and other compounds including nitrogen
oxides emitted by coal-fueled utility power plants. Title IV of the Clean Air
Act Amendments places limits on SO/2/ emissions from electric power generation
plants. The limits set baseline emission standards for such facilities.
Reductions in such emissions occurred in Phase I in 1995 and additional
reductions will occur in Phase II in 2000 and will apply to all coal-fired
power plants, including those subject to the 1995 restrictions. The affected
utilities have been and may be able to meet these requirements by, among other
ways, switching to lower sulfur fuels, installing pollution control devices
such as scrubbers, reducing electricity generating levels or purchasing or
trading emission allowances. Specific emission sources will receive these
emission allowances, which utilities and industrial concerns can trade or sell
to allow other units to emit higher levels of SO/2/. The effect of these
provisions of the Clean Air Act Amendments on the Company cannot be completely
ascertained at this time. The Company believes that implementation of Phase II
will likely exert a downward pressure on the price of higher sulfur coal, as
additional coal-burning utility power plants become subject to the
restrictions of Title IV. This price effect is expected to result after the
large surplus of emission allowances which has accumulated in connection with
Phase I has been reduced, and before utilities electing to comply with Phase
II by installing sulfur-reduction technologies are able to implement such a
compliance strategy.
The Clean Air Act Amendments also require that utilities that currently are
major sources of nitrogen oxides in moderate or higher ozone nonattainment
areas install RACT for nitrogen oxides, which are precursors of ozone. In
addition, the recently issued, stricter ozone standards, as discussed above,
are expected to be implemented by EPA by 2003. The Ozone Transport Assessment
Group ("OTAG"), formed to make recommendations to EPA for addressing ozone
problems in the eastern United States, submitted its final recommendations to
EPA in June 1997. Based on the OTAG's recommendations, EPA recently announced
a SIP call, that would require 22 eastern states to make substantial
reductions in nitrogen oxide emissions. Under this proposal, EPA expects that
states will achieve these reductions by requiring power plants to make
substantial reductions in their nitrogen oxide emissions. Installation of RACT
and additional control measures required under the SIP call will make it more
costly to operate coal-fired utility power plants and, depending on the
requirements of individual state attainment plans and the development of
revised new source performance standards, could make coal a less attractive
fuel alternative in the planning and building of utility power plants in the
future.
In addition, the Clean Air Act Amendments require a study of utility power
plant emissions of certain toxic substances, including mercury, and direct EPA
to regulate these substances, if warranted. In a recent report, EPA indicated
that although it plans to further study the issue, it does not plan to propose
regulations in the near future. However, future federal or state regulatory or
legislative activity may seek to reduce mercury emissions and such
requirements, if enacted, could result in reduced use of coal if utilities
switch to other sources of fuel.
Clean Water Act. The Clean Water Act of 1972 affects coal mining operations
by imposing restrictions on effluent discharge into water. Regular monitoring,
reporting requirements and performance standards are preconditions for the
issuance and renewal of permits governing the discharge of pollutants into
water.
Resource Conservation and Recovery Act. The Resource Conservation and
Recovery Act ("RCRA"), which was enacted in 1976, affects coal mining
operations by imposing requirements for the treatment, storage and disposal of
hazardous wastes. Coal mining operations covered by SMCRA permits are exempted
from regulation under RCRA by statute; however the Company cannot predict
whether this exclusion will continue.
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Federal and State Superfund Statutes. CERCLA and similar state laws affect
coal mining and hard rock operations by creating liability for investigation
and remediation in response to releases of hazardous substances to the
environment and for damages to natural resources. Under CERCLA, joint and
several liability may be imposed on waste generators, site owners and
operators and others regardless of fault. See "Business--Environmental--
Federal and State Superfund Statutes."
Global Climate Change. The United States, Australia and over 160 other
nations are signatories to the Convention which is intended to limit or
capture emissions of greenhouse gases such as carbon dioxide. In December 1997
in Kyoto, Japan, the signatories to the Convention established a binding set
of emissions targets for developed nations in the Kyoto Protocol. Although the
specific limits under the terms of the Kyoto Protocol vary from country to
country, under the terms of the Kyoto Protocol, the United States would be
required to reduce emissions to 93% of 1990 levels over a five-year budget
period from 2008 through 2012. Although the United States has not ratified the
Kyoto Protocol and no comprehensive regulations focusing on greenhouse gas
emissions are in place, such restrictions, whether through ratification of the
Kyoto Protocol or other efforts to stabilize or reduce greenhouse gas
emissions, could adversely impact the price and demand for coal. According to
EIA's Annual Energy Outlook for 1998, coal accounts for 34% of greenhouse gas
emissions in the United States, and efforts to control greenhouse gas
emissions could result in reduced use of coal if electric generators switch to
lower carbon sources of fuel.
AUSTRALIA
The Australian mining industry is regulated by Australian federal, state and
local governments with respect to environmental issues such as land
reclamation, water quality, air quality, dust control and noise, planning
issues such as approvals to expand existing mines or to develop new mines and
health and safety issues. The Australian federal government retains control
over the level of foreign investment and export approvals. Industrial
relations are regulated under both federal and state laws. Australian state
governments also require coal companies to post deposits or give other
security against land which is being used for mining, with those deposits
being returned or security released after satisfactory rehabilitation.
Mining and exploration in Australia is generally carried on under leases or
licenses granted by state governments. Mining leases, which are typically for
an initial term of up to 21 years (but which may be renewed), contain
conditions relating to such matters as minimum annual expenditures,
restoration and rehabilitation. Surface rights are typically acquired direct
from landowners and, in the absence of agreement, there is an arbitration
provision in the mining law.
Environmental
Primary responsibility for environmental regulation in Australia is vested
in the state, rather than the federal system. Each state and territory in
Australia has its own environmental and planning regime for the development of
mines. In addition, each state and territory also has a specific act dealing
with mining in particular, regulating the granting of mining licenses and
leases. The mining legislation in each state and territory operates
concurrently with environmental and planning legislation. The mining
legislation governs mining licenses and leases, including the restoration of
land, following the completion of mining activities. Apart from the grant of
the rights to mine itself (which are covered by the mining statutes), all
licensing, permitting, consent and approval requirements are contained in the
various state and territory environmental and planning statutes.
The particular provisions of the various state and territory environmental
and planning statutes vary depending upon the jurisdiction. Despite the
variation in particulars, each state and territory has a system involving at
least two major phases: obtaining the developmental application and, if that
is granted, obtaining the detailed operational pollution control licenses
(which authorize emissions up to a maximum level) and pollution control
approvals (which authorize the installation of pollution control equipment and
devices). In the first regulatory phase, an application to a regulatory
authority (be it a local council or a specially constituted planning tribunal)
is filed. The relevant authority will either grant a conditional consent, an
unconditional consent, or deny the application based on the details of the
application and on any submissions or objections
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lodged by members of the public. If the developmental application is granted,
the detailed pollution control license may then be issued and such license may
regulate: emissions to atmosphere; emissions in waters; noise impacts
(including impacts from blasting); dust impacts; the generation, handling,
storage and transportation of waste; and requirements for
rehabilitation/restoration of land.
Each state and territory in Australia also has either a specific statute or
certain sections in other environmental and planning statutes relating to the
contamination of land and vesting powers in the various regulatory authorities
in respect of the remediation of contaminated land. Those statutes are based
on varying policies--the primary difference between the statutes is that in
certain states and territories, liability for remediation is placed upon the
occupier of land, regardless of the culpability of that occupier for the
contamination. In other states and territories, primary liability for
remediation is placed on the original polluter, whether or not the polluter
still occupies the land. If the original polluter cannot itself carry out the
remediation, then a number of the statutes contain provisions which enable
recovery of the costs of remediation from the polluter as a debt.
Many of the environmental planning statutes across the states and
territories contain "third party" appeal rights in relation, particularly, to
the first regulatory phase. This means that any party has a right to take
proceedings for a threatened or actual breach of the statute, without first
having to establish that any particular interest of that person (other than a
member of the public) stands to be affected by the threatened or actual
breach. As a result, this makes third party challenges to consents for the
carrying out of development relatively common.
Accordingly, in most states and territories throughout Australia, the
carrying out of mining activities involves a number of regulatory phases.
Following exploratory investigations pursuant to a mining license, the
activity proposed to be carried out must be the subject of an application for
the activity or development. This phase of the regulatory process, as noted
above, usually involves the preparation of extensive documents to constitute
the application, addressing all of the environmental impacts of the proposed
activity. It also generally involves extensive notification and consultation
with other relevant statutory authorities and members of the public. Once a
decision is made that the development can proceed (by the grant of a
development consent, permit or other approval) then a formal mining lease can
be obtained under the mining statute. In addition, operational licenses and
approvals can then be applied for and obtained in relation to pollution
control devices and emissions to the atmosphere, to waters and for noise. The
obtaining of licenses and approvals, during the operational phase, generally
does not involve any extensive notification or consultation with members of
the public, as most of these issues are anticipated to be resolved in the
first regulatory phase.
Occupational Health and Safety
The combined effect of various state and federal statutes requires an
employer to ensure that persons employed in a mine are safe from injury risks
by providing a safe working environment and systems of work; safe machinery,
equipment, plant and substances; and appropriate information, instruction,
training and supervision.
In recognition of the specialized nature of mining and mining activities,
specific occupational health and safety obligations have been mandated under
state legislation that deals specifically with the coal mining industry.
Company employers, owners, directors and managers, persons in control of work
places, mine managers, supervisors and employees are all subject to these
duties.
It is mandatory for an employer to have insurance coverage in respect of the
compensation of injured workers; similar schemes are in effect throughout
Australia which are of a no fault nature and which provide for benefits up to
a prescribed level. The specific benefits vary from jurisdiction to
jurisdiction, but generally include the payment of weekly compensation to an
incapacitated employee, together with payment of medical, hospital and related
expenses. The injured employee has a right to sue his or her employer for
further damages if a case in negligence can be established.
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MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
Set forth below are the names, ages as of March 1, 1998 and current
positions with the Company and its subsidiaries of the Company's executive
officers and Directors. The terms of the Directors of the Company will expire
upon the election and qualification of successors at the annual meetings of
stockholders.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ------------------------ --- --------------------------------------------------
<S> <C> <C>
Irl F. Engelhardt....... 51 Chairman, Chief Executive Officer and Director
Richard M. Whiting...... 43 President, Chief Operating Officer and Director
William E. James........ 52 Chief Executive Officer--Electricity & Natural Gas
and Chairman, Chief Executive Officer, Citizens
Power
Roger B. Walcott, Jr. .. 42 Executive Vice President
W. Howard Carson........ 47 Chief Commercial Officer
Robert D. Humphris...... 55 Managing Director--Australia
Mark Maisto............. 42 President, Chief Operating Officer, Citizens Power
Larry H. Fox............ 57 Vice President--Powder River Basin Operations
George J. Holway........ 47 Vice President, Chief Financial Officer
Christopher G. Farrand.. 56 Vice President, Corporate Affairs
Jeffery L. Klinger...... 50 Vice President, Legal Services and Secretary
Richard A. Navarre...... 37 Vice President, Sales & Marketing and President of
Peabody
COALSALES Company
Sharon K. Schergen...... 42 Vice President--Human Resources
Alan H. Washkowitz...... 57 Director
Henry E. Lentz.......... 53 Director
Roger H. Goodspeed...... 47 Director
</TABLE>
Irl F. Engelhardt served as President and Chief Executive Officer of Peabody
Group from 1990 to 1995 and Chairman and Chief Executive Officer of the
Company since 1993 and has been a Director of the Company since June 1998.
Since joining Peabody in 1979, he has held various officer level positions at
the Company in the executive, sales, business development and administrative
areas, including serving as Chairman of Peabody Resources Ltd. (Australia) and
Chairman of Citizens Power. Mr. Engelhardt also served as an executive
director of The Energy Group from February 1997 to May 1998, Chairman of
Cornerstone Construction & Materials, Inc. from September 1994 to May 1995 and
Chairman of Suburban Propane Company from May 1995 to February 1996. He also
served as a Director and Group Vice President of Hanson Industries from 1995
to 1996. Mr. Engelhardt is past chairman of the National Mining Association,
Chairman of the Coal Industry Advisory Board of the International Energy
Agency, Chairman of the Center for Energy and Economic Development and a
director of Mercantile Bank of St. Louis, N.A.
Richard M. Whiting was promoted to President and Chief Operating Officer of
the Company in January 1998 and has been a Director of the Company and a
member of the Management Committee since June 1998. He served as President of
Peabody COALSALES Company from June 1992 to January 1998. Since joining the
Company in 1976, Mr. Whiting has held a number of operations, sales and
engineering positions both at the corporate offices and at field locations.
From 1989 to 1990, Mr. Whiting served as Vice President of Engineering and
Operations Support. Mr. Whiting had previously served on the Transportation
Committee of the National Mining Association and is currently Chairman of the
National Mining Association's Safety and Health Committee.
William E. James was elected Chief Executive Officer--Electricity and
Natural Gas and Chairman, Chief Executive Officer, Citizen's Power in May
1998. He has also been Chief Executive Officer of Citizens since May 1997, and
was Chief Executive Officer from September 1994 of its predecessor, Citizens
Lehman Power L.L.C., a joint venture with Lehman Brothers. He also served on
the Executive Management Committee of Peabody. He was the co-founder of
Citizens Energy Corporation in 1979, and from 1987 to 1996, served as the
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Chairman and Chief Executive Officer of Citizens Corporation, a diversified
international energy holding company. Mr. James is currently a director of
Tempus Fugit Corporation and Apanage Corporation.
Roger B. Walcott, Jr. joined Peabody in June 1998 as Executive Vice
President and a member of Peabody's Management Committee. From 1981 to 1998,
he was a Senior Vice President & Director with The Boston Consulting Group
where he served a variety of clients in strategy and operational assignments.
He was also Chairman of The Boston Consulting Group's Human Resource
Capabilities Committee. Mr. Walcott holds an MBA with high distinction from
the Harvard Business School and a BA in economics from Duke University.
W. Howard Carson was named Chief Commercial Officer and a member of
Peabody's Management Committee in June 1998. Prior to that, he had been
President of Peabody Western since 1993. Previously, he has served as Vice
President of Finance and Administration for PCC from 1991 to 1993. He joined
the Company in 1979 from Arthur Andersen and has held numerous financial
positions including Vice President of Accounting and Vice President of
Corporate Planning for Peabody.
Robert D. Humphris has been Managing Director--Australia and a member of
Peabody's Management Committee since May 1998. Prior to that, he had been
Managing Director of Peabody Resources since April 1993. He has held
management positions at various mining companies in the United Kingdom and
Australia, including Managing Director of mining operations for Costain
Australia Limited, which was subsequently acquired by Hanson. He was actively
involved in Costain's real estate and construction activities in Australia.
Mr. Humphris is a past chairman of the New South Wales Minerals Council of the
Australian Coal Association. He is a member of the Coal Industry Advisory
Board of the International Energy Agency, the Business Council of Australia
and the State Minerals Advisory Council. He has been named to the managing
board of the Port of Newcastle in Australia.
Mark Maisto has been President and Chief Operating Officer of Citizens Power
since February 1998. He joined the Company in 1997 as Executive Vice President
of Citizens Power. Prior to joining Citizens Power he was a Senior Vice
President at Lehman Brothers. At Lehman Brothers, he specialized in corporate
and project finance working with electric utility companies. Prior to joining
Lehman Brothers in 1987, Mr. Maisto was employed at GE Capital, where he was
Director--Utility Finance. Mr. Maisto holds an M.B.A. from New York
University.
Larry H. Fox was named Vice President--Powder River Basin Operations in June
1998. Prior to that, he was President of Powder River since 1989. Mr. Fox
previously served as Vice President of Powder River and General Manager of
North Antelope Coal Company. Prior to that he also held several mine
operations positions within the Company, including Mine Superintendent at the
Big Sky mine in Montana and Director of Operations for the Rocky Mountain
Division. He joined the Company in 1962. Mr. Fox currently serves as President
of the Wyoming Mining Association and is a member of the Wyoming Coal
Operators Committee.
George J. Holway was appointed to his current position as Vice President and
Chief Financial Officer in June 1998. Prior to that, he had been Vice
President of Corporate Development with responsibilities for the Company's
mining business development and land functions. After first joining the
Company in 1980, Mr. Holway served in several financial positions at Peabody
Holding Company including Vice President and Controller of Peabody Holding
Company from 1990 to 1992. In 1992, he left the Company to become Chief
Financial Officer of Zeigler Coal Holding Company, a position he held until he
rejoined the Company in November 1996. Prior to joining the Company in 1980,
Mr. Holway was employed by Arthur Andersen & Co..
Christopher G. Farrand has been Vice President of Corporate Affairs of the
Company since June 1992. From April 1991 to June 1992, he served as President
of Peabody Development Company. Between 1981 and 1992 he worked as Vice
President of Government Relations for both PCC and Peabody Holding Company.
Mr. Farrand joined the Company as Director of Corporate Planning for PCC in
1978. Prior to working for the Company, Mr. Farrand held several positions in
the U.S. Department of Interior, including Deputy Under Secretary in 1977 and
1978 and Deputy Assistant Secretary from 1974 to 1976. He currently serves on
the board of directors of the National Coal Association and the Keystone
Energy Board.
94
<PAGE>
Jeffery L. Klinger was named as Vice President of Legal Services and
Secretary in May 1998. Prior to that, he had been Vice President, Secretary
and Chief Legal Officer since October 1990. From 1986 to October 1990, he
served as Eastern Regional Counsel for Peabody Holding Company and from 1982
to 1986 as Director of Legal and Public Affairs, Eastern Division of PCC and
joined the Company as Director of Legal and Public Affairs, Indiana Division
of PCC from 1978 to 1982. He is a past President of the Indiana Coal Council
and is currently a trustee and member of the Executive Committee of the
Eastern Mineral Law Foundation.
Richard A. Navarre was named as Vice President of Sales & Marketing in May
1998, and has also been President of Peabody COALSALES Company since January
of 1998. He previously served as President of Peabody Energy Solutions, Inc.
From 1996 to 1997, he was Vice President of Finance and prior to that served
as Vice President and Controller of the Company. He joined the Company in 1993
as Director of Financial Planning. Prior to joining Peabody, Mr. Navarre was
with KPMG Peat Marwick. Mr. Navarre is a member of the Trade and International
Affairs Committee and the Transportation Committee of the National Mining
Association.
Sharon K. Schergen has been Vice President--Human Resources since 1991 with
executive responsibility for employee development, benefits, compensation,
employee relations and affirmative action programs. She joined the Company in
1981 as Manager--Salary Administration and has held a series of employee
relations, compensation, and salaried benefits positions. Prior to joining
Peabody, Ms. Schergen, who earned degrees in social work and psychology and an
MBA, was a personnel representative for Ford Motor. Ms. Schergen is a member
of the National Mining Association's Human Resource Committee.
Alan H. Washkowitz became a Director in May 1998. He is also a Managing
Director of Lehman Brothers and the head of the firm's Merchant Banking Group,
responsible for the oversight of Lehman Brothers Merchant Banking Portfolio
Partnership L.P. Mr. Washkowitz joined Kuhn Loeb & Co. in 1968 and became a
general partner of Lehman Brothers in 1978 when Kuhn Loeb & Co. was acquired.
Prior to joining the Merchant Banking Group, Mr. Washkowitz headed Lehman
Brothers's Financial Restructuring Group. He is currently a director of
Illinois Central Corporation, L-3 Communications Corporation, K&F Industries,
Inc. and McBride plc. Mr. Washkowitz holds an M.B.A. from Harvard University
and a J.D. from Columbia University.
Henry E. Lentz became a Director in February 1998. He is also a Managing
Director of Lehman Brothers and a principal of the firm's Merchant Banking
Group. Mr. Lentz joined Lehman Brothers in 1971 and became a Managing Director
in 1976. In 1988, Mr. Lentz left Lehman Brothers to serve as Vice Chairman of
Wasserstein Perella Group, Inc. In 1993, he returned to Lehman Brothers as a
Managing Director and, prior to joining the Merchant Banking Group, served as
head of the firm's worldwide energy practice. Mr. Lentz is currently a
director of Rowan Companies, Inc. and Imperial Holly Corporation. Mr. Lentz
holds an M.B.A., with honors, from the Wharton School of the University of
Pennsylvania.
Roger H. Goodspeed became a Director in May 1998. He is also a Managing
Director of Lehman Brothers. He joined Lehman Brothers in 1974 and became a
Managing Director in 1984. During his tenure at Lehman Brothers, he has served
in management positions for several different groups. In 1994, he became
Chairman of Citizens Lehman Power, an electric power marketing joint venture
50% owned by Lehman Brothers until the joint venture was sold to The Energy
Group in 1997. Mr. Goodspeed remains a director of the ongoing entity,
Citizens Power. Mr. Goodspeed received an M.B.A. from the University of
California, Los Angeles.
COMPENSATION OF DIRECTORS
The directors of the Company do not receive compensation for their services
as directors.
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<PAGE>
COMPENSATION OF EXECUTIVE OFFICERS
The following table sets forth the compensation paid by the predecessors of
the Company for the account of each of the chief executive officer and the
five most highly compensated executive officers (the "Named Executive
Officers") for their services in all capacities to the predecessors of the
Company during the fiscal year ended March 31, 1998.
SUMMARY COMPENSATION TABLE FOR FISCAL 1998
SALARY AND INCENTIVE COMPENSATION
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG-TERM COMPENSATION
------------------------------ ---------------------------------------------
NAME AND PRINCIPAL RESTRICTED SECURITIES
POSITION DURING FISCAL OTHER ANNUAL STOCK UNDERLYING LTIP ALL OTHER
1998 SALARY BONUS COMPENSATION AWARD(S) OPTIONS/SARS PAYMENTS COMPENSATION
- ---------------------- -------- -------- ------------ ---------- ------------ -------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Irl F. Engelhardt....... $550,000 $412,500 $ -- $ -- $ -- $42,644 $ --
Chairman and Chief
Executive Officer
Peter B. Lilly.......... 333,463 247,715 -- -- -- 32,264 2,498,381(/1/)
William E. James........ 300,000 540,000 -- -- -- -- --
Chief Executive
Officer--Electric &
Natural Gas and Chief
Executive Officer of
Citizens Power
Robert D. 273,225 163,946 -- -- -- 45,304 --
Humphris(/2/)..........
Managing Director
Peabody Resources
Mark Maisto............. 250,000 300,000 -- -- -- -- --
President and Chief
Operating Officer of
Citizens Power
Richard M. Whiting...... 244,851 182,501 -- -- -- 12,326 --
President and Chief
Operating Officer
</TABLE>
- --------
(1) Mr. Lilly's last date of employment was January 19, 1998. All Other
Compensation of $2,498,381 relates to Mr. Lilly's departure from the
Company.
(2) Mr. Humphris' compensation was converted to U.S. dollars using an exchange
rate of $0.75 U.S. per Australian dollar. The exchange rate on March 26,
1998 was $0.6692 U.S. per Australian dollar (for adjustment purposes).
PENSION BENEFITS
The Company's Salaried Employees Retirement Plan (the "Pension Plan") is a
"defined benefit" plan. The Pension Plan provides a monthly annuity to
salaried employees when they retire. A salaried employee must have at least
five years of service to be vested in the Pension Plan. A full benefit is
available to a retiree at age 62. A retiree can begin receiving a benefit as
early as age 55; however, a 4% reduction factor applies for each year a
retiree receives a benefit prior to age 62.
An individual's retirement benefit under the Pension Plan is equal to the
sum of (A) 1.112% of the average monthly earnings over 60 consecutive months
up to the "covered compensation limit" multiplied by the employee's years of
service (not to exceed 35 years) and (B) 1.5% of the average monthly earnings
over 60 consecutive months over the "covered compensation limit" multiplied by
the employee's years of service (not to exceed 35 years).
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<PAGE>
The estimated annual benefits payable upon retirement at age 62, the normal
retirement age, for the Named Executive Officers are as follows:
<TABLE>
<S> <C>
Irl. F. Engelhardt.................................................. $314,460
Richard M. Whiting.................................................. 152,817
</TABLE>
Messrs. James, Maisto and Humphris are not eligible for the Pension Plan.
The Company has three supplemental retirement plans, which provide pension
benefits to executives whose pay exceeds legislative limits for qualified
pension plans.
BENEFIT PLANS
The Company intends to establish or maintain benefit plans for its
employees, which will provide substantially similar benefits to those provided
by The Energy Group and its affiliates and subsidiaries for the Company's
employees prior to the Acquisition.
MANAGEMENT INCENTIVE COMPENSATION PLANS
The Company expects to establish an incentive compensation plan that will
provide a bonus to selected employees based on the participant's base salary,
target level, individual performance rating and organizational performance
rating.
STOCK OPTION PLAN
The Company intends to adopt an option plan for key employees of the
Company, pursuant to which the Company expects to grant options to purchase
shares of Common Stock (inclusive of the grants under the Employment
Agreements, see below under "Employment Agreements"). It is expected that the
options will have terms as discussed below under "Employment Agreements."
EMPLOYMENT AGREEMENTS
The Company expects to enter into employment agreements (the "Employment
Agreements") with Mr. Engelhardt, the Chairman and Chief Executive Officer
(the "CEO"), Messrs. James, Maisto, Whiting, Humphris and certain other key
executive officers (collectively, the "Executives"). The CEO's Employment
Agreement will provide for an initial term of three years and the other
Executives' Employment Agreements will provide for initial terms of two years,
each of which shall extend thereafter on a day-to-day basis such that the
CEO's Employment Agreement will continually have a three year term and the
other Executives, subsequent to their initial one year of employment, will
continually have a one-year term. Upon a termination without cause or
resignation for good reason, the Executive will be entitled to the following
benefits during the Continuation Period (as defined below): (i) base salary,
(ii) bonus actually paid in the year prior to such termination, except that,
instead of such actual bonus amount, the CEO shall receive an amount equal to
100% of his final base salary in each of the three years following such
termination, (iii) a one-time prorated bonus for the year of termination
(based on actual performance multiplied by the percentage of the 12-month
period such Executive was employed) and (iv) continuation of qualified and
nonqualified pension, life insurance, medical, hospitalization and other
benefits; provided, however, that the Company shall not be obligated to
provide any benefits under tax qualified plans which are not permitted by the
terms of each such plan or by applicable law or could jeopardize the plan's
tax status; provided, further, that any such coverage shall terminate to the
extent that Executive is offered or obtains comparable coverage from any other
employer. The "Continuation Period" shall be (i) for the CEO, a period of
three years and (ii) for the other Executives, the balance of the initial two-
year term if termination occurs during the first year of such initial term, or
for a period of one year thereafter. The Employment Agreements will provide
for confidentiality during employment and at all times thereafter. It is also
expected that the Employment Agreements will include a noncompetition and
nonsolicitation covenant which will be effective during the employment term
and for one year thereafter.
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<PAGE>
The Executives acquired, in the aggregate, 3% of the Company's initial
fully-diluted equity (the "Class B Shares"), issued as Class B Common Stock
(as defined) in connection with the Acquisition. With respect to the Class B
Shares, the Company shall provide a full recourse loan for the amount of the
tax liability to each Executive, and to certain of these Executives, an
additional full recourse loan for the amount of the value of the stock, with a
five-year principal balloon payment which accelerates to the date which is six
months following any termination of employment or disposition of the stock,
with interest payable throughout the term of the loan at the applicable
federal rate.
The Company expects to grant the Executives and other employees options (the
"Options") exercisable for common stock to purchase an aggregate of 7% of the
Company's initial fully-diluted equity; 50% of the Options shall be granted as
"Time Options" in the form of Incentive Stock Options (as defined in Section
422 of the Code), to the extent permitted, and 50% of the Options shall be
granted in the form of nonqualified stock options as "Performance Options."
Time Options shall become exercisable with respect to 20% of the shares
subject to such Options on each of the first five anniversaries of the date of
the closing of the transaction if the Executive's employment continues through
and including such date, subject to acceleration upon (i) death, (ii)
disability (iii) a Change of Control (as defined) or (iv) a Recapitalization
Event (as defined). Performance Options shall become exercisable at the end of
nine and one-half years, whether or not the applicable performance targets are
achieved, but become exercisable earlier with respect to up to 20% of the
shares subject to the Performance Options, on each of the first five
anniversaries of the date of the closing of the Transactions, to the extent
certain performance targets, as determined by the Board of Directors and based
on net debt and EBITDA, are met or exceeded. Performance Options accelerate
upon (i) a Change of Control, (ii) a Recapitalization Event or (iii) an
initial public offering. "Change of Control", for the purposes of this
section, shall mean an acquisition of all or substantially all of the direct
and indirect assets of the Company and its subsidiaries (by merger,
consolidation, Recapitalization Event, stock or asset sale or otherwise),
whereby immediately following any such transaction (i) Lehman Merchant Banking
owns less than 50% of the Company's outstanding voting securities that Lehman
Merchant Banking owned (excluding the sell down of approximately $75 million
anticipated to occur after the closing of the Acquisition) after the closing
of the Acquisition or (ii) any person individually owns more of the Company's
then outstanding voting securities entitled to vote generally than Lehman
Merchant Banking. "Recapitalization Event" shall mean a recapitalization,
reorganization, stock dividend or other special corporate restructuring which
results in an extraordinary distribution to the stockholders of cash and/or
securities through the use of leveraging or otherwise but which does not
result in a Change of Control.
The Company also expects to grant the Executives performance-based options
(the "Superperformance Options") exercisable for common stock to purchase an
aggregate of 7% of the Company's initial fully-diluted equity.
Superperformance Options shall vest upon the earlier of (i) achievement of
certain financial performance targets and the earliest of completion of (x) an
initial public offering, (y) a Change of Control or (z) a Recapitalization
Event; and (ii) nine and one-half years from the date of grant. Vesting of
Superperformance Options shall accelerate as follows: (i) upon completion of
an initial public offering during the first 36 months following the closing of
the Acquisition, at least 2.5% of the Superperformance Options shall vest and
the balance shall vest in accordance with the achievement of certain financial
performance targets, or (ii) upon a Change of Control or a Recapitalization
Event during the first 36 months following the closing of the Acquisition, at
least 5.0% of the Superperformance Options shall vest.
The Options and the Superperformance Options will have an exercise price
equal to the price per share of the Class A Common Stock paid by Lehman
Merchant Banking.
The Options and the Superperformance Options shall have a 10-year term;
provided, however, that exercisable Options shall expire earlier upon
termination of employment as follows: (i) upon termination for cause or a
resignation without good reason, immediately upon such termination; (ii) upon
termination without cause, resignation for good reason, death, disability or
retirement, one year after termination of employment. Unexercisable Options
and Superperformance Options will terminate upon termination of employment,
unless acceleration in connection with such termination is explicitly provided
for.
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<PAGE>
Upon a Change of Control, the Board of Directors may terminate the Options
and Superperformance Options, so long as the Executives are cashed out at the
Change of Control price or are permitted to exercise their Options and
Superperformance Options prior to the Change of Control (except as otherwise
provided).
STOCKHOLDERS AGREEMENTS
The Company intends to enter into stockholders agreements with employees of
the Company who own shares, or have options to purchase shares, of Common
Stock. Such stockholders agreements are expected to contain, among other
things, puts/calls, drag-along, tag-along, voting, corporate governance and
registration rights provisions.
99
<PAGE>
OWNERSHIP OF CAPITAL STOCK
The following table sets forth certain information concerning ownership of
the capital stock as of July 8, 1998: (i) persons who beneficially own more
than 5% of the outstanding shares of capital stock; (ii) each person who is a
director of the Company; (iii) each person who is a Named Executive Officer;
and (iv) all directors and executive officers of the Company as a group. The
Company's capital stock consists of its Class A common stock (the "Class A
Common Stock"), its Class B Common Stock, ("Class B Common Stock" and,
together with the Class A Common Stock, the "Common Stock") and its Non-
Convertible, Exchangeable Preferred Stock (the "Preferred Stock"). Class B
Common Stock has voting rights and other attributes similar to Class A Common
Stock (except that Class A Common Stock will have a liquidation preference)
and will convert to Class A Common Stock upon consummation of a Change of
Control, an initial public offering or a Recapitalization Event (as defined)
or, in any event, after nine years. Of the $480.0 million equity contribution
made in connection with the Acquisition, $100.0 million was in the form of
Preferred Stock. The Preferred Stock bears the same voting powers, dividend
rights and other rights as, and votes as a single class with, the Common
Stock, except for the following: (i) upon the occurrence of any merger,
consolidation, sale of all or substantially all assets, liquidation,
dissolution or winding up of the Company, the holders of the Preferred Stock
will receive a preferential distribution of available assets equal to the cost
per share before the holders of the Common Stock receive any distributions
(following which the holders of Common Stock will receive a similar
preferential distribution of any remaining available assets equal to the same
cost per share, and thereafter the shares of Common Stock and Preferred Stock
will receive equal distributions per share of any remaining available assets),
(ii) the Company may, at any time at its discretion, exchange all or part of
the shares of Preferred Stock for an equal number of shares of Common Stock
and (iii) the Company may, at its discretion and only for the first six months
after the issuance of shares of the Preferred Stock, redeem all or part of the
shares of Preferred Stock for an amount equal to the cost per share.
<TABLE>
<CAPTION>
NUMBER OF SHARES
BENEFICIALLY OWNED
-------------------------------
CLASS A CLASS B PERCENTAGE
COMMON COMMON PREFERRED OF STOCK
NAME AND ADDRESS OF BENEFICIAL OWNER STOCK STOCK STOCK OUTSTANDING
- ------------------------------------ ---------- ------- --------- -----------
<S> <C> <C> <C> <C>
Lehman Brothers Merchant Banking
Partners II L.P., LB I Group
Inc. and their affiliated 19,000,000 -- 5,000,000 97%
co-investors....................
c/o Lehman Brothers Holdings
Inc.
3 World Financial Center
200 Vesey Street
New York, NY 10285
Named Executive Officers......... -- -- (/1/) -- (/1/)
All executive officers and direc-
tors as a group
(16 persons).................... -- -- (/1/) -- -- (/1/)
---------- --- --------- ---
19,000,000 -- (/1/) 5,000,000 97%(/1/)
========== === ========= ===
</TABLE>
- --------
(1) Certain employees of the Company will acquire, in the aggregate, 3% of the
Company's initial fully-diluted capital stock in the form of 742,268
shares of Class B Common Stock. As of the date hereof, the allocation of
the Class B Shares among such employees has not been approved by the Board
of Directors.
100
<PAGE>
THE ACQUISITION
THE ACQUISITION
The statements made under this heading relating to the Acquisition are
summaries of the agreements described therein, do not purport to be complete
and are qualified in their entirety by reference to such agreements.
THE PURCHASE AGREEMENT
The Company and The Energy Group entered into the Purchase Agreement dated
March 2, 1998. The Purchase Agreement provides, among other things, for the
purchase by the Company from The Energy Group of the Acquired Companies,
consisting of the equity interests described below. As consideration for such
interests, the Company paid $2,065.0 million (the "Purchase Price"), subject
to further adjustment as described below, to The Energy Group. Pursuant to the
Purchase Agreement, upon the consummation of the purchase (the "Closing"), the
Company acquired: (i) all of the common stock of Peabody Holding Company, (ii)
all of the common stock of Gold Fields, (iii) all of the membership interests
of Citizens Power, (iv) the 1% interests in CL Hartford, L.L.C., a Delaware
limited liability company, and Citizens Power Sales, a Delaware general
partnership ("CP Sales"), both subsidiaries of Citizens Power, (v) all of the
shares of Darex Capital Inc., a company incorporated in the Republic of
Panama, and (vi) all of the ordinary shares of Peabody Australia Limited,
which together with Darex Capital Inc. owns Peabody Resources.
The Acquisition was conditioned upon the tender offer by TU to purchase all
the outstanding common shares of The Energy Group (the "TU Offer") becoming or
being declared unconditional in all respects (see "The Participation
Agreement" below) and not at that time being publicly opposed by the board of
directors of The Energy Group. For additional information regarding the
relationship between the Acquisition and the TU Offer, as well as among Lehman
Merchant Banking, the Company and TU, see "The Participation Agreement" below.
The Acquisition was further conditioned upon satisfaction or waiver of the
following conditions: (i) the consent to the Acquisition by the Australian
Foreign Investment Review Board ("FIRB"), (ii) the issuance of an approval
order by FERC and (iii) the absence of any statute, rule, regulation, court or
executive order, decree, or other order of any kind that would prohibit,
restrain or restrict the Acquisition (all aforementioned conditions, the
"Purchase Conditions"). FIRB provided its consent to the Acquisition on
April 1, 1998 and FERC provided its consent to the Acquisition on April 24,
1998. On May 19, 1998, the TU's tender offer was declared unconditional and
the Acquisition was consummated.
The Purchase Agreement contains only limited representations from each party
relating to corporate authorization, due execution and lack of conflict with
organizational documents, material agreements and laws. In addition, The
Energy Group has made further representations regarding title to equity
interests in the Acquired Companies and capitalization of the Acquired
Companies and their subsidiaries (collectively, the "Acquired Group"). See
"Risk Factors--Risks Relating to the Company--Limited Rights of Recovery
Against Sellers."
THE PARTICIPATION AGREEMENT
Lehman Merchant Banking and TU entered into the Participation Agreement,
dated March 1, 1998 (the "Participation Agreement"), which, among other
things, governs the basis on which TU made the TU Offer and the Company agreed
to consummate the Acquisition, and also governs the relationship between The
Energy Group and the Acquired Group after the Acquisition. Pursuant to the
terms of the Participation Agreement, Lehman Merchant Banking agreed to cause
the Company to consummate the Acquisition upon satisfaction of the Purchase
Conditions according to the terms of the Purchase Agreement. In addition, at
the Closing, Lehman Merchant Banking caused the Company to pay the Citizens
Power Obligations and to assume all outstanding indebtedness of the Acquired
Group, provided that non-recourse debt will remain non-recourse. TU also
agreed to cause The Energy Group to provide credit support for certain of
Citizens Power's asset restructuring debt in order to make effective consents
to the Acquisition by Citizens Power's note holders.
101
<PAGE>
Lehman Merchant Banking and TU further agreed that the Purchase Price would
be adjusted (i) to the extent the total assets less current liabilities and
long-term debt of the Acquired Group shown on an audited balance sheet as of
March 31, 1998 differ from agreed-upon projections and (ii) to the extent of
any dividends or distributions from, or contributions to, the Acquired Group
after March 31, 1998 and before the Closing. The Participation Agreement
contains a Company representation and warranty to TU that, for U.S. federal
income taxation purposes, The Energy Group's adjusted tax basis in the shares
of Peabody Holding Company as of January 31, 1998 was equal to the portion of
the Purchase Price allocated to such shares (up to $1.8 billion). Following
the Closing, the Company will cause the rest of the Acquired Group to assume
such warranty.
TU agreed not to revise or amend the terms and conditions of the TU Offer in
a manner that could reasonably be expected to materially and adversely affect
Lehman Merchant Banking, the Acquired Group, the Acquisition or the Financings
and not to waive any conditions of the TU Offer without Lehman Merchant
Banking's consent where Lehman Merchant Banking demonstrates that the matter
or circumstance giving rise to the right to invoke the condition arose after
the date of the Participation Agreement, could reasonably be expected to
materially and adversely affect the Acquired Group or the purchase of the
equity of the Acquired Companies (including the financing thereof) and is of
material significance in the context of the TU Offer. TU has also agreed not
to extend the TU Offer to an expiration date beyond four months from the
announcement date of the TU Offer.
The Company will indemnify TU and its affiliates and subsidiaries (including
The Energy Group and its subsidiaries) against all past, present and future
claims, suits or liabilities arising from or out of the Acquired Group,
including environmental and employee benefits claims or liabilities against
PII and Peabody Global Investment, Inc. ("PGII," collectively with PII, the
former holding companies for the U.S. Peabody coal business) arising from
events occurring prior to the Closing. Similarly, TU has agreed to indemnify
Lehman Merchant Banking, the Company and their affiliates and subsidiaries
against all past, present and future claims, suits or liabilities relating to
The Energy Group, except for those relating to the Acquired Group.
The parties have agreed that the Acquired Group will not be liable for any
U.S., Australian or United Kingdom tax liability (including subdivisions
thereof) of the portion of The Energy Group purchased by TU, and The Energy
Group will similarly not be liable for such tax liability of the Acquired
Group. The parties have further agreed that TU and The Energy Group, on the
one hand and Lehman Merchant Banking, on the other hand, will not be liable to
the other for any tax imposed by any jurisdiction as a result of the
allocation of the Purchase Price as between the U.S. and Australian tax
jurisdictions. In conjunction with the signing of the Participation Agreement,
the parties also agreed upon a Tax Allocation Agreement that was entered into
among PII, the Company and certain of their affiliates (collectively, the "PII
Group") at the Closing and, among other things, allocates the tax liabilities
among the entities in the PII Group on the basis of the taxes that would have
been incurred if they were stand-alone entities.
102
<PAGE>
RELATED PARTY TRANSACTIONS
Messrs. Washkowitz, Lentz and Goodspeed, directors of the Company, are
investors in Lehman Merchant Banking. Lehman Merchant Banking owns a
substantial majority of the Company's outstanding shares of capital stock
after the Acquisition. Lehman Brothers and its affiliates received aggregate
fees of approximately $90 million in cash for advising on the Acquisition and
arranging the financing therefor and were reimbursed for its expenses in
connection therewith. In addition, Lehman Brothers received customary fees in
connection with advising on and arranging financing for the purchase of The
Energy Group by Texas Utilities. From time to time in the future, Lehman
Merchant Banking or its affiliates may receive customary fees for services
rendered to the Company in connection with financings, divestitures,
acquisitions and certain other transactions. See "Management--Directors and
Executive Officers of the Company" and "Ownership of Capital Stock."
Lehman Brothers and LCPI, the Syndication Agent, Arranger and Administrative
Agent for the Senior Credit Facilities, are both affiliates of Lehman Merchant
Banking, and both received customary fees for their services in connection
with the Financings. See "Description of Certain Indebtedness" and "Plan of
Distribution."
The Citizens Power Obligations relate to the continuing payment obligations
resulting from the May 19, 1997 acquisition of Citizens Power. The Energy
Group purchased Citizens Power from Lehman Brothers Holdings Inc. ("LBHI")
(which owned 50%), Citizens Energy Corporation (14%), Mr. James (16%) and
certain employees of Citizens Power (20%) (collectively, the "Selling
Shareholders") for $120 million, which was divided into two parts: (i) an
upfront cash payment of $20 million; and (ii) the Citizens Power Obligations,
comprised of: (a) a payment based upon the net asset value of Citizens Power
("NAV") as of the date of sale (subject to certain adjustments based upon
events between the date of sale and June 30, 1997) up to a maximum of $30
million; and (b) NAV increase payments with respect to the fiscal years ending
March 31, 2000, 2001 and 2002, which when combined with initial NAV payment
would be no greater than $100 million. The agreement among The Energy Group
and the Selling Shareholders protected the Selling Shareholders in the event
of any material change, including a change of control at The Energy Group,
which would adversely affect Citizens Power's ability to attain the expected
NAV increases. As of January 1, 1998, due to the high likelihood of a change
of control of The Energy Group, Peabody guaranteed the selling shareholders
$65 million of the future payments as follows: (i) $30 million for the initial
NAV payment; and (ii) $35 million for the NAV increase payments. As a result
of the Transactions, the Company has agreed to indemnify The Energy Group in
respect of the Citizens Power Obligations. The Company negotiated to pay the
Selling Shareholders $92.0 million in consideration of the Citizens Power
Obligations. Mr. Goodspeed, a director of the Company, and certain employees
of Citizens Power received a portion of the proceeds received by LBHI. See
"Description of Certain Indebtedness."
LBHI, an affiliate of Lehman Brothers, agreed to provide a guarantee
facility (the "Guaranty Facility") to trading counterparties of CP Sales, a
trading subsidiary of Citizens Power, for trades initiated after the
Acquisition. The Guaranty Facility will be available for 364 days after the
date of the Acquisition. LBHI will be paid a minimum fee to establish the
Guaranty Facility and will be reimbursed for the legal and out-of-pocket costs
associated with establishing and documenting the Guaranty Facility. An
additional fee will be calculated based on the trading volumes of CP Sales
and, to the extent such volume-based fee exceeds the minimum, such additional
amount will be paid to LBHI. The volume based fee will increase should CP
Sales continue to use the Guaranty Facility after six months. LBHI will
benefit from cash collateral relative to its exposure on the trading book and
financial covenants on Citizens Power and CP Sales, any violation of which
would cause the Guaranty Facility to terminate.
TRANSACTIONS WITH AFFILIATES
COALSALES purchased 126,601 tons of coal from Black Beauty for $3.0 million
in fiscal 1998 and continues to purchase coal from Black Beauty in the
ordinary course of business. Certain executive officers of
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the Company, which is a non-controlling general partner of Black Beauty, serve
on the partnership committee of Black Beauty. Partnership committee members of
Black Beauty do not receive a fee for their services.
STOCKHOLDERS AGREEMENTS
The Company will enter into stockholders agreements which are expected to
contain, among other things, drag-along, tag-along, voting, corporate
governance and registration rights provisions.
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DESCRIPTION OF CERTAIN INDEBTEDNESS
The following are summaries of the material terms and conditions of the
Senior Credit Facilities and certain indebtedness and do not purport to be
complete and are qualified in their entirety by reference to the Senior Credit
Facilities and the other agreements summarized below.
THE SENIOR CREDIT FACILITIES
The Senior Credit Facilities are provided by a syndicate of banks and other
financial institutions led by LCPI, as Arranger and Syndication Agent and by
the First National Bank of Chicago as Administrative Agent. The Senior Credit
Facilities provide for $920.0 million of term loans and for $480.0 million in
revolving credit loans. The Revolving Credit Facility will includes borrowing
capacity available for letters of credit and for borrowings on same-day notice
(the "Swingline Loans"). The Term Loan Facility is comprised of a $270.0
million Tranche A Term Loan, which has a maturity of six years and a $650.0
million Tranche B Term Loan, which has a maturity of eight years. The
Revolving Credit Facility commitment terminates six years after the date of
initial funding of the Senior Credit Facilities.
All borrowings under the Senior Credit Facilities bear interest, at the
Company's option, at either: (A) a "base rate" equal to, for any day, the
higher of: (a) 0.50% per annum above the latest Federal Funds Rate; and (b)
the rate of interest in effect for such day as publicly announced from time to
time by the Administrative Agent under the Senior Credit Facilities, as such
bank's "corporate base rate," "reference rate," "prime rate" or the
substantial equivalent thereof plus (i) in the case of the Tranche A Term
Loan, the Revolving Credit Facility and the Swingline Loans, a debt to EBITDA-
dependent rate ranging from 1.250% to 0.500% per annum or (ii) in the case of
the Tranche B Term Loan, a debt to EBITDA-dependent rate ranging from 1.375%
to 1.000% per annum or (B) a "LIBOR rate" equal to, for any Interest Period
(as in the Senior Credit Facilities), with respect to LIBOR Loans comprising
part of the same borrowing, the London Interbank Offered Rate of interest per
annum for such Interest Period as determined by the Administrative Agent, plus
(i) in the case of the Tranche A Term Loan and the Revolving Credit Facility,
a debt to EBITDA-dependent rate ranging from 2.250% to 1.500% per annum or
(ii) in the case of the Tranche B Term Loan, a debt to EBITDA-dependent rate
ranging from 2.375% to 2.000% per annum.
The Company must pay a commitment fee calculated at a debt to EBITDA-
dependent rate ranging from .500% to .375% per annum of the available unused
commitment under the Revolving Credit Facility, in each case in effect on each
day. Such fees are payable quarterly in arrears and upon termination of the
Revolving Credit Facility.
The Company must pay a letter of credit fee calculated at a debt to EBITDA-
dependent rate ranging from 2.250% to 1.500% per annum of the face amount of
each letter of credit and a fronting fee calculated at a rate equal to 0.250%
per annum of the aggregate face amount of each letter of credit. Such fees are
payable quarterly in arrears and upon the termination of the Revolving Credit
Facility. In addition, the Company is required to pay customary transaction
charges in connection with any letters of credit.
The foregoing debt to EBITDA-dependent rates range from the high rate
specified if the ratio of debt to EBITDA is greater than 4.75 to 1.0 to the
low rate specified if such ratio is less than 3.75 to 1.0.
The Term Loans are subject to the following amortization schedule:
<TABLE>
<CAPTION>
AMORTIZATION TERM LOAN A TERM LOAN B
------------ ----------- -----------
(IN MILLIONS)
<S> <C> <C>
Year 1 $ 10.0 $ 6.5
Year 2 15.0 6.5
Year 3 20.0 6.5
Year 4 50.0 6.5
Year 5 75.0 6.5
Year 6 100.0 6.5
Year 7 -- 100.0
Year 8 -- 511.0
------ ------
$270.0 $650.0
====== ======
</TABLE>
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Borrowings under the Senior Credit Facilities will be subject to mandatory
prepayment (i) with the net proceeds of any incurrence of indebtedness (other
than indebtedness permitted therein), (ii) with the proceeds of certain asset
sales and (iii) on an annual basis with (A) 75% of the Company's excess cash
flow (as defined in the Senior Credit Facilities) if the ratio of the
Company's debt to EBITDA is greater than 4.0 to 1.0 or (B) 50% of such excess
cash flow if such ratio is less than or equal to 4.0 to 1.0.
The Company's obligations under the Senior Credit Facilities are secured by
a lien on certain of the tangible and intangible assets of the Company and its
direct and indirect domestic subsidiaries (other than Citizens Power and its
subsidiaries), including: (i) a pledge by the Company and its direct and
indirect domestic subsidiaries (other than Citizens Power and its
subsidiaries) of all of the capital stock of their respective domestic
subsidiaries and 65% of the capital stock of the Company's first-tier foreign
subsidiaries, (ii) certain coal reserves of the Company and its direct and
indirect domestic subsidiaries, (iii) certain CSAs and other material
contracts to which the Company or any of its direct or indirect domestic
subsidiaries (other than Citizens Power and its subsidiaries) is a party and
(iv) substantially all other personal property of the Company. In addition,
indebtedness under the Senior Credit Facilities will be guaranteed by the
Company's direct and indirect domestic subsidiaries (other than Citizens Power
and its subsidiaries). See "Description of the Senior Subordinated Notes--
Subordination" and "Risk Factors--Risks Relating to the Notes--Ranking."
The Senior Credit Facilities contain customary covenants and restrictions on
the Company's ability to engage in certain activities. In addition, the Senior
Credit Facilities provide that the Company must meet or exceed certain
interest coverage ratios and must not exceed a leverage ratio. The Senior
Credit Facilities also include customary events of default.
5% SUBORDINATED NOTE
A note (the "5% Subordinated Note") which matures on March 1, 2007 is held
by Prudential Insurance Company of America. On a pro forma basis, as of March
31, 1998, $200.5 million of aggregate principal amount would have been
outstanding under the note. The note is a subordinated and unsecured
obligation of the Company's subsidiary, Peabody Holding Company. The terms of
the note permit the merger, consolidation or the sale of assets of Peabody
Holding Company, as long as the successor corporation following the merger or
consolidation (if Peabody Holding Company does not survive) expressly assumes
payment of principal and interest on and performance of the covenants and
conditions of the note.
CITIZENS POWER OBLIGATIONS
On May 19, 1997, The Energy Group purchased Citizens Power from LBHI (which
owned 50%), Citizens Energy Corporation (14%), Mr. James (16%) and certain
employees of Citizens Power (20%) for $120 million, which was divided into two
parts: (i) an upfront cash payment of $20 million; and (ii) future payments
(the "Citizens Power Obligations"), comprised of: (a) a NAV payment based upon
the NAV as of the date of sale (subject to certain adjustments based upon
events between the date of sale and June 30, 1997) up to a maximum of $30
million; and (b) NAV increase payments with respect to the fiscal years ending
March 31, 2000, 2001 and 2002, which when combined with the initial NAV
payment would be no greater than $100 million. The agreement among The Energy
Group and the Selling Shareholders protected the Selling Shareholders in the
event of any material change, including a change of control at The Energy
Group, which would adversely affect Citizens Power's ability to attain the
expected NAV increases. As of January 1, 1998, due to the high likelihood of a
change of control of The Energy Group, Peabody guaranteed the Selling
Shareholders $65 million of the future payments as follows: (i) $30 million
for the initial NAV payment; and (ii) $35 million for the NAV increase
payments. As a result of the Transactions, the Company has agreed to indemnify
The Energy Group in respect of the Citizens Power Obligations. The Company has
negotiated to pay the Selling Shareholders $92.0 million in consideration of
the Citizens Power Obligations. Mr. Goodspeed, who will be a director of the
Company after the Acquisition, and certain employees of Citizens Power will
receive a portion of the proceeds received by LBHI.
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CITIZENS POWER NON-RECOURSE INDEBTEDNESS
Citizens Power issued non-recourse notes to finance four asset restructuring
transactions. Four special purpose limited liability companies were formed to
carry out these transactions. Notes issued in connection with these
transactions had an aggregate principal amount outstanding of $293.9 million
at March 31, 1998.
SURETY BONDS
Federal and state laws require Surety Bonds to secure the Company's
obligations to reclaim lands disturbed for mining, to pay federal and state
workers' compensation and to satisfy other miscellaneous obligations. The
amount of these bonds varies constantly, depending upon the amount of acreage
disturbed and the degree to which each property has been reclaimed. Under
federal law, partial bond release is provided as mined lands (i) are
backfilled and graded to approximate original contour, (ii) are re-vegetated
and (iii) achieve pre-mining vegetative productivity levels on a sustained
basis for a period of five to ten years.
As of March 31, 1997, the Company had outstanding surety bonds with third
parties for post-mining reclamation totaling $372.4 million, with an
additional $277.3 million in self-bonding obligations. Surety bonds valued at
an additional $123.3 million are in place for federal and state workers'
compensation obligations and other miscellaneous obligations.
PEABODY RESOURCES PERFORMANCE BONDS
Peabody Finance Limited, a subsidiary of Peabody Resources, has A$80.0
million outstanding in performance bonds (the "Performance Bonds") associated
with the mining operations in Australia. Each of the Performance Bonds is
guaranteed by The Energy Group. In each case, the guarantee is an
unconditional and irrevocable guarantee of Peabody Finance Limited's
obligations under the relevant bond facility, to be released only when all
amounts under the facility have been repaid or all outstanding Performance
Bonds issued under the facility have expired and the facility itself has
expired or been cancelled. The Company expects that these guarantees will be
replaced by letters of credit under the Senior Credit Facilities.
PEABODY RESOURCES DEBT
Peabody Resources has incurred obligations in connection with its joint
venture ownership interests in the Narama mine, the Warkworth mine and the
Bengalla mine. Peabody Resources has incurred debt in connection with a
construction loan for the ongoing development of the new Bengalla mine and is
obligated for its pro rata share of loans and operating leases in connection
with the expansion and operation of the Warkworth mine. The total joint
venture debt attributable to Peabody Resources was $19.5 million as of March
31, 1998.
Peabody Resources also has a $131.5 million (A$200 million) standby
commercial paper facility under which it borrows short-term funds for working
capital purposes. The facility is administered by a local Australian bank and
is supported by a guarantee from The Energy Group. As of March 31, 1998,
borrowings under the facility totaled approximately $10.5 million (A$15
million), which matures on May 8, 1998. In April 1998, Peabody Resources drew
$32.3 million (A$50 million), which matures on July 28, 1998, in connection
with a distribution to The Energy Group. The average interest rate on existing
borrowings is approximately 4.95%. Upon final maturity of borrowings existing
on the closing of the Transactions, it is expected that the facility size will
be reduced and that the guarantee will be replaced with a letter of credit
issued under the Senior Credit Facilities.
Peabody Resources' joint venture indebtedness and commercial paper
obligations are collectively referred to as "Peabody Resources Debt."
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THE SENIOR EXCHANGE OFFER
GENERAL
The Company hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Senior Letter of Transmittal
(which together constitute the Senior Exchange Offer), to exchange up to $400
million aggregate principal amount of Senior Exchange Notes for a like
aggregate principal amount of Old Senior Notes properly tendered on or prior
to the Senior Expiration Date and not withdrawn as permitted pursuant to the
procedures described below. The Senior Exchange Offer is being made with
respect to all of the Old Senior Notes.
As of the date of this Prospectus, $400 million aggregate principal amount
of the Old Senior Notes is outstanding. This Prospectus, together with the
Senior Letter of Transmittal, is first being sent on or about , 1998,
to all holders of Old Senior Notes known to the Company. The Company's
obligation to accept Old Senior Notes for exchange pursuant to the Senior
Exchange Offer is subject to certain conditions set forth under "--Certain
Conditions to the Senior Exchange Offer" below. The Company currently expects
that each of the conditions will be satisfied and that no waivers will be
necessary.
PURPOSE OF THE SENIOR EXCHANGE OFFER
The Old Senior Notes were issued on May 18, 1998 in a transaction exempt
from the registration requirements of the Securities Act. Accordingly, the Old
Senior Notes may not be reoffered, resold, or otherwise transferred unless so
registered or unless an applicable exemption from the registration and
prospectus delivery requirements of the Securities Act is available.
In connection with the issuance and sale of the Old Senior Notes, the
Company entered into the Senior Registration Rights Agreement, which requires
the Company to file with the Commission a registration statement relating to
the Senior Exchange Offer not later than 90 days after the date of issuance of
the Old Senior Notes, and to use its best efforts to cause the registration
statement relating to the Senior Exchange Offer to become effective under the
Securities Act not later than 180 days after the date of issuance of the Old
Senior Notes and the Senior Exchange Offer to be consummated not later than 30
days after the date of the effectiveness of the Registration Statement (or use
its best efforts to cause to become effective by the 180th calendar day after
the date of issuance a shelf registration statement with respect to resales of
the Old Senior Notes). A copy of the Senior Registration Rights Agreement has
been filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
The Senior Exchange Offer is being made by the Company to satisfy its
obligations with respect to the Senior Registration Rights Agreement. The term
"holder," with respect to the Senior Exchange Offer, means any person in whose
name Old Senior Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
holder, or any person whose Old Senior Notes are held of record by The
Depository Trust Company. Other than pursuant to the Senior Registration
Rights Agreement, the Company is not required to file any registration
statement to register any outstanding Old Senior Notes. Holders of Old Senior
Notes who do not tender their Old Senior Notes or whose Old Senior Notes are
tendered but not accepted would have to rely on exemptions to registration
requirements under the securities laws, including the Securities Act, if they
wish to sell their Old Senior Notes.
The Company is making the Senior Exchange Offer in reliance on the position
of the staff of the Commission as set forth in certain interpretive letters
addressed to third parties in other transactions. However, the Company has not
sought its own interpretive letter and there can be no assurance that the
staff would make a similar determination with respect to the Senior Exchange
Offer as it has in such interpretive letters to third parties. Based on these
interpretations by the Staff, the Company believes that the Senior Exchange
Notes issued pursuant to the Senior Exchange Offer in exchange for Old Senior
Notes may be offered for resale, resold and
otherwise transferred by a Holder (other than any Holder who is a broker-
dealer or an "affiliate" of the Company within the meaning of Rule 405 of the
Securities Act) without further compliance with the registration and
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prospectus delivery requirements of the Securities Act, provided that such
Senior Exchange Notes are acquired in the ordinary course of such Holder's
business and that such Holder is not participating, and has no arrangement or
understanding with any person to participate, in a distribution (within the
meaning of the Securities Act) of such Senior Exchange Notes. See "--Resale of
Senior Exchange Notes". Each broker-dealer that receives Senior Exchange Notes
for its own account in exchange for Old Senior Notes, where such Old Senior
Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver
a prospectus in connection with any resale of such Senior Exchange Notes. See
"Plan of Distribution".
TERMS OF THE EXCHANGE
The Company hereby offers to exchange, subject to the conditions set forth
herein and in the Senior Letter of Transmittal accompanying this Prospectus,
$1,000 in principal amount of Senior Exchange Notes for each $1,000 in
principal amount of the Old Senior Notes. The terms of the Senior Exchange
Notes are identical in all material respects to the terms of the Old Senior
Notes for which they may be exchanged pursuant to this Senior Exchange Offer,
except that the Senior Exchange Notes will generally be freely transferable by
Holders thereof and will not be subject to any covenant regarding
registration. The Senior Exchange Notes will evidence the same indebtedness as
the Old Senior Notes and will be entitled to the benefits of the Senior Note
Indenture. See "Description of the Senior Exchange Notes".
The Senior Exchange Offer is not conditioned upon any minimum aggregate
principal amount of Old Senior Notes being tendered for exchange.
The Company has not requested, and does not intend to request, an
interpretation by the staff of the Commission with respect to whether the
Senior Exchange Notes issued pursuant to the Senior Exchange Offer in exchange
for the Old Senior Notes may be offered for sale, resold or otherwise
transferred by any holder without compliance with the registration and
prospectus delivery provisions of the Securities Act. Instead, based on an
interpretation by the staff of the Commission set forth in a series of no-
action letters issued to third parties, the Company believes that Senior
Exchange Notes issued pursuant to the Senior Exchange Offer in exchange for
Old Senior Notes may be offered for sale, resold and otherwise transferred by
any Holder of such Senior Exchange Notes (other than any such holder that is a
broker-dealer or is an "affiliate" of the Company within the meaning of Rule
405 under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
Senior Exchange Notes are acquired in the ordinary course of such holder's
business and such holder has no arrangement or understanding with any person
to participate in the distribution of such Senior Exchange Notes and neither
such holder nor any other such person is engaging in or intends to engage in a
distribution of such Senior Exchange Notes. Since the Commission has not
considered the Senior Exchange Offer in the context of a no-action letter,
there can be no assurance that the staff of the Commission would make a
similar determination with respect to the Senior Exchange Offer. Any holder
who is an affiliate of the Company or who tenders in the Senior Exchange Offer
for the purpose of participating in a distribution of the Senior Exchange
Notes cannot rely on such interpretation by the staff of the Commission and
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. Each holder, other
than a broker-dealer, must acknowledge that it is not engaged in, and does not
intend to engage in, a distribution of Senior Exchange Notes. Each broker-
dealer that receives Senior Exchange Notes for its own account in exchange for
Old Senior Notes, where such Old Senior Notes were acquired by such broker-
dealer as a result of market-making activities or other trading activities,
must acknowledge that it will deliver a prospectus in connection with any
resale of such Senior Exchange Notes. See "Plan of Distribution".
Interest on the Senior Exchange Notes will accrue from the last interest
payment date on which interest was paid on the Old Senior Notes so surrendered
or, if no interest has been paid on such Old Senior Notes, from May 18, 1998.
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Tendering holders of the Old Senior Notes will not be required to pay
brokerage commissions or fees or, subject to the instructions in the Senior
Letter of Transmittal, transfer taxes with respect to the exchange of the Old
Senior Notes pursuant to the Senior Exchange Offer.
EXPIRATION DATE; EXTENSION; TERMINATION; AMENDMENT
The Senior Exchange Offer will expire at 5:00 p.m., New York City time, on
, 1998 unless the Company, in its sole discretion, has extended the
period of time for which the Senior Exchange Offer is open (such date, as it
may be extended, is referred to herein as the "Senior Expiration Date"). The
Senior Expiration Date will be at least 20 business days after the
commencement of the Senior Exchange Offer in accordance with Rule 14e-1(a)
under the Exchange Act. The Company expressly reserves the right, at any time
or from time to time, to extend the period of time during which the Senior
Exchange Offer is open, and thereby delay acceptance for exchange of any Old
Senior Notes, by giving oral or written notice to the Senior Exchange Agent
and by giving written notice of such extension to the holders thereof no later
than 9:00 a.m. New York City time on the next business day after the
previously scheduled Senior Expiration Date. During any such extension, all
Old Senior Notes previously tendered will remain subject to the Senior
Exchange Offer unless properly withdrawn.
The Company expressly reserves the right to (i) terminate or amend the
Senior Exchange Offer and not to accept for exchange any Old Senior Notes not
theretofore accepted for exchange upon the occurrence of any of the events
specified below under "--Certain Conditions to the Senior Exchange Offer"
which have not been waived by the Company and (ii) amend the terms of the
Senior Exchange Offer in any manner which, in its good faith judgment, is
advantageous to the holders of the Old Senior Notes, whether before or after
any tender of the Old Senior Notes. If any such termination or amendment
occurs, the Company will notify the Senior Exchange Agent and will either
issue a press release or give oral or written notice to the holders of the Old
Senior Notes as promptly as practicable.
For purposes of the Senior Exchange Offer, a "business day" means any day
other than Saturday, Sunday or a date on which banking institutions are
required or authorized by New York State law to be closed, and consists of the
time period from 12:01 a.m. through 12:00 midnight, New York City time. Unless
the Company terminates the Senior Exchange Offer prior to 5:00 p.m., New York
City time, on the Senior Expiration Date, the Company will exchange the Senior
Exchange Notes for the Old Senior Notes on the Senior Exchange Date.
PROCEDURES FOR TENDERING OLD SENIOR NOTES
The tender to the Company of Old Senior Notes by a Holder thereof as set
forth below and the acceptance thereof by the Company will constitute a
binding agreement between the tendering holder and the Company upon the terms
and subject to the conditions set forth in this Prospectus and in the
accompanying Senior Letter of Transmittal.
A Holder of Old Senior Notes may tender the same by (i) properly completing
and signing the Senior Letter of Transmittal or a facsimile thereof (all
references in this Prospectus to the Senior Letter of Transmittal shall be
deemed to include a facsimile thereof) and delivering the same, together with
the certificate or certificates representing the Old Senior Notes being
tendered and any required signature guarantees and any other documents
required by the Senior Letter of Transmittal, to the Senior Exchange Agent at
its address set forth below on or prior to the Senior Expiration Date (or
complying with the procedure for book-entry transfer described below) or (ii)
complying with the guaranteed delivery procedures described below.
THE METHOD OF DELIVERY OF OLD SENIOR NOTES, SENIOR LETTERS OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDERS.
IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED MAIL PROPERLY
INSURED, WITH RETURN RECEIPT REQUESTED, BE USED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO INSURE TIMELY DELIVERY. NO OLD SENIOR NOTES OR SENIOR
LETTERS OF TRANSMITTAL SHOULD BE SENT TO THE COMPANY.
If tendered Old Senior Notes are registered in the name of the signer of the
Senior Letter of Transmittal and the Senior Exchange Notes to be issued in
exchange therefor are to be issued (and any untendered Old Senior
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Notes are to be reissued) in the name of the registered holder (which term,
for the purposes described herein, shall include any participant in The
Depository Trust Company (also referred to as a "book-entry transfer
facility") whose name appears on a security listing as the owner of Old Senior
Notes), the signature of such signer need not be guaranteed. In any other
case, the tendered Old Senior Notes must be endorsed or accompanied by written
instruments of transfer in form satisfactory to the Company and duly executed
by the registered holder, and the signature on the endorsement or instrument
of transfer must be guaranteed by a bank, broker, dealer, credit union,
savings association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Exchange Act. If the
Senior Exchange Notes and/or Old Senior Notes not exchanged are to be
delivered to an address other than that of the registered holder appearing on
the note register for the Old Senior Notes, the signature in the Senior Letter
of Transmittal must be guaranteed by an Eligible Institution.
The Senior Exchange Agent will make a request within two business days after
the date of receipt of this Prospectus to establish accounts with respect to
the Old Senior Notes at the book-entry transfer facility for the purpose of
facilitating the Senior Exchange Offer, and subject to the establishment
thereof, any financial institution that is a participant in the book-entry
transfer facility's system may make book-entry delivery of Old Senior Notes by
causing such book-entry transfer facility to transfer such Old Senior Notes
into the Senior Exchange Agent's account with respect to the Old Senior Notes
in accordance with the book-entry transfer facility's procedures for such
transfer. Although delivery of Old Senior Notes may be effected through book-
entry transfer into the Senior Exchange Agent's account at the book-entry
transfer facility, an appropriate Senior Letter of Transmittal with any
required signature guarantee and all other required documents must in each
case be transmitted to and received or confirmed by the Senior Exchange Agent
at its address set forth below on or prior to the Senior Expiration Date, or,
if the guaranteed delivery procedures described below are complied with,
within the time period provided under such procedures.
If a holder desires to accept the Senior Exchange Offer and time will not
permit a Senior Letter of Transmittal or Old Senior Notes to reach the Senior
Exchange Agent before the Senior Expiration Date or the procedure for book-
entry transfer cannot be completed on a timely basis, a tender may be effected
if the Senior Exchange Agent has received at its address set forth below on or
prior to the Senior Expiration Date, a letter, telegram or facsimile
transmission (receipt confirmed by telephone and an original delivered by
guaranteed overnight courier) from an Eligible Institution setting forth the
name and address of the tendering holder, the names in which the Old Senior
Notes are registered and, if possible, the certificate numbers of the Old
Senior Notes to be tendered, and stating that the tender is being made thereby
and guaranteeing that within three business days after the Senior Expiration
Date, the Old Senior Notes in proper form for transfer (or a confirmation of
book-entry transfer of such Old Senior Notes into the Senior Exchange Agent's
account at the book-entry transfer facility), will be delivered by such
Eligible Institution together with a properly completed and duly executed
Senior Letter of Transmittal (and any other required documents). Unless Old
Senior Notes being tendered by the above-described method are deposited with
the Senior Exchange Agent within the time period set forth above (accompanied
or preceded by a properly completed Senior Letter of Transmittal and any other
required documents), the Company may, at its option, reject the tender. Copies
of the notice of guaranteed delivery ("Senior Notice of Guaranteed Delivery")
which may be used by Eligible Institutions for the purposes described in this
paragraph are available from the Senior Exchange Agent.
A tender will be deemed to have been received as of the date when (i) the
tendering holder's properly completed and duly signed Senior Letter of
Transmittal accompanied by the Old Senior Notes (or a confirmation of book-
entry transfer of such Old Senior Notes into the Senior Exchange Agent's
account at the book-entry transfer facility) is received by the Senior
Exchange Agent, or (ii) a Senior Notice of Guaranteed Delivery or letter,
telegram or facsimile transmission to similar effect (as provided above) from
an Eligible Institution is received by the Senior Exchange Agent. Issuances of
Senior Exchange Notes in exchange for Old Senior Notes tendered pursuant to a
Senior Notice of Guaranteed Delivery or letter, telegram or facsimile
transmission to similar effect (as provided above) by an Eligible Institution
will be made only against deposit of the Senior Letter of Transmittal (and any
other required documents) and the tendered Old Senior Notes.
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All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Old Senior Notes tendered for exchange will be
determined by the Company in its sole discretion, which determination shall be
final and binding. The Company reserves the absolute right to reject any and
all tenders of any particular Old
Senior Notes not properly tendered or not to accept any particular Old Senior
Notes which acceptance might, in the judgment of the Company or its counsel,
be unlawful. The Company also reserves the absolute right to waive any defects
or irregularities or conditions of the Senior Exchange Offer as to any
particular Old Senior Notes either before or after the Senior Expiration Date
(including the right to waive the ineligibility of any holder who seeks to
tender Old Senior Notes in the Senior Exchange Offer). The interpretation of
the terms and conditions of the Senior Exchange Offer (including the Senior
Letter of Transmittal and the instructions thereto) by the Company shall be
final and binding on all parties. Unless waived, any defects or irregularities
in connection with tenders of Old Senior Notes for exchange must be cured
within such reasonable period of time as the Company shall determine. Neither
the Company, the Senior Exchange Agent nor any other person shall be under any
duty to give notification of any defect or irregularity with respect to any
tender of Old Senior Notes for exchange, nor shall any of them incur any
liability for failure to give such notification.
If the Senior Letter of Transmittal is signed by a person or persons other
than the registered holder or holders of Old Senior Notes, such Old Senior
Notes must be endorsed or accompanied by appropriate powers of attorney, in
either case signed exactly as the name or names of the registered holder or
holders appear on the Old Senior Notes.
If the Senior Letter of Transmittal or any Old Senior Notes or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and,
unless waived by the Company, proper evidence satisfactory to the Company of
their authority to so act must be submitted.
By tendering, each holder will represent to the Company that, among other
things, the Senior Exchange Notes acquired pursuant to the Senior Exchange
Offer are being acquired in the ordinary course of business of the person
receiving such Senior Exchange Notes, whether or not such person is the
holder, that neither the holder nor any such other person has an arrangement
or understanding with any person to participate in the distribution of such
Senior Exchange Notes and that neither the holder nor any such other person is
an "affiliate," as defined under Rule 405 of the Securities Act, of the
Company, or if it is an affiliate it will comply with the registration and
prospectus requirements of the Securities Act to the extent applicable.
Each broker-dealer that receives Senior Exchange Notes for its own account
in exchange for Old Senior Notes where such Old Senior Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities must acknowledge that it will deliver a prospectus in connection
with any resale of such Senior Exchange Notes. Lehman Brothers Inc.'s ability
to make a market in the Senior Exchange Notes will be subject to the
availability of a current market-maker prospectus. See "Plan of Distribution."
TERMS AND CONDITIONS OF THE SENIOR LETTER OF TRANSMITTAL
The Senior Letter of Transmittal contains, among other things, the following
terms and conditions, which are part of the Senior Exchange Offer:
The party tendering Notes for exchange (the "Transferor") exchanges, assigns
and transfers the Old Senior Notes to the Company and irrevocably constitutes
and appoints the Senior Exchange Agent as the Transferor's agent and attorney-
in-fact to cause the Old Senior Notes to be assigned, transferred and
exchanged. The Transferor represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Old Senior Notes and to
acquire Senior Exchange Notes issuable upon the exchange of such tendered
Notes, and that, when the same are accepted for exchange, the Company will
acquire good and unencumbered title to the tendered Old Senior Notes, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The Transferor also warrants that it will, upon request,
execute and deliver any additional documents deemed by the Senior Exchange
Agent or the Company to be necessary or desirable to complete the exchange,
assignment and transfer of tendered Old Senior Notes or transfer ownership of
such Old Senior Notes
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on the account books maintained by a book-entry transfer facility. The
Transferor further agrees that acceptance of any tendered Old Senior Notes by
the Company and the issuance of Senior Exchange Notes in exchange therefor
shall constitute performance in full by the Company of certain of its
obligations under the Senior Registration Rights Agreement. All authority
conferred by the Transferor will survive the death or incapacity of the
Transferor and every obligation of the Transferor shall be binding upon the
heirs, legal representatives, successors, assigns, executors and
administrators of such Transferor.
The Transferor certifies that it is not an "affiliate" of the Company within
the meaning of Rule 405 under the Securities Act and that it is acquiring the
Senior Exchange Notes offered hereby in the ordinary course of such
Transferor's business and that such Transferor has no arrangement with any
person to participate in the distribution of such Senior Exchange Notes. Each
holder, other than a broker-dealer, must acknowledge that it is not engaged
in, and does not intend to engage in, a distribution of Senior Exchange Notes.
Each Transferor which is a broker-dealer receiving Senior Exchange Notes for
its own account must acknowledge that it will deliver a prospectus in
connection with any resale of such Senior Exchange Notes. By so acknowledging
and by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act. In
connection with the offering of the Old Senior Notes, the Company agreed to
file and maintain, subject to certain limitations, a registration statement
that would allow Lehman Brothers Inc. to engage in market-making transactions
with respect to the Senior Exchange Notes. The Company has agreed to bear
registration expenses incurred under such agreement.
WITHDRAWAL RIGHTS
Tenders of Old Senior Notes may be withdrawn at any time prior to the Senior
Expiration Date.
For a withdrawal to be effective, a written notice of withdrawal sent by
telegram, facsimile transmission (receipt confirmed by telephone) or letter
must be received by the Senior Exchange Agent at the address set forth herein
prior to the Senior Expiration Date. Any such notice of withdrawal must (i)
specify the name of the person having tendered the Old Senior Notes to be
withdrawn (the "Depositor"), (ii) identify the Old Senior Notes to be
withdrawn (including the certificate number or numbers and principal amount of
such Old Senior Notes), (iii) specify the principal amount of Old Senior Notes
to be withdrawn, (iv) include a statement that such holder is withdrawing his
election to have such Old Senior Notes exchanged, (v) be signed by the holder
in the same manner as the original signature on the Senior Letter of
Transmittal by which such Old Senior Notes were tendered or as otherwise
described above (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Senior Note
Trustee under the Senior Note Indenture register the transfer of such Old
Senior Notes into the name of the person withdrawing the tender and (vi)
specify the name in which any such Old Senior Notes are to be registered, if
different from that of the Depositor. The Senior Exchange Agent will return
the properly withdrawn Old Senior Notes promptly following receipt of notice
of withdrawal. If Old Senior Notes have been tendered pursuant to the
procedure for book-entry transfer, any notice of withdrawal must specify the
name and number of the account at the book-entry transfer facility to be
credited with the withdrawn Old Senior Notes or otherwise comply with the
book-entry transfer facility procedure. All questions as to the validity of
notices of withdrawals, including time of receipt, will be determined by the
Company and such determination will be final and binding on all parties.
Any Old Senior Notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the Senior Exchange Offer. Any Old
Senior Notes which have been tendered for exchange but which are not exchanged
for any reason will be returned to the holder thereof without cost to such
holder (or, in the case of Old Senior Notes tendered by book-entry transfer
into the Senior Exchange Agent's account at the book-entry transfer facility
pursuant to the book-entry transfer procedures described above, such Old
Senior Notes will be credited to an account with such book-entry transfer
facility specified by the holder) as soon as practicable after withdrawal,
rejection of tender or termination of the Senior Exchange Offer. Properly
withdrawn Old Senior Notes may be retendered by following one of the
procedures described under "--Procedures for Tendering Old Senior Notes" above
at any time on or prior to the Senior Expiration Date.
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ACCEPTANCE OF OLD SENIOR NOTES FOR EXCHANGE; DELIVERY OF SENIOR EXCHANGE NOTES
Upon satisfaction or waiver of all of the conditions to the Senior Exchange
Offer, the Company will accept, promptly on the Exchange Date, all Old Senior
Notes properly tendered and will issue the Senior Exchange
Notes promptly after such acceptance. See "--Certain Conditions to the Senior
Exchange Offer" below. For purposes of the Senior Exchange Offer, the Company
shall be deemed to have accepted properly tendered Old Senior Notes for
exchange when, as and if the Company has given oral or written notice thereof
to the Senior Exchange Agent.
For each Old Senior Note accepted for exchange, the holder of such Old
Senior Note will receive a Senior Exchange Note having a principal amount
equal to that of the surrendered Old Senior Note.
In all cases, issuance of Senior Exchange Notes for Old Senior Notes that
are accepted for exchange pursuant to the Senior Exchange Offer will be made
only after timely receipt by the Senior Exchange Agent of certificates for
such Old Senior Notes or a timely book-entry confirmation of such Old Senior
Notes into the Senior Exchange Agent's account at the book-entry transfer
facility, a properly completed and duly executed Senior Letter of Transmittal
and all other required documents. If any tendered Old Senior Notes are not
accepted for any reason set forth in the terms and conditions of the Senior
Exchange Offer or if Old Senior Notes are submitted for a greater principal
amount than the holder desires to exchange, such unaccepted or non-exchanged
Old Senior Notes will be returned without expense to the tendering holder
thereof (or, in the case of Old Senior Notes tendered by book-entry transfer
into the Senior Exchange Agent's account at the book-entry transfer facility
pursuant to the book-entry transfer procedures described above, such non-
exchanged Old Senior Notes will be credited to an account maintained with such
book-entry transfer facility) as promptly as practicable after the expiration
of the Senior Exchange Offer.
CERTAIN CONDITIONS TO THE SENIOR EXCHANGE OFFER
Notwithstanding any other provision of the Senior Exchange Offer, or any
extension of the Senior Exchange Offer, the Company shall not be required to
accept for exchange, or to issue Senior Exchange Notes in exchange for, any
Old Senior Notes and may terminate or amend the Senior Exchange Offer (by oral
or written notice to the Senior Exchange Agent or by a timely press release)
if at any time before the acceptance of such Old Senior Notes for exchange or
the exchange of the Senior Exchange Notes for such Old Senior Notes, any of
the following conditions exist:
(a) any action or proceeding is instituted or threatened in any court or
by or before any governmental agency or regulatory authority or any
injunction, order or decree is issued with respect to the Senior Exchange
Offer which, in the sole judgment of the Company, might materially impair
the ability of the Company to proceed with the Senior Exchange Offer or
have a material adverse effect on the contemplated benefits of the Senior
Exchange Offer to the Company; or
(b) any change (or any development involving a prospective change) shall
have occurred or be threatened in the business, properties, assets,
liabilities, financial condition, operations, results of operations or
prospects of the Company that is or may be adverse to the Company, or the
Company shall have become aware of facts that have or may have adverse
significance with respect to the value of the Old Senior Notes or the
Senior Exchange Notes or that may materially impair the contemplated
benefits of the Senior Exchange Offer to the Company; or
(c) any law, rule or regulation or applicable interpretations of the
staff of the Commission is issued or promulgated which, in the good faith
determination of the Company, do not permit the Company to effect the
Senior Exchange Offer; or
(d) any governmental approval has not been obtained, which approval the
Company, in its sole discretion, deems necessary for the consummation of
the Senior Exchange Offer; or
(e) there shall have been proposed, adopted or enacted any law, statute,
rule or regulation (or an amendment to any existing law, statute, rule or
regulation) which, in the sole judgment of the Company,
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might materially impair the ability of the Company to proceed with the
Senior Exchange Offer or have a material adverse effect on the contemplated
benefits of the Senior Exchange Offer to the Company; or
(f) there shall occur a change in the current interpretation by the staff
of the Commission which permits the Senior Exchange Notes issued pursuant
to the Senior Exchange Offer in exchange for Old Senior Notes to be offered
for resale, resold and otherwise transferred by holders thereof (other than
any such holder that is an "affiliate" of the Company within the meaning of
Rule 405 under the Securities Act) without compliance with the registration
and prospectus delivery provisions of the Securities Act provided that such
Senior Exchange Notes are acquired in the ordinary course of such Holders'
business and such holders have no arrangement with any person to
participate in the distribution of such Senior Exchange Notes; or
(g) there shall have occurred (i) any general suspension of, shortening
of hours for, or limitation on prices for, trading in securities on any
national securities exchange or in the over-the-counter market (whether or
not mandatory), (ii) any limitation by any governmental agency or authority
which may adversely affect the ability of the Company to complete the
transactions contemplated by the Senior Exchange Offer, (iii) a declaration
of a banking moratorium or any suspension of payments in respect of banks
by Federal or state authorities in the United States (whether or not
mandatory), (iv) a commencement of a war, armed hostilities or other
international or national crisis directly or indirectly involving the
United States, (v) any limitation (whether or not mandatory) by any
governmental authority on, or other event having a reasonable likelihood of
affecting, the extension of credit by banks or other leading institutions
in the United States, or (vi) in the case of any of the foregoing existing
at the time of the commencement of the Senior Exchange Offer, a material
acceleration or worsening thereof.
The Company expressly reserves the right to terminate the Senior Exchange
Offer and not accept for exchange any Old Senior Notes upon the occurrence of
any of the foregoing conditions (which represent all of the material
conditions to the acceptance by the Company of properly tendered Old Senior
Notes). In addition, the Company may amend the Senior Exchange Offer at any
time prior to the Senior Expiration Date if any of the conditions set forth
above occur. Moreover, regardless of whether any of such conditions has
occurred, the Company may amend the Senior Exchange Offer in any manner which,
in its good faith judgment, is advantageous to holders of the Old Senior
Notes.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances giving rise to any
such condition or may be waived by the Company in whole or in part at any time
and from time to time in its sole discretion. The failure by the Company at
any time to exercise any of the foregoing rights shall not be deemed a waiver
of any such right and each such right shall be deemed an ongoing right which
may be asserted at any time and from time to time. If the Company waives or
amends the foregoing conditions, it will, if required by law, extend the
Senior Exchange Offer for a minimum of five business days from the date that
the Company first gives notice, by public announcement or otherwise, of such
waiver or amendment, if the Senior Exchange Offer would otherwise expire
within such five business-day period. Any determination by the Company
concerning the events described above will be final and binding upon all
parties.
In addition, the Company will not accept for exchange any Old Senior Notes
tendered, and no Senior Exchange Notes will be issued in exchange for any such
Old Senior Notes, if at such time any stop order shall be threatened or in
effect with respect to the Registration Statement of which this Prospectus
constitutes a part or the qualification of the Senior Note Indenture under the
Trust Indenture Act of 1939, as amended. In any such event the Company is
required to use every reasonable effort to obtain the withdrawal of any stop
order at the earliest possible time.
The Senior Exchange Offer is not conditioned upon any minimum principal
amount of Old Senior Notes being tendered for exchange.
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SENIOR EXCHANGE AGENT
State Street Bank & Trust Company has been appointed as the Senior Exchange
Agent for the Senior Exchange Offer. All executed Senior Letters of
Transmittal should be directed to the Senior Exchange Agent at one of the
addresses set forth below:
By Hand/Overnight Courier: By Mail:
State Street Bank and Trust Company
State Street Bank and Trust Company Two International Place
P.O. Box 778 Boston, Massachusetts 02110
Boston, Massachusetts 02102 Attn: Corporate Trust Department
Attn: Corporate Trust Department Kellie Mullen
Kellie Mullen
By Facsimile: (617) 664-5314
Attn.: Corporate Trust Department
Telephone: (617) 664-5587
Questions and requests for assistance, requests for additional copies of
this Prospectus or of the Senior Letter of Transmittal and requests for Senior
Notices of Guaranteed Delivery should be directed to the Senior Exchange Agent
at the address and telephone number set forth in the Senior Letter of
Transmittal.
DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ON THE SENIOR LETTER OF
TRANSMITTAL, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE OR TELEX NUMBER
OTHER THAN THE ONES SET FORTH ON THE SENIOR LETTER OF TRANSMITTAL, WILL NOT
CONSTITUTE A VALID DELIVERY.
SOLICITATION OF TENDERS; FEES AND EXPENSES
The Company has not retained any dealer-manager in connection with the
Senior Exchange Offer and will not make any payments to brokers, dealers or
others soliciting acceptances of the Senior Exchange Offer. The Company,
however, will pay the Senior Exchange Agent reasonable and customary fees for
its services and will reimburse it for its reasonable out-of-pocket expenses
in connection therewith. The Company will also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this and other related documents to
the beneficial owners of the Old Senior Notes and in handling or forwarding
tenders for their customers.
The estimated cash expenses to be incurred in connection with the Senior
Exchange Offer will be paid by the Company and are estimated in the aggregate
to be approximately $ which includes fees and expenses of the
Senior Exchange Agent, Senior Note Trustee, registration fees, accounting,
legal, printing and related fees and expenses.
No person has been authorized to give any information or to make any
representations in connection with the Senior Exchange Offer other than those
contained in this Prospectus. If given or made, such information or
representations should not be relied upon as having been authorized by the
Company. Neither the delivery of this Prospectus nor any exchange made
hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the respective dates as
of which information is given herein. The Senior Exchange Offer is not being
made to (nor will tenders be accepted from or on behalf of) holders of Old
Senior Notes in any jurisdiction in which the making of the Senior Exchange
Offer or the acceptance thereof would not be in compliance with the laws of
such jurisdiction. However, the Company may, at its discretion, take such
action as it may deem necessary to make the Senior Exchange Offer in any such
jurisdiction and extend the Senior Exchange Offer to holders of Old Senior
Notes in such jurisdiction. In any jurisdiction in which the securities laws
or blue sky laws of which require the Senior Exchange Offer to be made by a
licensed broker or dealer, the Senior Exchange Offer is being made on behalf
of the Company by one or more registered brokers or dealers which are licensed
under the laws of such jurisdiction.
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TRANSFER TAXES
The Company will pay all transfer taxes, if any, applicable to the exchange
of Old Senior Notes pursuant to the Senior Exchange Offer. If, however,
certificates representing Senior Exchange Notes or Old Senior Notes for
principal amounts not tendered or accepted for exchange are to be delivered
to, or are to be issued in the name of, any person other than the registered
holder of the Old Senior Notes tendered, or if tendered Old Senior Notes are
registered in the name of any person other than the person signing the Senior
Letter of Transmittal, or if a transfer tax is imposed for any reason other
than the exchange of Old Senior Notes pursuant to the Senior Exchange Offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Senior Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering holder.
ACCOUNTING TREATMENT
The Senior Exchange Notes will be recorded at the carrying value of the Old
Senior Notes as reflected in the Company's accounting records on the date of
the exchange. Accordingly, no gain or loss for accounting purposes will be
recognized by the Company upon the exchange of Senior Exchange Notes for Old
Senior Notes. Expenses incurred in connection with the issuance of the Senior
Exchange Notes will be amortized over the term of the Senior Exchange Notes.
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of Old Senior Notes who do not exchange their Old Senior Notes for
Senior Exchange Notes pursuant to the Senior Exchange Offer will continue to
be subject to the restrictions on transfer of such Old Senior Notes as set
forth in the legend thereon. Old Senior Notes not exchanged pursuant to the
Senior Exchange Offer will continue to remain outstanding in accordance with
their terms. In general, Old Senior Notes may not be offered or sold unless
registered under the Securities Act, except pursuant to an exemption from, or
in a transaction not subject to, the Securities Act and applicable state
securities laws. The Company does not currently anticipate that it will
register the Old Senior Notes under the Securities Act.
Participation in the Senior Exchange Offer is voluntary, and holders of Old
Senior Notes should carefully consider whether to participate. Holders of Old
Senior Notes are urged to consult their financial and tax advisors in making
their own decision on what action to take.
As a result of the making of, and upon acceptance for exchange of all
validly tendered Old Senior Notes pursuant to the terms of, this Senior
Exchange Offer, the Company will have fulfilled a covenant contained in the
Senior Registration Rights Agreement. Holders of Old Senior Notes who do not
tender their Old Senior Notes in the Senior Exchange Offer will continue to
hold such Old Senior Notes and will be entitled to all the rights and
limitations applicable thereto under the Senior Note Indenture, except for any
such rights under the Senior Registration Rights Agreement that by their terms
terminate or cease to have further effectiveness as a result of the making of
this Senior Exchange Offer. All untendered Old Senior Notes will continue to
be subject to the restrictions on transfer set forth in the Senior Note
Indenture. To the extent that Old Senior Notes are tendered and accepted in
the Senior Exchange Offer, the trading market for untendered Old Senior Notes
could be adversely affected.
The Company may in the future seek to acquire, subject to the terms of the
Senior Note Indenture, untendered Old Senior Notes in open market or privately
negotiated transactions, through subsequent exchange offers or otherwise. The
Company has no present plan to acquire any Old Senior Notes which are not
tendered in the Senior Exchange Offer.
RESALE OF SENIOR EXCHANGE NOTES
The Company is making the Senior Exchange Offer in reliance on the position
of the staff of the Commission as set forth in certain interpretive letters
addressed to third parties in other transactions. However,
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the Company has not sought its own interpretive letter and there can be no
assurance that the Staff would make a similar determination with respect to
the Senior Exchange Offer as it has in such interpretive letters to third
parties. Based on these interpretations by the staff, the Company believes
that the Senior Exchange Notes issued pursuant to the Senior Exchange Offer in
exchange for Old Senior Notes may be offered for resale, resold and otherwise
transferred by a Holder (other than any Holder who is a broker-dealer or an
"affiliate" of the Company within the meaning of Rule 405 of the Securities
Act) without further compliance with the registration and prospectus delivery
requirements of the Securities Act, provided that such Senior Exchange Notes
are acquired in the ordinary course of such Holder's business and that such
Holder is not participating, and has no arrangement or understanding with any
person to participate, in a distribution (within the meaning of the Securities
Act) of such Senior Exchange Notes. However, any holder who is an "affiliate"
of the Company or who has an arrangement or understanding with respect to the
distribution of the Senior Exchange Notes to be acquired pursuant to the
Senior Exchange Offer, or any broker-dealer who purchased Old Senior Notes
from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act (i) could not rely on the applicable
interpretations of the staff and (ii) must comply with the registration and
prospectus delivery requirements of the Securities Act. A broker-dealer who
holds Old Senior Notes that were acquired for its own account as a result of
market-making or other trading activities may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with
any resale of Senior Exchange Notes. Each such broker-dealer that receives
Senior Exchange Notes for its own account in exchange for Old Senior Notes,
where such Old Senior Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge in the
Senior Letter of Transmittal that it will deliver a prospectus in connection
with any resale of such Senior Exchange Notes. Lehman Brothers Inc.'s ability
to make a market in the Senior Exchange Notes will be subject to the
availability of a current market-maker prospectus. See "Plan of Distribution."
In addition, to comply with the securities laws of certain jurisdictions, if
applicable, the Senior Exchange Notes may not be offered or sold unless they
have been registered or qualified for sale in such jurisdiction or an
exemption from registration or qualification is available and is complied
with. The Company has agreed, pursuant to the Senior Registration Rights
Agreement and subject to certain specified limitations therein, to register or
qualify the Senior Exchange Notes for offer or sale under the securities or
blue sky laws of such jurisdictions as any Holder of the Senior Exchange Notes
reasonably requests in writing. Such registration or qualification may require
the imposition of restrictions or conditions (including suitability
requirements for offerees or purchasers) in connection with the offer or sale
of any Senior Exchange Notes.
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THE SENIOR SUBORDINATED EXCHANGE OFFER
GENERAL
The Company hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Senior Subordinated Letter of
Transmittal (which together constitute the Senior Subordinated Exchange
Offer), to exchange up to $500 million aggregate principal amount of Senior
Subordinated Exchange Notes for a like aggregate principal amount of Old
Senior Subordinated Notes properly tendered on or prior to the Senior
Subordinated Expiration Date and not withdrawn as permitted pursuant to the
procedures described below. The Senior Subordinated Exchange Offer is being
made with respect to all of the Old Senior Subordinated Notes.
As of the date of this Prospectus, $500 million aggregate principal amount
of the Old Senior Subordinated Notes is outstanding. This Prospectus, together
with the Senior Subordinated Letter of Transmittal, is first being sent on or
about , 1998, to all holders of Old Senior Subordinated Notes known to
the Company. The Company's obligation to accept Old Senior Subordinated Notes
for exchange pursuant to the Senior Subordinated Exchange Offer is subject to
certain conditions set forth under "--Certain Conditions to the Senior
Subordinated Exchange Offer" below. The Company currently expects that each of
the conditions will be satisfied and that no waivers will be necessary.
PURPOSE OF THE SENIOR SUBORDINATED EXCHANGE OFFER
The Old Senior Subordinated Notes were issued on May 18, 1998 in a
transaction exempt from the registration requirements of the Securities Act.
Accordingly, the Old Senior Subordinated Notes may not be reoffered, resold,
or otherwise transferred unless so registered or unless an applicable
exemption from the registration and prospectus delivery requirements of the
Securities Act is available.
In connection with the issuance and sale of the Old Senior Subordinated
Notes, the Company entered into the Senior Subordinated Registration Rights
Agreement, which requires the Company to file with the Commission a
registration statement relating to the Senior Subordinated Exchange Offer not
later than 90 days after the date of issuance of the Old Senior Subordinated
Notes, and to use its best efforts to cause the registration statement
relating to the Senior Subordinated Exchange Offer to become effective under
the Securities Act not later than 180 days after the date of issuance of the
Old Senior Subordinated Notes and the Senior Subordinated Exchange Offer to be
consummated not later than 30 days after the date of the effectiveness of the
Registration Statement (or use its best efforts to cause to become effective
by the 180th calendar day after the date of issuance a shelf registration
statement with respect to resales of the Old Senior Subordinated Notes). A
copy of the Senior Subordinated Registration Rights Agreement has been filed
as an exhibit to the Registration Statement of which this Prospectus is a
part.
The Senior Subordinated Exchange Offer is being made by the Company to
satisfy its obligations with respect to the Senior Subordinated Registration
Rights Agreement. The term "holder," with respect to the Senior Subordinated
Exchange Offer, means any person in whose name Old Senior Subordinated Notes
are registered on the books of the Company or any other person who has
obtained a properly completed bond power from the registered holder, or any
person whose Old Senior Subordinated Notes are held of record by The
Depository Trust Company. Other than pursuant to the Senior Subordinated
Registration Rights Agreement, the Company is not required to file any
registration statement to register any outstanding Old Senior Subordinated
Notes. Holders of Old Senior Subordinated Notes who do not tender their Old
Senior Subordinated Notes or whose Old Senior Subordinated Notes are tendered
but not accepted would have to rely on exemptions to registration requirements
under the securities laws, including the Securities Act, if they wish to sell
their Old Senior Subordinated Notes.
The Company is making the Senior Subordinated Exchange Offer in reliance on
the position of the staff of the Commission as set forth in certain
interpretive letters addressed to third parties in other transactions.
However, the Company has not sought its own interpretive letter and there can
be no assurance that the staff would make a similar determination with respect
to the Senior Subordinated Exchange Offer as it has in such interpretive
letters to third parties. Based on these interpretations by the Staff, the
Company believes that the
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Senior Subordinated Exchange Notes issued pursuant to the Senior Subordinated
Exchange Offer in exchange for Old Senior Subordinated Notes may be offered
for resale, resold and otherwise transferred by a Holder (other than any
Holder who is a broker-dealer or an "affiliate" of the Company within the
meaning of Rule 405 of the Securities Act) without further compliance with the
registration and prospectus delivery requirements of the Securities Act,
provided that such Senior Subordinated Exchange Notes are acquired in the
ordinary course of such Holder's business and that such Holder is not
participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the Securities Act) of
such Senior Subordinated Exchange Notes. See "--Resale of Senior Subordinated
Exchange Notes". Each broker-dealer that receives Senior Subordinated Exchange
Notes for its own account in exchange for Old Senior Subordinated Notes, where
such Old Senior Subordinated Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Senior Subordinated Exchange Notes. See "Plan of Distribution".
TERMS OF THE EXCHANGE
The Company hereby offers to exchange, subject to the conditions set forth
herein and in the Senior Subordinated Letter of Transmittal accompanying this
Prospectus, $1,000 in principal amount of Senior Subordinated Exchange Notes
for each $1,000 in principal amount of the Old Senior Subordinated Notes. The
terms of the Senior Subordinated Exchange Notes are identical in all material
respects to the terms of the Old Senior Subordinated Notes for which they may
be exchanged pursuant to this Senior Subordinated Exchange Offer, except that
the Senior Subordinated Exchange Notes will generally be freely transferable
by Holders thereof and will not be subject to any covenant regarding
registration. The Senior Subordinated Exchange Notes will evidence the same
indebtedness as the Old Senior Subordinated Notes and will be entitled to the
benefits of the Senior Subordinated Note Indenture. See "Description of the
Senior Subordinated Exchange Notes".
The Senior Subordinated Exchange Offer is not conditioned upon any minimum
aggregate principal amount of Old Senior Subordinated Notes being tendered for
exchange.
The Company has not requested, and does not intend to request, an
interpretation by the staff of the Commission with respect to whether the
Senior Subordinated Exchange Notes issued pursuant to the Senior Subordinated
Exchange Offer in exchange for Old Senior Subordinated Notes may be offered
for sale, resold or otherwise transferred by any holder without compliance
with the registration and prospectus delivery provisions of the Securities
Act. Instead, based on an interpretation by the staff of the Commission set
forth in a series of no-action letters issued to third parties, the Company
believes that Senior Subordinated Exchange Notes issued pursuant to the Senior
Subordinated Exchange Offer in exchange for Old Senior Subordinated Notes may
be offered for sale, resold and otherwise transferred by any Holder of such
Senior Subordinated Exchange Notes (other than any such holder that is a
broker-dealer or is an "affiliate" of the Company within the meaning of Rule
405 under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
Senior Subordinated Exchange Notes are acquired in the ordinary course of such
holder's business and such holder has no arrangement or understanding with any
person to participate in the distribution of such Senior Subordinated Exchange
Notes and neither such holder nor any other such person is engaging in or
intends to engage in a distribution of such Senior Subordinated Exchange
Notes. Since the Commission has not considered the Senior Subordinated
Exchange Offer in the context of a no-action letter, there can be no assurance
that the staff of the Commission would make a similar determination with
respect to the Senior Subordinated Exchange Offer. Any holder who is an
affiliate of the Company or who tenders in the Senior Subordinated Exchange
Offer for the purpose of participating in a distribution of the Senior
Subordinated Exchange Notes cannot rely on such interpretation by the staff of
the Commission and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction.
Each holder, other than a broker-dealer, must acknowledge that it is not
engaged in, and does not intend to engage in, a distribution of Senior
Subordinated Exchange Notes. Each broker-dealer that receives Senior
Subordinated Exchange Notes for its own account in exchange for Old Senior
Subordinated Notes, where such Old Senior Subordinated Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Senior Subordinated Exchange Notes. See "Plan of
Distribution".
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Interest on the Senior Subordinated Exchange Notes will accrue from the last
interest payment date on which interest was paid on the Old Senior
Subordinated Notes so surrendered or, if no interest has been paid on such Old
Senior Subordinated Notes, from May 18, 1998.
Tendering holders of the Old Senior Subordinated Notes will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Senior Subordinated Letter of Transmittal, transfer taxes with respect to the
exchange of Old Senior Subordinated Notes pursuant to the Senior Subordinated
Exchange Offer.
EXPIRATION DATE; EXTENSION; TERMINATION; AMENDMENT
The Senior Subordinated Exchange Offer will expire at 5:00 p.m., New York
City time, on , 1998 unless the Company, in its sole discretion, has
extended the period of time for which the Senior Subordinated Exchange Offer
is open (such date, as it may be extended, is referred to herein as the
"Senior Subordinated Expiration Date"). The Senior Subordinated Expiration
Date will be at least 20 business days after the commencement of the Senior
Subordinated Exchange Offer in accordance with Rule 14e-1(a) under the
Exchange Act. The Company expressly reserves the right, at any time or from
time to time, to extend the period of time during which the Senior
Subordinated Exchange Offer is open, and thereby delay acceptance for exchange
of any Old Senior Subordinated Notes, by giving oral or written notice to the
Senior Subordinated Exchange Agent and by giving written notice of such
extension to the holders thereof no later than 9:00 a.m. New York City time on
the next business day after the previously scheduled Senior Subordinated
Expiration Date. During any such extension, all Old Senior Subordinated Notes
previously tendered will remain subject to the Senior Subordinated Exchange
Offer unless properly withdrawn.
The Company expressly reserves the right to (i) terminate or amend the
Senior Subordinated Exchange Offer and not to accept for exchange any Old
Senior Subordinated Notes not theretofore accepted for exchange upon the
occurrence of any of the events specified below under "--Certain Conditions to
the Senior Subordinated Exchange Offer" which have not been waived by the
Company and (ii) amend the terms of the Senior Subordinated Exchange Offer in
any manner which, in its good faith judgment, is advantageous to the holders
of the Old Senior Subordinated Notes, whether before or after any tender of
the Old Senior Subordinated Notes. If any such termination or amendment
occurs, the Company will notify the Senior Subordinated Exchange Agent and
will either issue a press release or give oral or written notice to the
holders of the Old Senior Subordinated Notes as promptly as practicable.
For purposes of the Senior Subordinated Exchange Offer, a "business day"
means any day other than Saturday, Sunday or a date on which banking
institutions are required or authorized by New York State law to be closed,
and consists of the time period from 12:01 a.m. through 12:00 midnight, New
York City time. Unless the Company terminates the Senior Subordinated Exchange
Offer prior to 5:00 p.m., New York City time, on the Senior Subordinated
Expiration Date, the Company will exchange the Senior Subordinated Exchange
Notes for the Old Senior Subordinated Notes on the Senior Subordinated
Exchange Date.
PROCEDURES FOR TENDERING OLD SENIOR SUBORDINATED NOTES
The tender to the Company of Old Senior Subordinated Notes by a Holder
thereof as set forth below and the acceptance thereof by the Company will
constitute a binding agreement between the tendering holder and the Company
upon the terms and subject to the conditions set forth in this Prospectus and
in the accompanying Senior Subordinated Letter of Transmittal.
A Holder of Old Senior Subordinated Notes may tender the same by (i)
properly completing and signing the Senior Subordinated Letter of Transmittal
or a facsimile thereof (all references in this Prospectus to the Senior
Subordinated Letter of Transmittal shall be deemed to include a facsimile
thereof) and delivering the same, together with the certificate or
certificates representing the Old Senior Subordinated Notes being tendered and
any required signature guarantees and any other documents required by the
Senior Subordinated Letter of Transmittal, to the Senior Subordinated Exchange
Agent at its address set forth below on or prior to the Senior
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Subordinated Expiration Date (or complying with the procedure for book-entry
transfer described below) or (ii) complying with the guaranteed delivery
procedures described below.
THE METHOD OF DELIVERY OF OLD SENIOR SUBORDINATED NOTES, SENIOR SUBORDINATED
LETTERS OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND
RISK OF THE HOLDERS. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT
REGISTERED MAIL PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, BE USED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO INSURE TIMELY DELIVERY. NO OLD
SENIOR SUBORDINATED NOTES OR SENIOR SUBORDINATED LETTERS OF TRANSMITTAL SHOULD
BE SENT TO THE COMPANY.
If tendered Old Senior Subordinated Notes are registered in the name of the
signer of the Senior Subordinated Letter of Transmittal and the Senior
Subordinated Exchange Notes to be issued in exchange therefor are to be issued
(and any untendered Old Senior Subordinated Notes are to be reissued) in the
name of the registered holder (which term, for the purposes described herein,
shall include any participant in The Depository Trust Company (also referred
to as a "book-entry transfer facility") whose name appears on a security
listing as the owner of Old Senior Subordinated Notes), the signature of such
signer need not be guaranteed. In any other case, the tendered Old Senior
Subordinated Notes must be endorsed or accompanied by written instruments of
transfer in form satisfactory to the Company and duly executed by the
registered holder, and the signature on the endorsement or instrument of
transfer must be guaranteed by a bank, broker, dealer, credit union, savings
association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Exchange Act. If the
Senior Subordinated Exchange Notes and/or Old Senior Subordinated Notes not
exchanged are to be delivered to an address other than that of the registered
holder appearing on the note register for the Old Senior Subordinated Notes,
the signature in the Senior Subordinated Letter of Transmittal must be
guaranteed by an Eligible Institution.
The Senior Subordinated Exchange Agent will make a request within two
business days after the date of receipt of this Prospectus to establish
accounts with respect to the Old Senior Subordinated Notes at the book-entry
transfer facility for the purpose of facilitating the Senior Subordinated
Exchange Offer, and subject to the establishment thereof, any financial
institution that is a participant in the book-entry transfer facility's system
may make book-entry delivery of Old Senior Subordinated Notes by causing such
book-entry transfer facility to transfer such Old Senior Subordinated Notes
into the Senior Subordinated Exchange Agent's account with respect to the Old
Senior Subordinated Notes in accordance with the book-entry transfer
facility's procedures for such transfer. Although delivery of Old Senior
Subordinated Notes may be effected through book-entry transfer into the Senior
Subordinated Exchange Agent's account at the book-entry transfer facility, an
appropriate Senior Subordinated Letter of Transmittal with any required
signature guarantee and all other required documents must in each case be
transmitted to and received or confirmed by the Senior Subordinated Exchange
Agent at its address set forth below on or prior to the Senior Subordinated
Expiration Date, or, if the guaranteed delivery procedures described below are
complied with, within the time period provided under such procedures.
If a holder desires to accept the Senior Subordinated Exchange Offer and
time will not permit a Senior Subordinated Letter of Transmittal or Old Senior
Subordinated Notes to reach the Senior Subordinated Exchange Agent before the
Senior Subordinated Expiration Date or the procedure for book-entry transfer
cannot be completed on a timely basis, a tender may be effected if the Senior
Subordinated Exchange Agent has received at its address set forth below on or
prior to the Senior Subordinated Expiration Date, a letter, telegram or
facsimile transmission (receipt confirmed by telephone and an original
delivered by guaranteed overnight courier) from an Eligible Institution
setting forth the name and address of the tendering holder, the names in which
the Old Senior Subordinated Notes are registered and, if possible, the
certificate numbers of the Old Senior Subordinated Notes to be tendered, and
stating that the tender is being made thereby and guaranteeing that within
three business days after the Senior Subordinated Expiration Date, the Old
Senior Subordinated Notes in proper form for transfer (or a confirmation of
book-entry transfer of such Old Senior Subordinated Notes into the Senior
Subordinated Exchange Agent's account at the book-entry transfer facility),
will be delivered by such Eligible Institution together with a properly
completed and duly executed Senior Subordinated Letter of Transmittal (and any
other required documents). Unless Old Senior Subordinated Notes being tendered
by the above-described method are deposited with the Senior Subordinated
Exchange Agent within the time period set forth above
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(accompanied or preceded by a properly completed Senior Subordinated Letter of
Transmittal and any other required documents), the Company may, at its option,
reject the tender. Copies of the notice of guaranteed delivery ("Senior
Subordinated Notice of Guaranteed Delivery") which may be used by Eligible
Institutions for the purposes described in this paragraph are available from
the Senior Subordinated Exchange Agent.
A tender will be deemed to have been received as of the date when (i) the
tendering holder's properly completed and duly signed Senior Subordinated
Letter of Transmittal accompanied by the Old Senior Subordinated Notes (or a
confirmation of book-entry transfer of such Old Senior Subordinated Notes into
the Senior Subordinated Exchange Agent's account at the book-entry transfer
facility) is received by the Senior Subordinated Exchange Agent, or (ii) a
Senior Subordinated Notice of Guaranteed Delivery or letter, telegram or
facsimile transmission to similar effect (as provided above) from an Eligible
Institution is received by the Senior Subordinated Exchange Agent. Issuances
of Senior Subordinated Exchange Notes in exchange for Old Senior Subordinated
Notes tendered pursuant to a Senior Subordinated Notice of Guaranteed Delivery
or letter, telegram or facsimile transmission to similar effect (as provided
above) by an Eligible Institution will be made only against deposit of the
Senior Subordinated Letter of Transmittal (and any other required documents)
and the tendered Old Senior Subordinated Notes.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Old Senior Subordinated Notes tendered for exchange
will be determined by the Company in its sole discretion, which determination
shall be final and binding. The Company reserves the absolute right to reject
any and all tenders of any particular Old Senior Subordinated Notes not
properly tendered or not to accept any particular Old Senior Subordinated
Notes which acceptance might, in the judgment of the Company or its counsel,
be unlawful. The Company also reserves the absolute right to waive any defects
or irregularities or conditions of the Senior Subordinated Exchange Offer as
to any particular Old Senior Subordinated Notes either before or after the
Senior Subordinated Expiration Date (including the right to waive the
ineligibility of any holder who seeks to tender Old Senior Subordinated Notes
in the Senior Subordinated Exchange Offer). The interpretation of the terms
and conditions of the Senior Subordinated Exchange Offer (including the Senior
Subordinated Letter of Transmittal and the instructions thereto) by the
Company shall be final and binding on all parties. Unless waived, any defects
or irregularities in connection with tenders of Old Senior Subordinated Notes
for exchange must be cured within such reasonable period of time as the
Company shall determine. Neither the Company, the Senior Subordinated Exchange
Agent nor any other person shall be under any duty to give notification of any
defect or irregularity with respect to any tender of Old Senior Subordinated
Notes for exchange, nor shall any of them incur any liability for failure to
give such notification.
If the Senior Subordinated Letter of Transmittal is signed by a person or
persons other than the registered holder or holders of Old Senior Subordinated
Notes, such Old Senior Subordinated Notes must be endorsed or accompanied by
appropriate powers of attorney, in either case signed exactly as the name or
names of the registered holder or holders appear on the Old Senior
Subordinated Notes.
If the Senior Subordinated Letter of Transmittal or any Old Senior
Subordinated Notes or powers of attorney are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or
others acting in a fiduciary or representative capacity, such persons should
so indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority to so act must be submitted.
By tendering, each holder will represent to the Company that, among other
things, the Senior Subordinated Exchange Notes acquired pursuant to the Senior
Subordinated Exchange Offer are being acquired in the ordinary course of
business of the person receiving such Senior Subordinated Exchange Notes,
whether or not such person is the holder, that neither the holder nor any such
other person has an arrangement or understanding with any person to
participate in the distribution of such Senior Subordinated Exchange Notes and
that neither the holder nor any such other person is an "affiliate," as
defined under Rule 405 of the Securities Act, of the Company, or if it is an
affiliate it will comply with the registration and prospectus requirements of
the Securities Act to the extent applicable.
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Each broker-dealer that receives Senior Subordinated Exchange Notes for its
own account in exchange for Old Senior Subordinated Notes where such Old
Senior Subordinated Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities must acknowledge that it
will deliver a prospectus in connection with any resale of such Senior
Subordinated Exchange Notes. Lehman Brothers Inc.'s ability to make a market
in the Senior Subordinated Exchange Notes will be subject to the availability
of a current market-maker prospectus. See "Plan of Distribution."
TERMS AND CONDITIONS OF THE SENIOR SUBORDINATED LETTER OF TRANSMITTAL
The Senior Subordinated Letter of Transmittal contains, among other things,
the following terms and conditions, which are part of the Senior Subordinated
Exchange Offer:
The party tendering Notes for exchange (the "Transferor") exchanges, assigns
and transfers the Old Senior Subordinated Notes to the Company and irrevocably
constitutes and appoints the Senior Subordinated Exchange Agent as the
Transferor's agent and attorney-in-fact to cause the Old Senior Subordinated
Notes to be assigned, transferred and exchanged. The Transferor represents and
warrants that it has full power and authority to tender, exchange, assign and
transfer the Old Senior Subordinated Notes and to acquire Senior Subordinated
Exchange Notes issuable upon the exchange of such tendered Notes, and that,
when the same are accepted for exchange, the Company will acquire good and
unencumbered title to the tendered Old Senior Subordinated Notes, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The Transferor also warrants that it will, upon request,
execute and deliver any additional documents deemed by the Senior Subordinated
Exchange Agent or the Company to be necessary or desirable to complete the
exchange, assignment and transfer of tendered Old Senior Subordinated Notes or
transfer ownership of such Old Senior Subordinated Notes on the account books
maintained by a book-entry transfer facility. The Transferor further agrees
that acceptance of any tendered Old Senior Subordinated Notes by the Company
and the issuance of Senior Subordinated Exchange Notes in exchange therefor
shall constitute performance in full by the Company of certain of its
obligations under the Senior Subordinated Registration Rights Agreement. All
authority conferred by the Transferor will survive the death or incapacity of
the Transferor and every obligation of the Transferor shall be binding upon
the heirs, legal representatives, successors, assigns, executors and
administrators of such Transferor.
The Transferor certifies that it is not an "affiliate" of the Company within
the meaning of Rule 405 under the Securities Act and that it is acquiring the
Senior Subordinated Exchange Notes offered hereby in the ordinary course of
such Transferor's business and that such Transferor has no arrangement with
any person to participate in the distribution of such Senior Subordinated
Exchange Notes. Each holder, other than a broker-dealer, must acknowledge that
it is not engaged in, and does not intend to engage in, a distribution of
Senior Subordinated Exchange Notes. Each Transferor which is a broker-dealer
receiving Senior Subordinated Exchange Notes for its own account must
acknowledge that it will deliver a prospectus in connection with any resale of
such Senior Subordinated Exchange Notes. By so acknowledging and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. In connection with the
offering of the Old Senior Subordinated Notes, the Company agreed to file and
maintain, subject to certain limitations, a registration statement that would
allow Lehman Brothers Inc. to engage in market-making transactions with
respect to the Senior Subordinated Exchange Notes. The Company has agreed to
bear registration expenses incurred under such agreement.
WITHDRAWAL RIGHTS
Tenders of Old Senior Subordinated Notes may be withdrawn at any time prior
to the Senior Subordinated Expiration Date.
For a withdrawal to be effective, a written notice of withdrawal sent by
telegram, facsimile transmission (receipt confirmed by telephone) or letter
must be received by the Senior Subordinated Exchange Agent at the address set
forth herein prior to the Senior Subordinated Expiration Date. Any such notice
of withdrawal must (i) specify the name of the person having tendered the Old
Senior Subordinated Notes to be withdrawn (the "Depositor"), (ii) identify the
Old Senior Subordinated Notes to be withdrawn (including the certificate
number or numbers and principal amount of such Old Senior Subordinated Notes),
(iii) specify the principal amount of
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Old Senior Subordinated Notes to be withdrawn, (iv) include a statement that
such holder is withdrawing his election to have such Old Senior Subordinated
Notes exchanged, (v) be signed by the holder in the same manner as the
original signature on the Senior Subordinated Letter of Transmittal by which
such Old Senior Subordinated Notes were tendered or as otherwise described
above (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the Senior Subordinated Note Trustee
under the Senior Subordinated Note Indenture register the transfer of such Old
Senior Subordinated Notes into the name of the person withdrawing the tender
and (vi) specify the name in which any such Old Senior Subordinated Notes are
to be registered, if different from that of the Depositor. The Senior
Subordinated Exchange Agent will return the properly withdrawn Old Senior
Subordinated Notes promptly following receipt of notice of withdrawal. If Old
Senior Subordinated Notes have been tendered pursuant to the procedure for
book-entry transfer, any notice of withdrawal must specify the name and number
of the account at the book-entry transfer facility to be credited with the
withdrawn Old Senior Subordinated Notes or otherwise comply with the book-
entry transfer facility procedure. All questions as to the validity of notices
of withdrawals, including time of receipt, will be determined by the Company
and such determination will be final and binding on all parties.
Any Old Senior Subordinated Notes so withdrawn will be deemed not to have
been validly tendered for exchange for purposes of the Senior Subordinated
Exchange Offer. Any Old Senior Subordinated Notes which have been tendered for
exchange but which are not exchanged for any reason will be returned to the
holder thereof without cost to such holder (or, in the case of Old Senior
Subordinated Notes tendered by book-entry transfer into the Senior
Subordinated Exchange Agent's account at the book-entry transfer facility
pursuant to the book-entry transfer procedures described above, such Old
Senior Subordinated Notes will be credited to an account with such book-entry
transfer facility specified by the holder) as soon as practicable after
withdrawal, rejection of tender or termination of the Senior Subordinated
Exchange Offer. Properly withdrawn Old Senior Subordinated Notes may be
retendered by following one of the procedures described under "--Procedures
for Tendering Old Senior Subordinated Notes" above at any time on or prior to
the Senior Subordinated Expiration Date.
ACCEPTANCE OF OLD SENIOR SUBORDINATED NOTES FOR EXCHANGE; DELIVERY OF SENIOR
SUBORDINATED EXCHANGE NOTES
Upon satisfaction or waiver of all of the conditions to the Senior
Subordinated Exchange Offer, the Company will accept, promptly on the Senior
Subordinated Exchange Date, all Old Senior Subordinated Notes properly
tendered and will issue the Senior Subordinated Exchange Notes promptly after
such acceptance. See "--Certain Conditions to the Senior Subordinated Exchange
Offer" below. For purposes of the Senior Subordinated Exchange Offer, the
Company shall be deemed to have accepted properly tendered Old Senior
Subordinated Notes for exchange when, as and if the Company has given oral or
written notice thereof to the Senior Subordinated Exchange Agent.
For each Old Senior Subordinated Note accepted for exchange, the holder of
such Old Senior Subordinated Note will receive a Senior Subordinated Exchange
Note having a principal amount equal to that of the surrendered Old Senior
Subordinated Note.
In all cases, issuance of Senior Subordinated Exchange Notes for Old Senior
Subordinated Notes that are accepted for exchange pursuant to the Senior
Subordinated Exchange Offer will be made only after timely receipt by the
Senior Subordinated Exchange Agent of certificates for such Old Senior
Subordinated Notes or a timely book-entry confirmation of such Old Senior
Subordinated Notes into the Senior Subordinated Exchange Agent's account at
the book-entry transfer facility, a properly completed and duly executed
Senior Subordinated Letter of Transmittal and all other required documents. If
any tendered Old Senior Subordinated Notes are not accepted for any reason set
forth in the terms and conditions of the Senior Subordinated Exchange Offer or
if Old Senior Subordinated Notes are submitted for a greater principal amount
than the holder desires to exchange, such unaccepted or non-exchanged Old
Senior Subordinated Notes will be returned without expense to the tendering
holder thereof (or, in the case of Old Senior Subordinated Notes tendered by
book-entry transfer into the Senior Subordinated Exchange Agent's account at
the book-entry transfer facility pursuant to the book-entry transfer
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procedures described above, such non-exchanged Old Senior Subordinated Notes
will be credited to an account maintained with such book-entry transfer
facility) as promptly as practicable after the expiration of the Senior
Subordinated Exchange Offer.
CERTAIN CONDITIONS TO THE SENIOR SUBORDINATED EXCHANGE OFFER
Notwithstanding any other provision of the Senior Subordinated Exchange
Offer, or any extension of the Senior Subordinated Exchange Offer, the Company
shall not be required to accept for exchange, or to issue Senior Subordinated
Exchange Notes in exchange for, any Old Senior Subordinated Notes and may
terminate or amend the Senior Subordinated Exchange Offer (by oral or written
notice to the Senior Subordinated Exchange Agent or by a timely press release)
if at any time before the acceptance of such Old Senior Subordinated Notes for
exchange or the exchange of the Senior Subordinated Exchange Notes for such
Old Senior Subordinated Notes, any of the following conditions exist:
(a) any action or proceeding is instituted or threatened in any court or
by or before any governmental agency or regulatory authority or any
injunction, order or decree is issued with respect to the Senior
Subordinated Exchange Offer which, in the sole judgment of the Company,
might materially impair the ability of the Company to proceed with the
Senior Subordinated Exchange Offer or have a material adverse effect on the
contemplated benefits of the Senior Subordinated Exchange Offer to the
Company; or
(b) any change (or any development involving a prospective change) shall
have occurred or be threatened in the business, properties, assets,
liabilities, financial condition, operations, results of operations or
prospects of the Company that is or may be adverse to the Company, or the
Company shall have become aware of facts that have or may have adverse
significance with respect to the value of the Old Senior Subordinated Notes
or the Senior Subordinated Exchange Notes or that may materially impair the
contemplated benefits of the Senior Subordinated Exchange Offer to the
Company; or
(c) any law, rule or regulation or applicable interpretations of the
staff of the Commission is issued or promulgated which, in the good faith
determination of the Company, do not permit the Company to effect the
Senior Subordinated Exchange Offer; or
(d) any governmental approval has not been obtained, which approval the
Company, in its sole discretion, deems necessary for the consummation of
the Senior Subordinated Exchange Offer; or
(e) there shall have been proposed, adopted or enacted any law, statute,
rule or regulation (or an amendment to any existing law, statute, rule or
regulation) which, in the sole judgment of the Company, might materially
impair the ability of the Company to proceed with the Senior Subordinated
Exchange Offer or have a material adverse effect on the contemplated
benefits of the Senior Subordinated Exchange Offer to the Company; or
(f) there shall occur a change in the current interpretation by the staff
of the Commission which permits the Senior Subordinated Exchange Notes
issued pursuant to the Senior Subordinated Exchange Offer in exchange for
Old Senior Subordinated Notes to be offered for resale, resold and
otherwise transferred by holders thereof (other than any such holder that
is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act provided that such Senior
Subordinated Exchange Notes are acquired in the ordinary course of such
Holders' business and such holders have no arrangement with any person to
participate in the distribution of such Senior Subordinated Exchange Notes;
or
(g) there shall have occurred (i) any general suspension of, shortening
of hours for, or limitation on prices for, trading in securities on any
national securities exchange or in the over-the-counter market (whether or
not mandatory), (ii) any limitation by any governmental agency or authority
which may adversely affect the ability of the Company to complete the
transactions contemplated by the Senior Subordinated Exchange Offer, (iii)
a declaration of a banking moratorium or any suspension of payments in
respect of banks by Federal or state authorities in the United States
(whether or not mandatory), (iv) a commencement of a war, armed hostilities
or other international or national crisis directly or indirectly
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involving the United States, (v) any limitation (whether or not mandatory)
by any governmental authority on, or other event having a reasonable
likelihood of affecting, the extension of credit by banks or other leading
institutions in the United States, or (vi) in the case of any of the
foregoing existing at the time of the commencement of the Senior
Subordinated Exchange Offer, a material acceleration or worsening thereof.
The Company expressly reserves the right to terminate the Senior
Subordinated Exchange Offer and not accept for exchange any Old Senior
Subordinated Notes upon the occurrence of any of the foregoing conditions
(which represent all of the material conditions to the acceptance by the
Company of properly tendered Old Senior Subordinated Notes). In addition, the
Company may amend the Senior Subordinated Exchange Offer at any time prior to
the Senior Subordinated Expiration Date if any of the conditions set forth
above occur. Moreover, regardless of whether any of such conditions has
occurred, the Company may amend the Senior Subordinated Exchange Offer in any
manner which, in its good faith judgment, is advantageous to holders of the
Old Senior Subordinated Notes.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances giving rise to any
such condition or may be waived by the Company in whole or in part at any time
and from time to time in its sole discretion. The failure by the Company at
any time to exercise any of the foregoing rights shall not be deemed a waiver
of any such right and each such right shall be deemed an ongoing right which
may be asserted at any time and from time to time. If the Company waives or
amends the foregoing conditions, it will, if required by law, extend the
Senior Subordinated Exchange Offer for a minimum of five business days from
the date that the Company first gives notice, by public announcement or
otherwise, of such waiver or amendment, if the Senior Subordinated Exchange
Offer would otherwise expire within such five business-day period. Any
determination by the Company concerning the events described above will be
final and binding upon all parties.
In addition, the Company will not accept for exchange any Old Senior
Subordinated Notes tendered, and no Senior Subordinated Exchange Notes will be
issued in exchange for any such Old Senior Subordinated Notes, if at such time
any stop order shall be threatened or in effect with respect to the
Registration Statement of which this Prospectus constitutes a part or the
qualification of the Senior Subordinated Note Indenture under the Trust
Indenture Act of 1939, as amended. In any such event the Company is required
to use every reasonable effort to obtain the withdrawal of any stop order at
the earliest possible time.
The Senior Subordinated Exchange Offer is not conditioned upon any minimum
principal amount of Old Senior Subordinated Notes being tendered for exchange.
SENIOR SUBORDINATED EXCHANGE AGENT
State Street Bank and Trust Company has been appointed as the Senior
Subordinated Exchange Agent for the Senior Subordinated Exchange Offer. All
executed Senior Subordinated Letters of Transmittal should be directed to the
Senior Subordinated Exchange Agent at one of the addresses set forth below:
By Hand/Overnight Courier: By Mail:
State Street Bank and Trust Company State Street Bank and Trust Company
P.O. Box 778 Two International Place
Boston, Massachusetts 02102 Boston, Massachusetts 02110
Attn: Corporate Trust Department Attn: Corporate Trust Department
Kellie Mullen Kellie Mullen
By Facsimile: (617) 664-5314
Attn.: Corporate Trust Department
Telephone: (617) 664-5587
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Questions and requests for assistance, requests for additional copies of
this Prospectus or of the Senior Subordinated Letter of Transmittal and
requests for Senior Subordinated Notices of Guaranteed Delivery should be
directed to the Senior Subordinated Exchange Agent at the address and
telephone number set forth in the Senior Subordinated Letter of Transmittal.
DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ON THE SENIOR SUBORDINATED
LETTER OF TRANSMITTAL, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE OR
TELEX NUMBER OTHER THAN THE ONES SET FORTH ON THE SENIOR SUBORDINATED LETTER
OF TRANSMITTAL, WILL NOT CONSTITUTE A VALID DELIVERY.
SOLICITATION OF TENDERS; FEES AND EXPENSES
The Company has not retained any dealer-manager in connection with the
Senior Subordinated Exchange Offer and will not make any payments to brokers,
dealers or others soliciting acceptances of the Senior Subordinated Exchange
Offer. The Company, however, will pay the Senior Subordinated Exchange Agent
reasonable and customary fees for its services and will reimburse it for its
reasonable out-of-pocket expenses in connection therewith. The Company will
also pay brokerage houses and other custodians, nominees and fiduciaries the
reasonable out-of-pocket expenses incurred by them in forwarding copies of
this and other related documents to the beneficial owners of the Old Senior
Subordinated Notes and in handling or forwarding tenders for their customers.
The estimated cash expenses to be incurred in connection with the Senior
Subordinated Exchange Offer will be paid by the Company and are estimated in
the aggregate to be approximately $ which includes fees and
expenses of the Senior Subordinated Exchange Agent, Senior Subordinated
Trustee, registration fees, accounting, legal, printing and related fees and
expenses.
No person has been authorized to give any information or to make any
representations in connection with the Senior Subordinated Exchange Offer
other than those contained in this Prospectus. If given or made, such
information or representations should not be relied upon as having been
authorized by the Company. Neither the delivery of this Prospectus nor any
exchange made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the Company since the
respective dates as of which information is given herein. The Senior
Subordinated Exchange Offer is not being made to (nor will tenders be accepted
from or on behalf of) holders of Old Senior Subordinated Notes in any
jurisdiction in which the making of the Senior Subordinated Exchange Offer or
the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, the Company may, at its discretion, take such action as
it may deem necessary to make the Senior Subordinated Exchange Offer in any
such jurisdiction and extend the Senior Subordinated Exchange Offer to holders
of Old Senior Subordinated Notes in such jurisdiction. In any jurisdiction in
which the securities laws or blue sky laws of which require the Senior
Subordinated Exchange Offer to be made by a licensed broker or dealer, the
Senior Subordinated Exchange Offer is being made on behalf of the Company by
one or more registered brokers or dealers which are licensed under the laws of
such jurisdiction.
TRANSFER TAXES
The Company will pay all transfer taxes, if any, applicable to the exchange
of Old Senior Subordinated Notes pursuant to the Senior Subordinated Exchange
Offer. If, however, certificates representing Senior Subordinated Exchange
Notes or Old Senior Subordinated Notes for principal amounts not tendered or
accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the registered holder of the Old Senior Subordinated
Notes tendered, or if tendered Old Senior Subordinated Notes are registered in
the name of any person other than the person signing the Senior Subordinated
Letter of Transmittal, or if a transfer tax is imposed for any reason other
than the exchange of Old Senior Subordinated Notes pursuant to the Senior
Subordinated Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered holder or any other persons) will be
payable by the tendering holder. If satisfactory evidence of payment of such
taxes or exemption therefrom is not submitted with the Senior Subordinated
Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
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ACCOUNTING TREATMENT
The Senior Subordinated Exchange Notes will be recorded at the carrying
value of the Old Senior Subordinated Notes as reflected in the Company's
accounting records on the date of the exchange. Accordingly, no gain or loss
for accounting purposes will be recognized by the Company upon the exchange of
Senior Subordinated Exchange Notes for Old Senior Subordinated Notes. Expenses
incurred in connection with the issuance of the Senior Subordinated Exchange
Notes will be amortized over the term of the Senior Subordinated Exchange
Notes.
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of Old Senior Subordinated Notes who do not exchange their Old
Senior Subordinated Notes for Senior Subordinated Exchange Notes pursuant to
the Senior Subordinated Exchange Offer will continue to be subject to the
restrictions on transfer of such Old Senior Subordinated Notes as set forth in
the legend thereon. Old Senior Subordinated Notes not exchanged pursuant to
the Senior Subordinated Exchange Offer will continue to remain outstanding in
accordance with their terms. In general, Old Senior Subordinated Notes may not
be offered or sold unless registered under the Securities Act, except pursuant
to an exemption from, or in a transaction not subject to, the Securities Act
and applicable state securities laws. The Company does not currently
anticipate that it will register the Old Senior Subordinated Notes under the
Securities Act.
Participation in the Senior Subordinated Exchange Offer is voluntary, and
holders of Old Senior Subordinated Notes should carefully consider whether to
participate. Holders of Old Senior Subordinated Notes are urged to consult
their financial and tax advisors in making their own decision on what action
to take.
As a result of the making of, and upon acceptance for exchange of all
validly tendered Old Senior Subordinated Notes pursuant to the terms of, this
Senior Subordinated Exchange Offer, the Company will have fulfilled a covenant
contained in the Senior Subordinated Registration Rights Agreement. Holders of
Old Senior Subordinated Notes who do not tender their Old Senior Subordinated
Notes in the Senior Subordinated Exchange Offer will continue to hold such Old
Senior Subordinated Notes and will be entitled to all the rights and
limitations applicable thereto under the Senior Subordinated Note Indenture,
except for any such rights under the Senior Subordinated Registration Rights
Agreement that by their terms terminate or cease to have further effectiveness
as a result of the making of this Senior Subordinated Exchange Offer. All
untendered Old Senior Subordinated Notes will continue to be subject to the
restrictions on transfer set forth in the Senior Subordinated Note Indenture.
To the extent that Old Senior Subordinated Notes are tendered and accepted in
the Senior Subordinated Exchange Offer, the trading market for untendered Old
Senior Subordinated Notes could be adversely affected.
The Company may in the future seek to acquire, subject to the terms of the
Senior Subordinated Note Indenture, untendered Old Senior Subordinated Notes
in open market or privately negotiated transactions, through subsequent
exchange offers or otherwise. The Company has no present plan to acquire any
Old Senior Subordinated Notes which are not tendered in the Senior
Subordinated Exchange Offer.
RESALE OF SENIOR SUBORDINATED EXCHANGE NOTES
The Company is making the Senior Subordinated Exchange Offer in reliance on
the position of the staff of the Commission as set forth in certain
interpretive letters addressed to third parties in other transactions.
However, the Company has not sought its own interpretive letter and there can
be no assurance that the Staff would make a similar determination with respect
to the Senior Subordinated Exchange Offer as it has in such interpretive
letters to third parties. Based on these interpretations by the staff, the
Company believes that the Senior Subordinated Exchange Notes issued pursuant
to the Senior Subordinated Exchange Offer in exchange for Old Senior
Subordinated Notes may be offered for resale, resold and otherwise transferred
by a Holder (other than any Holder who is a broker-dealer or an "affiliate" of
the Company within the meaning of Rule 405 of the Securities Act) without
further compliance with the registration and prospectus delivery requirements
of the
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Securities Act, provided that such Senior Subordinated Exchange Notes are
acquired in the ordinary course of such Holder's business and that such Holder
is not participating, and has no arrangement or understanding with any person
to participate, in a distribution (within the meaning of the Securities Act)
of such Senior Subordinated Exchange Notes. However, any holder who is an
"affiliate" of the Company or who has an arrangement or understanding with
respect to the distribution of the Senior Subordinated Exchange Notes to be
acquired pursuant to the Senior Subordinated Exchange Offer, or any broker-
dealer who purchased Old Senior Subordinated Notes from the Company to resell
pursuant to Rule 144A or any other available exemption under the Securities
Act (i) could not rely on the applicable interpretations of the staff and (ii)
must comply with the registration and prospectus delivery requirements of the
Securities Act. A broker-dealer who holds Old Senior Subordinated
Notes that were acquired for its own account as a result of market-making or
other trading activities may be deemed to be an "underwriter" within the
meaning of the Securities Act and must, therefore, deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale
of Senior Subordinated Exchange Notes. Each such broker-dealer that receives
Senior Subordinated Exchange Notes for its own account in exchange for Old
Senior Subordinated Notes, where such Old Senior Subordinated Notes were
acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge in the Senior Subordinated Letter
of Transmittal that it will deliver a prospectus in connection with any resale
of such Senior Subordinated Exchange Notes. Lehman Brothers Inc.'s ability to
make a market in the Senior Subordinated Exchange Notes will be subject to the
availability of a current market-maker prospectus. See "Plan of Distribution."
In addition, to comply with the securities laws of certain jurisdictions, if
applicable, the Senior Subordinated Exchange Notes may not be offered or sold
unless they have been registered or qualified for sale in such jurisdiction or
an exemption from registration or qualification is available and is complied
with. The Company has agreed, pursuant to the Senior Subordinated Registration
Rights Agreement and subject to certain specified limitations therein, to
register or qualify the Senior Subordinated Exchange Notes for offer or sale
under the securities or blue sky laws of such jurisdictions as any holder of
the Senior Subordinated Exchange Notes reasonably requests in writing. Such
registration or qualification may require the imposition of restrictions or
conditions (including suitability requirements for offerees or purchasers) in
connection with the offer or sale of any Senior Subordinated Exchange Notes.
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DESCRIPTION OF THE SENIOR EXCHANGE NOTES
GENERAL
The Old Senior Notes were issued and the Senior Exchange Notes will be
issued pursuant to an Indenture (the "Senior Note Indenture") between the
Company and State Street Bank and Trust Company, as trustee (the "Senior Note
Trustee"). The terms of the Senior Exchange Notes include those stated in the
Senior Note Indenture and those made part of the Senior Note Indenture by
reference to the Trust Indenture Act of 1939 (the "Trust Indenture Act"). The
Senior Exchange Notes are subject to all such terms, and Holders of Senior
Exchange Notes are referred to the Senior Note Indenture and the Trust
Indenture Act for a statement thereof. The following summary of the material
provisions of the Senior Note Indenture does not purport to be complete and is
qualified in its entirety by reference to the Senior Note Indenture, including
the definitions therein of certain terms used below. Copies of the proposed
form of Senior Note Indenture and Senior Registration Rights Agreement are
available as set forth below under "Available Information." The definitions of
certain terms used in the following summary are set forth below under "--
Certain Definitions." For purposes of this summary, the term "Company" refers
only to P&L Coal Holdings Corporation and not to any of its Subsidiaries.
On May 18, 1998, the Company issued $400.0 million aggregate principal
amount of Old Senior Notes under the Senior Note Indenture. The terms of the
Senior Exchange Notes are identical in all material respects to the Old Senior
Notes, except for certain transfer restrictions and registration and other
rights relating to the exchange of the Old Senior Notes for Senior Exchange
Notes. The Senior Note Trustee will authenticate and deliver Senior Exchange
Notes for original issue only in exchange for a like principal amount of Old
Senior Notes. Any Old Senior Notes that remain outstanding after the
consummation of the Senior Exchange Offer, together with the Senior Exchange
Notes, will be treated as a single class of securities under the Senior Note
Indenture. Accordingly, all references herein to specified percentages in
aggregate principal amount of the outstanding Senior Exchange Notes shall be
deemed to mean, at any time after the Senior Exchange Offer is consummated,
such percentage in aggregate principal amount of the Old Senior Notes and
Senior Exchange Notes then outstanding.
The Senior Exchange Notes will be general unsecured obligations of the
Company and will rank pari passu in right of payment with all current and
future senior Indebtedness of the Company, including the Senior Credit
Facilities. However, the Company and its Restricted Subsidiaries are parties
to Senior Credit Facilities and all borrowings thereunder are secured by a
first priority Lien on certain of the assets of the Company and its Restricted
Subsidiaries. As a result, the Senior Exchange Notes are effectively
subordinated to the Senior Credit Facilities to the extent of such collateral.
As of March 31, 1998, on a pro forma basis after giving effect to the
Transactions, $920.0 million would have been outstanding under the Senior
Credit Facilities. The Senior Note Indenture permits substantial additional
borrowings under the Senior Credit Facilities in the future. See "Risk
Factors--Risks Relating to the Notes--Ranking--Secured Indebtedness; Effective
Subordination."
The operations of the Company are conducted through its Subsidiaries and,
therefore, the Company is dependent upon the cash flow of its Subsidiaries to
meet its obligations, including its obligations under the Senior Exchange
Notes. The Senior Exchange Notes will be effectively subordinated to all
Indebtedness and other liabilities and commitments (including trade payables
and lease obligations) of the Company's Subsidiaries. Any right of the Company
to receive assets of any of its Subsidiaries upon the latter's liquidation or
reorganization (and the consequent right of the Holders of the Senior Exchange
Notes to participate in those assets) will be effectively subordinated to the
claims of that Subsidiary's creditors, except to the extent that the Company
is itself recognized as a creditor of such Subsidiary, in which case the
claims of the Company would still be subordinate to any security in the assets
of such Subsidiary and any indebtedness of such Subsidiary senior to that held
by the Company. As of March 31, 1998, on a pro forma basis giving effect to
the Transactions, the Company's Subsidiaries would have had approximately
$5,445.6 million of Indebtedness (including trade payables, land reclamation
and environmental liabilities, workers' compensation liabilities and retiree
health care liabilities). See "Risk Factors--Risks Relating to the Notes--
Holding Company Structure; Effective Subordination."
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All of the Company's Subsidiaries other than Citizens Power and its
Subsidiaries are Restricted Subsidiaries. However, under certain
circumstances, the Company will be able to designate current or future
Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries will not
be subject to many of the restrictive covenants set forth in the Senior Note
Indenture.
PRINCIPAL, MATURITY AND INTEREST
The Senior Notes are limited in aggregate principal amount to $550.0
million, of which $400.0 million was issued in the Offering, and will mature
on May 15, 2008. Interest on the Senior Exchange Notes will accrue at the rate
of 8 7/8% per annum and will be payable semi-annually in arrears on May 15 and
November 15, commencing on November 15, 1998, to Holders of record on the
immediately preceding May 1 and November 1. Additional Senior Notes may be
issued from time to time after the Offering, subject to the provisions of the
Senior Note Indenture described below under the caption "--Certain Covenants--
Incurrence of Indebtedness and Issuance of Preferred Stock." Interest on the
Senior Exchange Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from May 18, 1998. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months. Principal, premium, if any, and interest and Liquidated Damages, if
any, on the Senior Exchange Notes will be payable at the office or agency of
the Company maintained for such purpose within the City and State of New York
or, at the option of the Company, payment of interest and Liquidated Damages,
if any, may be made by check mailed to the Holders of the Senior Exchange
Notes at their respective addresses set forth in the register of Holders of
Senior Exchange Notes; provided that all payments of principal, premium,
interest and Liquidated Damages, if any, with respect to Senior Exchange Notes
the Holders of which have given wire transfer instructions to the Company will
be required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof. Until otherwise designated by the
Company, the Company's office or agency in New York will be the office of the
Senior Note Trustee maintained for such purpose. The Senior Exchange Notes
will be issued in denominations of $1,000 and integral multiples thereof.
SENIOR SUBSIDIARY GUARANTEES
The Company's payment obligations under the Senior Exchange Notes are
jointly and severally guaranteed (the "Senior Subsidiary Guarantees") by the
Senior Note Guarantors. The obligations of each Senior Note Guarantor under
its Senior Subsidiary Guarantee will be limited to the maximum amount that
would not constitute a fraudulent conveyance under applicable law. See "Risk
Factors--Risks Relating to the Notes--Fraudulent Conveyance Matters."
Notwithstanding the foregoing, no Subsidiary of the Company will be required
to endorse a Senior Subsidiary Guarantee unless such Subsidiary is required
to, and does, simultaneously execute a Guarantee of the Senior Credit
Facilities.
The Senior Exchange Notes will not be guaranteed by certain of the Company's
Domestic Subsidiaries or by any Foreign Subsidiaries of the Company. For the
fiscal year ended March 31, 1998, after giving effect to the Transactions, the
Non-Guarantor Subsidiaries accounted for 11% and 20% of pro forma revenues and
EBITDA, respectively, and, as of March 31, 1998, the Non-Guarantor
Subsidiaries accounted for 27% of pro forma assets. The claims of creditors
(including trade creditors) of any Non-Guarantor Subsidiary will generally
have priority as to the assets of such Subsidiaries over the claims of the
holders of the Senior Exchange Notes. As of March 31, 1998, after giving
effect to the Transactions, the amount of liabilities of such Non-Guarantor
Subsidiaries would have been approximately $1,578.4 million.
The Senior Note Indenture provides that no Senior Note Guarantor may
consolidate with or merge with or into (whether or not such Senior Note
Guarantor is the surviving Person), another corporation, Person or entity
whether or not affiliated with such Senior Note Guarantor unless (i) subject
to the provisions of the following paragraph, the Person formed by or
surviving any such consolidation or merger (if other than such Senior Note
Guarantor) assumes all the obligations of such Senior Note Guarantor pursuant
to a supplemental indenture in
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form and substance reasonably satisfactory to the Senior Note Trustee, under
the Senior Exchange Notes, the Senior Note Indenture and the Senior
Registration Rights Agreement; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and (iii) the Company
would be permitted by virtue of the Company's pro forma Fixed Charge Coverage
Ratio, immediately after giving effect to such transaction, to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the covenant described below under the caption "--Incurrence
of Indebtedness and Issuance of Preferred Stock."
The Senior Note Indenture provides that in the event of (a) a sale or other
disposition of all of the assets of any Senior Note Guarantor, by way of
merger, consolidation or otherwise, (b) a sale or other disposition of all of
the capital stock of any Senior Note Guarantor or (c) the designation of a
Senior Note Guarantor as an Unrestricted Subsidiary in accordance with the
terms of the Senior Note Indenture, then such Senior Note Guarantor (in the
event of a sale or other disposition, by way of such a merger, consolidation
or otherwise, of all of the capital stock of such Senior Note Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of such Senior Note Guarantor) will be
released and relieved of any obligations under its Senior Subsidiary
Guarantee; provided that the Net Proceeds of any such sale or other
disposition are applied in accordance with the applicable provisions of the
Senior Note Indenture and any such designation of a Senior Note Guarantor as
an Unrestricted Subsidiary complies with all applicable covenants. See
"Repurchase at the Option of Holders--Asset Sales."
"Senior Note Guarantors" means each of (i) the Company's Domestic
Subsidiaries at the date of the closing of the Acquisition, other than
Citizens Power and the Subsidiaries of Citizens Power at the date of the
Senior Note Indenture and (ii) any other subsidiary that executes a Senior
Subsidiary Guarantee in accordance with the provisions of the Senior Note
Indenture, and their respective successors and assigns.
OPTIONAL REDEMPTION
The Senior Exchange Notes will be subject to redemption at any time at the
option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice.
Prior to May 15, 2003, the Senior Exchange Notes will be redeemable at a
redemption price equal to 100% of the principal amount thereof plus the
applicable Senior Notes Make Whole Premium, plus, to the extent not included
in the Senior Notes Make Whole Premium, accrued and unpaid interest and
Liquidated Damages, if any, to the date of redemption. For purposes of the
foregoing, "Senior Notes Make Whole Premium" means, with respect to a Senior
Exchange Note, an amount equal to the greater of (a) 104.438% of the
outstanding principal amount of such Senior Exchange Note and (b) the excess
of (1) the present value of the remaining interest, premium, if any, and
principal payments due on such Senior Exchange Note as if such Senior Exchange
Note were redeemed on May 15, 2003, computed using a discount rate equal to
the Treasury Rate plus 50 basis points, over (2) the outstanding principal
amount of such Senior Exchange Note.
On or after May 15, 2003, the Senior Exchange Notes are redeemable at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable redemption date, if redeemed during the twelve-month period
beginning on May 15 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2003.......................................................... 104.438%
2004.......................................................... 102.958%
2005.......................................................... 101.479%
2006 and thereafter........................................... 100.000%
</TABLE>
Notwithstanding the foregoing, during the first 36 months after the date of
the closing of the Acquisition, the Company may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Senior Exchange Notes
issued under the Senior Note Indenture at a redemption price of 108.875% of
the principal
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amount thereof, plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the redemption date, with the net cash proceeds of one or
more Equity Offerings; provided that at least 65% of the aggregate principal
amount of Senior Exchange Notes issued remain outstanding immediately after
the occurrence of such redemption (excluding Senior Exchange Notes held by the
Company and its Subsidiaries); and provided, further, that such redemption
shall occur within 120 days of the date of the closing of such Equity
Offering.
SELECTION AND NOTICE
If less than all of the Senior Exchange Notes are to be redeemed or
purchased in an offer to purchase at any time, selection of Senior Exchange
Notes for redemption or purchase will be made by the Senior Note Trustee in
compliance with the requirements of the principal national securities
exchange, if any, on which the Senior Exchange Notes are listed, or, if the
Senior Exchange Notes are not so listed, on a pro rata basis, by lot or by
such method as the Senior Note Trustee shall deem fair and appropriate;
provided that no Senior Exchange Notes of $1,000 or less shall be redeemed in
part. Notices of redemption shall be mailed by first class mail at least 30
but not more than 60 days before the redemption date to each Holder of Senior
Exchange Notes to be redeemed at its registered address. Notices of redemption
may not be conditional. If any Senior Exchange Note is to be redeemed in part
only, the notice of redemption that relates to such Senior Exchange Note shall
state the portion of the principal amount thereof to be redeemed. A new Senior
Exchange Note in principal amount equal to the unredeemed portion thereof will
be issued in the name of the Holder thereof upon cancellation of the original
Senior Exchange Note. Senior Exchange Notes called for redemption become due
on the date fixed for redemption. On and after the redemption date, interest
ceases to accrue on Senior Exchange Notes or portions of them called for
redemption.
REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder of Senior Exchange
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Senior
Exchange 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 and Liquidated Damages
thereon, if any, to the date of purchase (the "Change of Control Payment").
Within ten days following any Change of Control, the Company will mail a
notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Senior Exchange
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
the Senior Note Indenture and described in such notice. The Company will
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 Senior
Exchange Notes as a result of a Change of Control.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment all Senior Exchange 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 Senior Exchange Notes or portions thereof so tendered and (3) deliver
or cause to be delivered to the Senior Note Trustee the Senior Exchange Notes
so accepted together with an Officers' Certificate stating the aggregate
principal amount of Senior Exchange Notes or portions thereof being purchased
by the Company. The Paying Agent will promptly mail to each Holder of Senior
Exchange Notes so tendered the Change of Control Payment for such Senior
Exchange Notes, and the Senior Note Trustee will promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Senior
Exchange Note equal in principal amount to any unpurchased portion of the
Senior Exchange Notes surrendered, if any; provided that each such new Senior
Exchange Note will be in a principal amount of $1,000 or an integral multiple
thereof. The Senior Note Indenture will provide that, prior to complying with
the provisions of this covenant, but in any event within 90 days following a
Change of
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Control, the Company will either repay all outstanding Senior Debt other than
the Senior Exchange Notes or obtain the requisite consents, if any, under all
agreements governing outstanding Senior Debt other than the Senior Exchange
Notes to permit the repurchase of Senior Exchange Notes required by this
covenant. The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
The Change of Control provisions described above will be applicable whether
or not any other provisions of the Senior Note Indenture are applicable.
Except as described above with respect to a Change of Control, the Senior Note
Indenture does not contain provisions that permit the Holders of the Senior
Exchange Notes to require that the Company repurchase or redeem the Senior
Exchange Notes in the event of a takeover, recapitalization or similar
transaction.
The Company's other senior indebtedness contains prohibitions on certain
events that would constitute a Change of Control. In addition, the exercise by
the Holders of Senior Exchange Notes of their right to require the Company to
repurchase the Senior Exchange Notes could cause a default under such other
senior indebtedness, even if the Change of Control itself does not, due to the
financial effect of such repurchases on the Company. Finally, the Company's
ability to pay cash to the Holders of Senior Exchange Notes upon a repurchase
may be limited by the Company's then existing financial resources. See "Risk
Factors--Risks Relating to the Notes--Limitation on Change of Control Offer."
The Senior Credit Facilities currently prohibit the Company from purchasing
any Senior Exchange Notes or Senior Subordinated Exchange Notes, and also
provide that certain change of control events with respect to the Company
would constitute a default thereunder. Any future credit agreements or other
agreements relating to Senior Debt to which the Company becomes a party may
contain similar restrictions and provisions. In the event a Change of Control
occurs at a time when the Company is prohibited from purchasing Senior
Exchange Notes, the Company could seek the consent of its lenders to the
purchase of Senior Exchange Notes or could attempt to refinance the borrowings
that contain such prohibition. If the Company does not obtain such a consent
or repay such borrowings, the Company will remain prohibited from purchasing
Senior Exchange Notes. In such case, the Company's failure to purchase
tendered Senior Exchange Notes would constitute an Event of Default under the
Senior Note Indenture which would, in turn, constitute a default under the
Senior Credit Facilities.
The Company will not be required to make a Change of Control Offer upon a
Change of Control 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 in the Senior Note Indenture applicable to a Change of Control Offer
made by the Company and purchases all Senior Exchange Notes validly tendered
and not withdrawn under such Change of Control Offer or if the Company
exercises its option to purchase the Senior Exchange Notes.
"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, (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, except
that a person shall be deemed to have "beneficial ownership" of all securities
that such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting Stock of
the Company (measured by voting power rather than number of shares) or (iv)
the first day on which a majority of the members of the Board of Directors of
the Company are not Continuing Directors.
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Subsidiaries taken as a whole.
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Although there is a developing body of case law interpreting the phrase
"substantially all," there is no precise established definition of the phrase
under applicable law. Accordingly, the ability of a Holder of Senior Exchange
Notes to require the Company to repurchase such Senior Exchange Notes as a
result of a sale, lease, transfer, conveyance or other disposition of less
than all of the assets of the Company and its Subsidiaries taken as a whole to
another Person or group may be uncertain.
"Continuing Directors" means, as of any date of determination, any member of
the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the closing of the Acquisition or (ii) was nominated
for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Principals" means Lehman Brothers Merchant Banking Partners II L.P., any of
its respective Affiliates and executive officers of the Company as of the date
of the closing of the Acquisition.
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) 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).
ASSET SALES
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless
(i) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value as determined in good faith by the Company (evidenced by a resolution of
the Board of Directors set forth in an Officers' Certificate delivered to the
Senior Note Trustee with respect to any Asset Sale determined to have a value
greater that $25.0 million) of the assets or Equity Interests issued or sold
or otherwise disposed of and (ii) at least 75% of the consideration therefor
received by the Company or such Subsidiary is in the form of cash, Cash
Equivalents or Marketable Securities; provided that the following amounts
shall be deemed to be cash: (w) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet), of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Senior Exchange Notes or any guarantee
thereof) that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such Restricted
Subsidiary from further liability, (x) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted
Subsidiary into cash within 180 days following the closing of such Asset Sale
(to the extent of the cash received), (y) any Designated Noncash Consideration
received by the Company or any of its Restricted Subsidiaries in such Asset
Sale; provided that the aggregate fair market value (as determined above) of
such Designated Noncash Consideration, taken together with the fair market
value at the time of receipt of all other Designated Noncash Consideration
received pursuant to this clause (y) less the amount of Net Proceeds
previously realized in cash from prior Designated Noncash Consideration is
less than 5% of Total Assets at the time of the receipt of such Designated
Noncash Consideration (with the fair market value of each item of Designated
Noncash Consideration being measured at the time received and without giving
effect to subsequent changes in value) and (z) Additional Assets received in
an exchange of assets transaction.
Within 360 days after the receipt of any cash Net Proceeds from an Asset
Sale, the Company or such Restricted Subsidiary, at its option, may apply such
cash Net Proceeds, at its option, (a) to repay Indebtedness of the Company or
any Restricted Subsidiary that is not subordinated in right of payment to
Indebtedness under a Credit Facility, (b) to the acquisition of a majority of
the assets of, or a majority of the Voting Stock of, another Permitted
Business, the making of a capital expenditure or the acquisition of other
assets or Investments that are used or useful in a Permitted Business or (c)
to apply the cash Net Proceeds from such Asset Sale to an Investment in
Additional Assets. Any cash Net Proceeds from Asset Sales that are not applied
or invested as provided in the first sentence of
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this paragraph will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will be
required to make an offer to all Holders of Senior Exchange Notes and all
holders of other Indebtedness that ranks pari passu with the Senior Exchange
Notes containing provisions similar to those set forth in the Senior Note
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets (an "Asset Sale Offer") to purchase the maximum principal
amount of Senior Exchange Notes and such other Indebtedness that may be
purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of purchase, in accordance
with the procedures set forth in the Senior Note Indenture and such other
Indebtedness. To the extent that any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Company may use such Excess Proceeds for any
purpose not otherwise prohibited by the Senior Note Indenture. If the
aggregate principal amount of Senior Exchange Notes and such other
Indebtedness tendered into such Asset Sale Offer surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Senior Note Trustee shall
select the Senior Exchange Notes and such other Indebtedness to be purchased
on a pro rata basis. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero.
CERTAIN COVENANTS
RESTRICTED PAYMENTS
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or distribution on
account of the Company's or any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the Company's or any of
its Restricted Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value (including, without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company; (iii) make any
payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the
Senior Exchange Notes or any Senior Subsidiary Guarantee, except a payment of
interest or principal at Stated Maturity or Indebtedness permitted under
clause (viii) of the covenant described under "--Incurrence of Indebtedness
and Issuance of Preferred Stock;" or (iv) make any Restricted Investment (all
such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless, at the time
of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of the covenant
described below under caption "Incurrence of Indebtedness and Issuance of
Preferred Stock;" and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Subsidiaries after
the date of the closing of the Acquisition (excluding Restricted Payments
permitted by clauses (ii), (iii), (iv), (v), (ix), (x) and (xii) of the
next succeeding paragraph), is less than the sum, without duplication, of
(i) 50% of the Consolidated Net Income of the Company for the period (taken
as one accounting period) from the beginning of the first fiscal quarter
commencing after the date of the closing of the Acquisition to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is a deficit, less
100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds or
the fair market value of property other than cash received by the Company
since the date of the closing of the Acquisition as a contribution to its
common equity capital or from the
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issue or sale of Equity Interests of the Company (other than Disqualified
Stock) or from the issue or sale of Disqualified Stock or debt securities
of the Company that have been converted into such Equity Interests (other
than Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of the Company), plus (iii) to the extent
that either any Existing Citizens Power Investment or any Restricted
Investment that reduced the amount available for Restricted Payments under
this clause (c) is sold for cash or otherwise liquidated or repaid for cash
or any dividend or payment is received by the Company or a Restricted
Subsidiary after the date of the closing of the Acquisition in respect of
such Investment, 100% of the amount of Net Proceeds or dividends or
payments (including the fair market value of property) received in
connection therewith, up to the amount of the Existing Citizens Power
Investment on the date of the closing of the Acquisition or the Restricted
Investment that reduced this clause (c), as the case may be, and thereafter
50% of the amount of Net Proceeds or dividends or payments (including the
fair market value of property) received in connection therewith (except
that the amount of dividends or payments received in respect of payments of
Obligations in respect of such Investments, such as taxes, shall not
increase the amounts under this clause (c)), plus (iv) to the extent that
any Unrestricted Subsidiary of the Company is redesignated as a Restricted
Subsidiary after the date of the closing of the Acquisition, 100% of the
fair market value of the Company's Investment in such Subsidiary as of the
date of such redesignation up to the amount of the Restricted Investments
made in such Subsidiary that reduced this clause (c) and 50% of the excess
of the fair market value of the Company's Investment in such Subsidiary as
of the date of such redesignation over (1) the amount of the Restricted
Investment that reduced this clause (c) and (2) any amounts that increased
the amount available as a Permitted Investment; provided, further, that if
Citizens Power or any of its Subsidiaries is designated as a Restricted
Subsidiary, the amount of the fair market value of the Investment therein
on the date of the Senior Note Indenture shall also be credited to this
clause (c); provided, further, that any amounts that increase this clause
(c) shall not duplicatively increase amounts available as Permitted
Investments.
The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would
have complied with the provisions of the Senior Note Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary of
the Company) of, other Equity Interests of the Company (other than any
Disqualified Stock); provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from
clause (c)(ii) of the preceding paragraph;
(iii) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness with the net cash proceeds from an incurrence
of Permitted Refinancing Indebtedness;
(iv) dividends or distributions by a Restricted Subsidiary of the
Company so long as, in the case of any dividend or distribution payable
on or in respect of any class or series of securities issued by a
Restricted Subsidiary, the Company or a Restricted Subsidiary receives
at least its pro rata share of such dividend or distribution in
accordance with its Equity Interests in such class or series of
securities;
(v) Investments in Unrestricted Subsidiaries having an aggregate fair
market value not to exceed the amount, at the time of such Investment,
substantially concurrently contributed in cash or Cash Equivalents to
the common equity capital of the Company after the date of the closing
of the Acquisition; provided that any such amount contributed shall be
excluded from the calculation made pursuant to clause (c) above;
(vi) the payment of dividends on the Company's Common Stock,
following the first public offering of the Company's Common Stock after
the date of the closing of the Acquisition, of up to 6% per annum of
the net proceeds received by the Company in such public offering, other
than public offerings with respect to the Company's Common Stock
registered on Form S-8;
(vii) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted
Subsidiary of the Company held by any present or former employee
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or director of the Company (or any of its Restricted Subsidiaries)
pursuant to any management equity subscription agreement or stock
option agreement or any other management or employee benefit plan in
effect as of the date of the closing of the Acquisition; provided that
(A) the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $2.0 million in
any twelve-month period (with unused amounts in any calendar year being
carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso) of $5.0 million in any calendar
year); provided further that such amount in any calendar year may be
increased by an amount not to exceed (x) the cash proceeds from the
sale of Equity Interests of the Company or a Restricted Subsidiary to
members of management and directors of the Company and its Subsidiaries
that occurs after the date of the closing of the Acquisition, plus (y)
the cash proceeds of key-man life insurance policies received by the
Company and its Restricted Subsidiaries after the date of the closing
of the Acquisition, less (z) the amount of any Restricted Payments
previously made pursuant to clauses (x) and (y) of this subparagraph
(vii); and, provided further, that cancellation of Indebtedness owing
to the Company from members of management of the Company or any of its
Restricted Subsidiaries in connection with a repurchase of Equity
Interests of the Company or a Restricted Subsidiary will not be deemed
to constitute a Restricted Payment for purposes of this covenant or any
other provision of the Senior Note Indenture and (B) no Default or
Event of Default shall have occurred and be continuing immediately
after such transaction;
(viii) repurchases of Equity Interests deemed to occur upon exercise
of stock options if such Equity Interests represent a portion of the
exercise price of such options;
(ix) the repurchase, redemption or other acquisition or retirement
for value of the Senior Subordinated Exchange Notes pursuant to the
provisions described under the caption "Description of the Senior
Subordinated Exchange Notes--Optional Redemption;" provided that the
amount of any Equity Offering used to effect such a repurchase,
redemption or other acquisition or retirement for value shall be
excluded from the calculation made pursuant to clause (c) above;
(x) the repurchase, redemption or other acquisition or retirement for
value of the Senior Subordinated Exchange Notes pursuant to the
provisions described under the caption "Description of the Senior
Subordinated Exchange Notes--Repurchase at the Option of Holders--
Change of Control" and "Description of the Senior Subordinated Exchange
Notes--Repurchase at the Option of Holders--Asset Sales;" provided
that, as of the date of such repurchase, redemption or other
acquisition or retirement for value, no Default or Event of Default
shall have occurred and be continuing or, with the passage of time,
would occur as a consequence thereof;
(xi) the repurchase, redemption or other acquisition or retirement
for value of the Senior Subordinated Exchange Notes pursuant to the
provisions described under the caption "Description of the Senior
Subordinated Exchange Notes--Escrow of Proceeds; Special Mandatory
Redemption of Senior Subordinated Exchange Notes;" provided that the
amount of any such repurchase, redemption, acquisition or retirement
shall be excluded from the calculation made pursuant to clause (c)
above; and
(xii) other Restricted Payments not otherwise prohibited by this
covenant in an aggregate amount not to exceed $25.0 million under this
clause (xii).
All of the Company's Subsidiaries other than Citizens Power and its
Subsidiaries are Restricted Subsidiaries. The Board of Directors may designate
any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation
would not cause a Default. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated will be deemed
to be Restricted Payments at the time of such designation and will reduce the
amount available for Restricted Payments under the first paragraph of this
covenant. All such outstanding Investments will be deemed to constitute
Investments in an amount equal to the fair market value of such Investments at
the time of such designation. Such designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
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If, at any time, any Unrestricted Subsidiary would fail to meet the
requirements in the definition of "Unrestricted Subsidiary" as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of the Senior Note Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of
such date under the covenant described under the caption "Incurrence of
Indebtedness and Issuance of Preferred Stock," the Company shall be in default
of such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i)
such Indebtedness is permitted under the covenant described under the caption
"--Incurrence of Indebtedness and Issuance of Preferred Stock," calculated on
a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period, and (ii) no Default or Event of Default would
be in existence following such designation.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any noncash Restricted Payment or any adjustment made
pursuant to paragraph (c) of this covenant shall be determined by the Board of
Directors whose resolution with respect thereto shall be delivered to the
Senior Note Trustee, such determination to be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $25.0 million. Not later
than the date of making any Restricted Payment, the Company shall deliver to
the Senior Note Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by the covenant "Restricted Payments" were computed.
If any Restricted Investment is sold or otherwise liquidated or repaid or
any dividend or payment is received by the Company or a Restricted Subsidiary
and such amounts may be credited to clause (c) above, then such amounts will
be credited only to the extent of amounts not otherwise included in
Consolidated Net Income and that do not otherwise increase the amount
available as a Permitted Investment.
INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt) and that the Company will not issue any
Disqualified Stock and will not permit any of its Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company may incur
Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock
and the Company's Restricted Subsidiaries may incur Indebtedness or issue
Disqualified Stock or preferred stock if the Fixed Charge Coverage Ratio for
the Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which
such additional Indebtedness is incurred or such Disqualified Stock or
preferred stock is issued would have been at least 2.0 to 1.0, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock or preferred stock had been issued, as the case may be, at
the beginning of such four-quarter period.
The provisions of the first paragraph of this covenant will not apply to the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company of term Indebtedness under Credit
Facilities (and the Guarantee thereof by the Senior Note Guarantors);
provided that the aggregate principal amount of all term Indebtedness
outstanding under this clause (i) after giving effect to such incurrence
does not exceed an amount equal to $920.0 million;
(ii) the incurrence by the Company of revolving credit Indebtedness and
letters of credit (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company
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and its Restricted Subsidiaries thereunder) under Credit Facilities (and
the Guarantee thereof by the Senior Note Guarantors); provided that the
aggregate principal amount of all revolving credit Indebtedness outstanding
under this clause (ii) after giving effect to such incurrence does not
exceed an amount equal to $480.0 million;
(iii) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(iv) the incurrence by the Company, the Senior Note Guarantors and the
Senior Subordinated Note Guarantors of Indebtedness represented by the
Senior Exchange Notes, the Senior Subordinated Exchange Notes, the Senior
Subsidiary Guarantees and the Subordinated Subsidiary Guarantees limited in
aggregate principal amount, without duplication, to amounts outstanding
under the Senior Note Indenture and the Senior Subordinated Note Indenture
as of their respective dates;
(v) (A) the guarantee by the Company or any of the Senior Note Guarantors
of Indebtedness of the Company or a Restricted Subsidiary of the Company or
(B) the incurrence of Indebtedness of a Restricted Subsidiary to the extent
that such Indebtedness is supported by a letter of credit, in each case
that was permitted to be incurred by another provision of this covenant;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness (including Capital Lease Obligations) to finance the
acquisition (including by direct purchase, by lease or indirectly by the
acquisition of the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of such acquisition) or improvement of property
(real or personal) in an aggregate principal amount which, when aggregated
with the principal amount of all other Indebtedness then outstanding
pursuant to this clause (vi) and including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (vi), does not exceed an amount equal to
5% of Total Assets at the time of such incurrence;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted by the Senior Note Indenture
to be incurred under the first paragraph hereof or clauses (iii), (iv) or
(vii) of this paragraph;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Senior Subordinated Exchange Notes and (ii)(A) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary thereof and (B) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary thereof shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(viii);
(ix) the incurrence by the Company or any of its Restricted Subsidiaries
of Hedging Obligations that are incurred in the ordinary course of business
for the purpose of risk management and not for the purpose of speculation;
(x) the incurrence by the Company's Unrestricted Subsidiaries of Non-
Recourse Debt, provided, however, that if any such Indebtedness ceases to
be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (x), and
the issuance of preferred stock by Unrestricted Subsidiaries;
(xi) the incurrence of Indebtedness solely in respect of performance,
surety and similar bonds or completion or performance guarantees
(including, without limitation, performance guarantees pursuant to coal
supply agreements or equipment leases), to the extent that such incurrence
does not result in the incurrence of any obligation for the payment of
borrowed money to others;
(xii) the incurrence of Indebtedness arising from agreements of the
Company or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred
or
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assumed in connection with the disposition of any business, assets or a
Subsidiary; provided, however that (i) such Indebtedness is not reflected
on the balance sheet of the Company or any Restricted Subsidiary
(contingent obligations referred to in a footnote to financial statements
and not otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this clause (i)) and (ii)
the maximum assumable liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds including noncash proceeds (the fair
market value of such noncash proceeds being measured at the time received
and without giving effect to any subsequent changes in value) actually
received by the Company and its Restricted Subsidiaries in connection with
such disposition;
(xiii) the guarantee by the Company or any of the Senior Note Guarantors
of additional Indebtedness relating to Black Beauty Coal Company not to
exceed $50.0 million in aggregate principal amount outstanding at any one
time under this clause (xiii);
(xiv) the incurrence of Indebtedness relating to the Bengalla Joint
Venture or the Warkworth Associates Joint Venture in an aggregate amount
not to exceed $100.0 million in aggregate principal amount outstanding at
any one time under this clause (xiv); and
(xv) the incurrence by the Company or any of its Restricted Subsidiaries
of additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (xv), not to exceed $250.0
million.
The Senior Note Indenture also provides that the Company will not incur, and
will not permit its Restricted Subsidiaries to incur, any Indebtedness
(including Permitted Debt) that is contractually subordinated in right of
payment to any other Indebtedness of the Company or such Restricted Subsidiary
unless such Indebtedness is also contractually subordinated in right of
payment to the Senior Exchange Notes, or the Senior Subsidiary Guarantees, as
the case may be, on substantially identical terms; provided, however, that no
Indebtedness of the Company or any Restricted Subsidiary shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of
the Company or any Restricted Subsidiary solely by virtue of being unsecured.
For purposes of determining compliance with this covenant, in the event that
an item of Indebtedness meets the criteria of more than one of the categories
of Permitted Debt described in clauses (i) through (xv) above or is entitled
to be incurred pursuant to the first paragraph of this covenant, the Company
shall, in its sole discretion, classify or reclassify such item of
Indebtedness in any manner that complies with this covenant. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be deemed
to be an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this covenant; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued.
LIENS
The Senior Note Indenture provides that the Company will not and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or otherwise cause or suffer to exist or become effective any
Lien of any kind (other than Permitted Liens) upon any of their property or
assets, now owned or hereafter acquired, unless all payments due under the
Senior Note Indenture and the Senior Exchange Notes are secured on an equal
and ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien.
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary that is not a Senior
Note Guarantor to (i)(a) pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries (1) on
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its Capital Stock or (2) with respect to any other interest or participation
in, or measured by, its profits, or (b) pay any indebtedness owed to the
Company or any of its Restricted Subsidiaries, (ii) make loans or advances to
the Company or any of its Restricted Subsidiaries or (iii) transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries.
However, the foregoing restrictions will not apply to encumbrances or
restrictions existing under or by reason of (a) Existing Indebtedness as in
effect on the date of the closing of the Acquisition, (b) the Senior Credit
Facilities as in effect as of the date of the closing of the Acquisition, and
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacement or refinancings are no more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in the Senior Credit Facilities as in effect on the date of the
closing of the Acquisition, (c) the Senior Note Indenture, the Senior
Subordinated Note Indenture, the Senior Exchange Notes and the Senior
Subordinated Exchange Notes, (d) applicable law or any applicable rule,
regulation or order, (e) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the
extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of the
Senior Note Indenture to be incurred, (f) customary non-assignment provisions
in leases and other agreements entered into in the ordinary course of business
and consistent with past practices, (g) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions
of the nature described in clause (iii) above on the property so acquired, (h)
any agreement for the sale of a Restricted Subsidiary that restricts
distributions by that Restricted Subsidiary pending its sale, (i) Permitted
Refinancing Indebtedness, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the agreements
governing the Indebtedness being refinanced, (j) secured Indebtedness
otherwise permitted to be incurred pursuant to the provisions of the covenant
described above under the caption "--Liens" that limits the right of the
debtor to dispose of the assets securing such Indebtedness, (k) provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements and other similar agreements entered into in the ordinary
course of business, (l) restrictions on cash or other deposits or net worth
imposed by customers or lessors under contracts or leases entered into in the
ordinary course of business and (m) any encumbrances or restrictions imposed
by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (a) through (l) above,
provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, in the
good faith judgment of the Company's Board of Directors, not materially more
restrictive in the aggregate with respect to such dividend and other payment
restrictions than those (considered as a whole) contained in the dividend or
other payment restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Senior Note Indenture provides that the Company may not consolidate or
merge with or into (whether or not the Company is the surviving corporation),
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity unless (i) the Company
is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia; (ii) the
entity or Person formed by or surviving any such consolidation or merger (if
other than the Company) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of the Company under the Senior Registration
Rights Agreement, the Senior Exchange Notes and the Senior Note Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Senior Note Trustee; (iii) immediately after such transaction no Default or
Event of Default exists; and (iv) except in the case of a
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merger of the Company with or into a Wholly Owned Restricted Subsidiary of the
Company, immediately after giving pro forma effect to such transaction, as if
such transaction had occurred at the beginning of the applicable four-quarter
period, (A) the entity surviving such consolidation or merger would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of the
covenant described above under the caption "--Incurrence of Indebtedness and
Issuance of Preferred Stock" or (B) the Fixed Charge Coverage Ratio for the
Company or the entity or Person formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made would,
immediately after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period, not be less
than such Fixed Charge Coverage Ratio for the Company and its Restricted
Subsidiaries immediately prior to such transaction. The Senior Note Indenture
also provides that the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. The provisions of this covenant will not be
applicable to a sale, assignment, transfer, conveyance or other disposition of
assets between or among the Company and its Restricted Subsidiaries.
Notwithstanding the foregoing clause (iv), (i) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company and (ii) the Company may merge with an Affiliate that
has no significant assets or liabilities and was formed solely for the purpose
of changing the jurisdiction of organization of the Company in another State
of the United States or the form of organization of the Company so long as the
amount of Indebtedness of the Company and its Restricted Subsidiaries is not
increased thereby and provided that the successor assumes all the obligations
of the Company under the Senior Registration Rights Agreement, the Senior
Exchange Notes and the Senior Note Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Senior Note Trustee.
TRANSACTIONS WITH AFFILIATES
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an
"Affiliate Transaction") involving aggregate payments or consideration in
excess of $5.0 million, unless (i) such Affiliate Transaction is on terms that
are materially no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person and (ii) the Company delivers to the Senior Note Trustee (a) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the members
of the Board of Directors and (b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $25.0 million, an opinion as to the fairness to the Holders of such
Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, the following items shall not be deemed to be
Affiliate Transactions: (i) any employment agreement or other compensation
plan or arrangement for employees entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company or such Restricted Subsidiary, (ii)
transactions between or among the Company and/or its Restricted Subsidiaries,
(iii) payment of reasonable fees to officers, directors, employees or
consultants of the Company, (iv) Restricted Payments that are permitted by,
and Investments that are not prohibited by, the provisions of the Senior Note
Indenture described above under the caption "--Restricted Payments," (v)
indemnification payments made to officers, directors and employees of the
Company or any Restricted Subsidiary pursuant to charter, bylaw, statutory or
contractual provisions; (vi) the payment of customary annual management,
consulting and advisory fees and related expenses to Lehman Merchant Bank and
its Affiliates; (vii) payments by the Company or any of its Restricted
Subsidiaries to Lehman Merchant Bank and its Affiliates
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made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures which payments are
approved by a majority of the Board of Directors of the Company in good faith;
(viii) the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under the terms of, any
stockholders' agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the date of
the closing of the Acquisition and any similar agreements which it may enter
into thereafter; provided, however, that the existence of, or the performance
by the Company or any of its Restricted Subsidiaries of obligations under any
future amendment to any such existing agreement or under any similar agreement
entered into after the date of the closing of the Acquisition shall only be
permitted by this clause (viii) to the extent that the terms of any such
amendment or new agreement are not otherwise disadvantageous to the Holders in
any material respect; (ix) transactions pursuant to the terms of the
Transaction Documents in effect on the date of the closing of the Acquisition;
(x) transactions with Unrestricted Subsidiaries, customers, clients,
suppliers, joint venture partners or purchasers or sellers of goods or
services, in each case in the ordinary course of business (including, without
limitation, pursuant to joint venture agreements) and otherwise in compliance
with the terms of the Senior Note Indenture which are, in the aggregate
(taking into account all the costs and benefits associated with such
transactions), materially no less favorable to the Company or its Restricted
Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person, in the reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party; (xi) guarantees of performance by the Company and its
Restricted Subsidiaries of Unrestricted Subsidiaries in the ordinary course of
business, except for guarantees of Obligations in respect of borrowed money;
and (xii) pledges of Equity Interests of Unrestricted Subsidiaries for the
benefit of lenders of Unrestricted Subsidiaries.
ADDITIONAL SENIOR SUBSIDIARY GUARANTEES
The Senior Note Indenture provides that if the Company or any of its
Domestic Subsidiaries shall acquire or create another Domestic Subsidiary
after the date of the Senior Note Indenture and such Domestic Subsidiary
provides a guarantee of the Senior Credit Facilities, then such newly acquired
or created Domestic Subsidiary shall execute a supplemental indenture in form
and substance satisfactory to the Senior Note Trustee providing that such
Domestic Subsidiary shall become a Senior Note Guarantor under the Senior Note
Indenture, provided, however, this covenant shall not apply to any Domestic
Subsidiary that has been properly designated as an Unrestricted Subsidiary in
accordance with the Senior Note Indenture for so long as it continues to
constitute an Unrestricted Subsidiary.
BUSINESS ACTIVITIES
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any business other than Permitted Businesses, except to such extent
as would not be material to the Company and its Restricted Subsidiaries taken
as a whole.
PAYMENTS FOR CONSENT
The Senior Note Indenture provides that neither the Company nor any of its
Restricted Subsidiaries will, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
of any Senior Exchange Notes for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of the Senior Note Indenture or
the Senior Exchange Notes unless such consideration is offered to be paid or
is paid to all Holders of the Senior Exchange Notes that consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
REPORTS
The Senior Note Indenture provides that, whether or not required by the
rules and regulations of the Commission, so long as any Senior Exchange Notes
are outstanding, the Company will furnish to the Holders of Senior Exchange
Notes (i) all quarterly and annual financial information that would be
required to be contained
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in a filing with the Commission on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries (showing in reasonable detail, either on the face of the
financial statements or in the footnotes thereto and in Management's
Discussion and Analysis of Financial Condition and Results of Operations, the
financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company) and, with respect
to the annual information only, a report thereon by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file
such reports, in each case within the time periods specified in the
Commission's rules and regulations. In addition, following the consummation of
the exchange offer contemplated by the Senior Registration Rights Agreement,
whether or not required by the rules and regulations of the Commission, the
Company will file a copy of all such information and reports with the
Commission for public availability within the time periods specified in the
Commission's rules and regulations (unless the Commission will not accept such
a filing) and make such information available to securities analysts and
prospective investors upon request. In addition, the Company and the Senior
Note Guarantors have agreed that, for so long as any Senior Exchange Notes
remain outstanding, they will furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
EVENTS OF DEFAULT AND REMEDIES
The Senior Note Indenture provides that each of the following constitutes an
Event of Default: (i) default for 30 days in the payment when due of interest
on, or Liquidated Damages, if any, with respect to, the Senior Exchange Notes;
(ii) default in payment when due of the principal of or premium, if any, on
the Senior Exchange Notes; (iii) failure by the Company or any of its
Subsidiaries to make the offer required or to purchase any of the Senior
Exchange Notes as required under the provisions described under the captions
"--Change of Control," or "--Asset Sales;" (iv) failure by the Company or any
of its Subsidiaries for 30 days after notice to comply with the provisions of
the covenants entitled "--Restricted Payments" or "--Incurrence of
Indebtedness and Issuance of Preferred Stock;" or failure by the Company or
any of its Subsidiaries for 60 days after notice to comply with any of its
other agreements in the Senior Note Indenture or the Senior Exchange Notes;
(v) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of the Senior Note Indenture, which default results in the
acceleration of such Indebtedness prior to its express maturity and the
principal amount of any such Indebtedness aggregates $50.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries or any group
of Restricted Subsidiaries that, taken as a whole, would be a Significant
Subsidiary to pay final judgments aggregating in excess of $50.0 million,
which judgments are not paid, discharged or stayed for a period of 60 days;
(vii) except as permitted by the Senior Note Indenture, any Senior Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Senior Note Guarantor, or any Person acting on behalf of any Senior Note
Guarantor, shall deny or disaffirm its obligations under its Senior Subsidiary
Guarantee; (viii) certain events of bankruptcy or insolvency with respect to
the Company, any of its Significant Subsidiaries that are Restricted
Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole,
would be a Significant Subsidiary; and (ix) any failure of the Company to
deposit the required amounts into the Escrow Account pursuant to the Escrow
Letter or any failure of the proceeds of the Escrow Account to be applied as
required under the Escrow Letter.
If any Event of Default occurs and is continuing, the Senior Note Trustee or
the Holders of at least 25% in principal amount of the then outstanding Senior
Exchange Notes may declare all the Senior Exchange Notes to be due and payable
immediately; provided, that so long as any Indebtedness permitted to be
incurred pursuant to the Senior Credit Facilities shall be outstanding, such
acceleration shall not be effective until the earlier of (i) an acceleration
of any such Indebtedness under the Senior Credit Facilities or (ii) five
business days after receipt by
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the Company of written notice of such acceleration of the Senior Exchange
Notes. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, 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, all outstanding Senior Exchange Notes will become due
and payable without further action or notice. Holders of the Senior Exchange
Notes may not enforce the Senior Note Indenture or the Senior Exchange Notes
except as provided in the Senior Note Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Senior Exchange Notes may direct the Senior Note Trustee in its exercise of
any trust or power. The Senior Note Trustee may withhold from Holders of the
Senior Exchange Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Senior Exchange Notes
pursuant to the optional redemption provisions of the Senior Note Indenture,
an equivalent premium shall also become and be immediately due and payable to
the extent permitted by law upon the acceleration of the Senior Exchange
Notes. If an Event of Default occurs prior to May 15, 2003 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding paying the premium upon redemption of
the Senior Exchange Notes prior to May 15, 2003, then the premium specified in
the Senior Note Indenture shall also become immediately due and payable to the
extent permitted by law upon the acceleration of the Senior Exchange Notes.
The Holders of a majority in aggregate principal amount of the Senior
Exchange Notes then outstanding by notice to the Senior Note Trustee may on
behalf of the Holders of all of the Senior Exchange Notes waive any existing
Default or Event of Default and its consequences under the Senior Note
Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Senior Exchange Notes.
The Company is required to deliver to the Senior Note Trustee annually a
statement regarding compliance with the Senior Note Indenture, and the Company
is required upon becoming aware of any Default or Event of Default, to deliver
to the Senior Note Trustee a statement specifying such Default or Event of
Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company
or any Person controlling such Person, as such, shall have any liability for
any obligations of the Company under the Senior Exchange Notes, the Senior
Subsidiary Guarantees, the Senior Note Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
of Senior Exchange Notes by accepting a Senior Exchange Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Exchange 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.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Senior Exchange Notes
("Legal Defeasance") except for (i) the rights of Holders of outstanding
Senior Exchange Notes to receive payments in respect of the principal of,
premium, if any, and interest and Liquidated Damages, if any, on such Senior
Exchange Notes when such payments are due from the trust referred to below,
(ii) the Company's obligations with respect to the Senior Exchange Notes
concerning issuing temporary Senior Exchange Notes, registration of Senior
Exchange Notes, mutilated, destroyed, lost or stolen Senior Exchange Notes and
the maintenance of an office or agency for payment and money for security
payments held in trust, (iii) the rights, powers, trusts, duties and
immunities of the Senior Note Trustee, and the Company's obligations in
connection therewith and (iv) the Legal Defeasance provisions of the Senior
Note
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Indenture. In addition, the Company may, at its option and at any time, elect
to have the obligations of the Company released with respect to certain
covenants that are described in the Senior Note Indenture ("Covenant
Defeasance") and thereafter any omission to comply with such obligations shall
not constitute a Default or Event of Default with respect to the Senior
Exchange Notes. In the event Covenant Defeasance occurs, certain events (not
including non-payment, bankruptcy, receivership, rehabilitation and insolvency
events) described under "Events of Default" will no longer constitute an Event
of Default with respect to the Senior Exchange Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i) the
Company must irrevocably deposit with the Senior Note Trustee, in trust, for
the benefit of the Holders of the Senior Exchange Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest and Liquidated Damages, if any, on the outstanding Senior Exchange
Notes on the stated maturity or on the applicable redemption date, as the case
may be, and the Company must specify whether the Senior Exchange Notes are
being defeased to maturity or to a particular redemption date; (ii) in the
case of Legal Defeasance, the Company shall have delivered to the Senior Note
Trustee an opinion of counsel in the United States reasonably acceptable to
the Senior Note Trustee confirming that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (B)
since the date of the Senior Note 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 shall confirm that, the Holders of the
outstanding Senior Exchange 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; (iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Senior Note Trustee an opinion of counsel in the United
States reasonably acceptable to the Senior Note Trustee confirming that the
Holders of the outstanding Senior Exchange 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; (iv) no Default or Event of Default
shall have occurred and be continuing on the date of such deposit (other than
a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) or insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the
effective date of such defeasance (v) such Legal Defeasance or Covenant
Defeasance will not result in a breach or violation of, or constitute a
default under any material agreement or instrument (other than the Senior Note
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; (vi) the Company must
have delivered to the Senior Note Trustee, at or prior to the effective date
of such defeasance, an opinion of counsel to the effect that at the effective
date of such defeasance, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally; (vii) the Company must deliver to the
Senior Note Trustee an Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the Holders of Senior
Exchange Notes over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others; and (viii) the Company must deliver to the Senior Note Trustee an
Officers' Certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A Holder may transfer or exchange Senior Exchange Notes in accordance with
the Senior Note Indenture. The Registrar and the Senior Note Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Senior Note Indenture. The Company is
not required to transfer or exchange any Senior Exchange Note selected for
redemption. Also, the Company is not required to transfer or exchange any
Senior Exchange Note for a period of 15 days before a selection of Senior
Exchange Notes to be redeemed.
The registered Holder of a Senior Exchange Note will be treated as the owner
of it for all purposes.
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AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Senior Note
Indenture or the Senior Exchange Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the
Senior Exchange Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Senior Exchange Notes), and any existing default or
compliance with any provision of the Senior Note Indenture or the Senior
Exchange Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Senior Exchange Notes (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Senior Exchange Notes).
Without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Senior Exchange Notes held by a non-consenting Holder):
(i) reduce the principal amount of Senior Exchange Notes whose Holders must
consent to an amendment, supplement or waiver, (ii) reduce the principal of or
change the fixed maturity of any Senior Exchange Note or alter the provisions
with respect to the redemption of the Senior Exchange Notes (other than
provisions relating to the covenants described above under the caption "--
Repurchase at the Option of Holders"), (iii) reduce the rate of or change the
time for payment of interest on any Senior Exchange Note, (iv) waive a Default
or Event of Default in the payment of principal of or premium, if any, or
interest on the Senior Exchange Notes (except a rescission of acceleration of
the Senior Exchange Notes by the Holders of at least a majority in aggregate
principal amount of the Senior Exchange Notes and a waiver of the payment
default that resulted from such acceleration), (v) make any Senior Exchange
Note payable in money other than that stated in the Senior Exchange Notes,
(vi) make any change in the provisions of the Senior Note Indenture relating
to waivers of past Defaults or the rights of Holders of Senior Exchange Notes
to receive payments of principal of or premium, if any, or interest on the
Senior Exchange Notes, (vii) waive a redemption payment with respect to any
Senior Exchange Note (other than a payment required by one of the covenants
described above under the caption "--Repurchase at the Option of Holders"),
(viii) make any change in the foregoing amendment and waiver provisions or
(ix) release any Senior Subordinated Note Guarantor from any of its
obligations under its Subordinated Subsidiary Guarantee or this Senior
Subordinated Note Indenture, except in accordance with the terms of this
Senior Subordinated Note Indenture.
Notwithstanding the foregoing, without the consent of any Holder of Senior
Exchange Notes, the Company and the Senior Note Trustee may amend or
supplement the Senior Note Indenture or the Senior Exchange Notes to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Senior
Exchange Notes in addition to or in place of certificated Senior Exchange
Notes, to provide for the assumption of the Company's obligations to Holders
of Senior Exchange Notes in the case of a merger or consolidation or sale of
all or substantially all of the Company's assets, to make any change that
would provide any additional rights or benefits to the Holders of Senior
Exchange Notes or that does not adversely affect the legal rights under the
Senior Note Indenture of any such Holder, to comply with requirements of the
Commission in order to effect or maintain the qualification of the Senior Note
Indenture under the Trust Indenture Act to provide for the issuance of
additional Senior Subordinated Exchange Notes in accordance with the
limitations set forth in this Senior Subordinated Note Indenture as of the
date hereof or to allow any Senior Subordinated Note Guarantor to execute a
supplemental Senior Subordinated Note Indenture and/or a Subordinated
Subsidiary Guarantee with respect to the Senior Subordinated Exchange Notes.
CONCERNING THE SENIOR NOTE TRUSTEE
The Senior Note Indenture contains certain limitations on the rights of the
Senior Note Trustee, should it become a creditor of the Company, to obtain
payment of claims in certain cases, or to realize on certain property received
in respect of any such claim as security or otherwise. The Senior Note Trustee
will be permitted to engage in other transactions; however, if it acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue or resign.
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The Holders of a majority in principal amount of the then outstanding Senior
Exchange Notes will have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Senior
Note Trustee, subject to certain exceptions. The Senior Note Indenture
provides that in case an Event of Default shall occur (which shall not be
cured), the Senior Note Trustee will be required, in the exercise of its
power, to use the degree of care of a prudent man in the conduct of his own
affairs. Subject to such provisions, the Senior Note Trustee will be under no
obligation to exercise any of its rights or powers under the Senior Note
Indenture at the request of any Holder of Senior Exchange Notes, unless such
Holder shall have offered to the Senior Note Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
BOOK-ENTRY, DELIVERY AND FORM
The certificates representing the Senior Exchange Notes will be issued in
fully registered form. Except as described in the next paragraph, the Senior
Exchange Notes initially will be represented by permanent global Senior
Exchange Notes, in definitive, fully registered form without interest coupons
(the "Global Senior Exchange Notes") and will be deposited with the Senior
Note Trustee as custodian for The Depositary Trust Company, New York, New York
("DTC") and registered in the name of a nominee of DTC.
Except as set forth below, the Global Senior Exchange Notes may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Senior
Exchange Notes may not be exchanged for Senior Exchange Notes in certificated
form except in the limited circumstances described below. See "--Exchange of
Book-Entry Senior Exchange Notes for Certificated Senior Exchange Notes."
Except in the limited circumstances described below, owners of beneficial
interests in the Global Senior Exchange Note will not be entitled to receive
physical delivery of Certificated Senior Exchange Notes (as defined below).
The Senior Note Trustee will act as Paying Agent and Registrar. The Senior
Exchange Notes may be presented for registration of transfer and exchange at
the offices of the Registrar.
DEPOSITORY PROCEDURES
The following description of the operations and procedures of DTC are
provided solely as a matter of convenience. These operations and procedures
are solely within the control of the respective settlement systems and are
subject to changes by them from time to time. The Company takes no
responsibility for these operations and procedures and urges investors to
contact the system or their participants directly to discuss these matters.
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between Participants through electronic book-
entry changes in accounts of its Participants. The Participants include
securities brokers and dealers (including the Initial Purchaser, banks, trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to other entities such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may
beneficially own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interests in, and
transfers of ownership interests in, each security held by or on behalf of DTC
are recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established by
it, (i) upon deposit of the Global Senior Exchange Notes, DTC will credit the
accounts of Participants designated by the Initial Purchaser with portions of
the principal amount of the Global Senior Exchange Notes and (ii) ownership of
such interests in the Global Senior Exchange Notes will be shown on, and the
transfer of ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the Participants
and the Indirect Participants (with respect to other owners of beneficial
interest in the Global Senior Exchange Notes).
Investors in the Global Senior Exchange Note may hold their interests
therein directly through DTC, if they are Participants in such system, or
indirectly through organizations which are Participants in such system. All
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interests in a Global Senior Exchange Note may be subject to the procedures
and requirements of DTC. The laws of some states require that certain persons
take physical delivery in definitive form of securities that they own.
Consequently, the ability to transfer beneficial interests in a Global Senior
Exchange Note to such persons will be limited to that extent. Because DTC can
act only on behalf of Participants, which in turn act on behalf of Indirect
Participants and certain banks, the ability of a person having beneficial
interests in a Global Senior Exchange Note to pledge such interests to persons
or entities that do not participate in the DTC system, or otherwise take
actions in respect of such interests, may be affected by the lack of a
physical certificate evidencing such interests.
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL SENIOR EXCHANGE
NOTES WILL NOT HAVE SENIOR EXCHANGE NOTES REGISTERED IN THEIR NAMES, WILL NOT
RECEIVE PHYSICAL DELIVERY OF SENIOR EXCHANGE NOTES IN CERTIFICATED FORM AND
WILL NOT BE CONSIDERED THE REGISTERED OWNERS OR "HOLDERS" THEREOF UNDER THE
SENIOR NOTE INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal of, and premium, if any, Liquidated
Damages, if any, and interest on a Global Senior Exchange Note registered in
the name of DTC or its nominee will be payable to DTC in its capacity as the
registered Holder under the Senior Note Indenture. Under the terms of the
Senior Note Indenture, the Company and the Senior Note Trustee will treat the
persons in whose names the Senior Exchange Notes, including the Global Senior
Exchange Notes, are registered as the owners thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever.
Consequently, neither the Company, the Senior Note Trustee nor any agent of
the Company or the Senior Note Trustee has or will have any responsibility or
liability for (i) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interests in the Global Senior Exchange Notes, or for maintaining,
supervising or reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in the
Global Senior Exchange Notes or (ii) any other matter relating to the actions
and practices of DTC or any of its Participants or Indirect Participants. DTC
has advised the Company that its current practice, upon receipt of any payment
in respect of securities such as the Senior Exchange Notes (including
principal and interest), is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in the principal amount of beneficial interests in
the relevant security as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of Senior
Exchange Notes will be governed by standing instructions and customary
practices and will be the responsibility of the Participants or the Indirect
Participants and will not be the responsibility of DTC, the Senior Note
Trustee or the Company. Neither the Company nor the Senior Note Trustee will
be liable for any delay by DTC or any of its Participants in identifying the
beneficial owners of the Senior Exchange Notes, and the Company and the Senior
Note Trustee may conclusively rely on and will be protected in relying on
instructions from DTC or its nominee for all purposes.
The Global Senior Exchange Notes are expected to be eligible to trade in
DTC's Same-Day Funds Settlement System and secondary market trading activity
in such interests will, therefore, settle in immediately available funds,
subject in all cases to the rules and procedures of DTC and its Participants.
See "--Same Day Settlement and Payment."
Transfers between Participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a Holder of Senior Exchange Notes only at the direction of one or
more Participants to whose account DTC has credited the interests in the
Global Senior Exchange Notes and only in respect of such portion of the
aggregate principal amount of the Senior Exchange Notes as to which such
Participant or Participants has or have given such direction. However, if
there is an Event of Default under the Senior Exchange Notes, DTC reserves the
right to exchange the Global Senior Exchange Notes for legended Senior
Exchange Notes in certificated form, and to distribute such Senior Exchange
Notes to its Participants.
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Although DTC has agreed to the foregoing procedures to facilitate transfers
of interests in the Global Senior Exchange Notes among Participants in DTC, it
is under no obligation to perform or to continue to perform such procedures,
and such procedures may be discontinued at any time. Neither the Company nor
the Senior Note Trustee nor any of their respective agents will have any
responsibility for the performance by DTC or its participants or indirect
participants of its obligations under the rules and procedures governing its
operations.
EXCHANGE OF BOOK-ENTRY SENIOR EXCHANGE NOTES FOR CERTIFICATED SENIOR EXCHANGE
NOTES
A Global Senior Exchange Note is exchangeable for definitive Senior Exchange
Notes in registered certificated form ("Certificated Senior Exchange Notes")
if (i) DTC (x) notifies the Company that it is unwilling or unable to continue
as depositary for the Global Senior Exchange Notes and the Company thereupon
fails to appoint a successor depositary or (y) has ceased to be a clearing
agency registered under the Exchange Act, (ii) the Company, at its option,
notifies the Senior Note Trustee in writing that it elects to cause the
issuance of the Certificated Senior Exchange Notes or (iii) there shall have
occurred and be continuing a Default or Event of Default with respect to the
Senior Exchange Notes. In addition, beneficial interests in a Global Senior
Exchange Note may be exchanged for Certificated Senior Exchange Notes upon
request but only upon prior written notice given to the Senior Note Trustee by
or on behalf of DTC in accordance with the Senior Note Indenture. In all
cases, Certificated Senior Exchange Notes delivered in exchange for any Global
Senior Exchange Note or beneficial interests therein will be registered in the
names, and issued in any approved denominations, requested by or on behalf of
the depositary (in accordance with its customary procedures).
EXCHANGE OF CERTIFICATED SENIOR EXCHANGE NOTES FOR BOOK-ENTRY SENIOR EXCHANGE
NOTES
Senior Exchange Notes issued in certificated form may be exchanged for
beneficial interests in any Global Senior Exchange Note.
SAME DAY SETTLEMENT AND PAYMENT
The Senior Note Indenture will require that payments in respect of the
Senior Exchange Notes represented by the Global Senior Exchange Notes
(including principal, premium, if any, interest and Liquidated Damages, if
any) be made by wire transfer of immediately available funds to the accounts
specified by the Global Senior Exchange Note Holder. With respect to Senior
Exchange Notes in certificated form, the Company will make all payments of
principal, premium, if any, interest and Liquidated Damages, if any, by wire
transfer of immediately available funds to the accounts specified by the
Holders thereof or, if no such account is specified, by mailing a check to
each such Holder's registered address. The Senior Exchange Notes represented
by the Global Senior Exchange Notes are expected to trade in DTC's Same-Day
Funds Settlement System, and any permitted secondary market trading activity
in such Senior Exchange Notes will, therefore, be required by DTC to be
settled in immediately available funds. The Company expects that secondary
trading in any certificated Senior Exchange Notes will also be settled in
immediately available funds.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Senior Note Indenture.
Reference is made to the Senior Note Indenture for a full disclosure of all
such terms, as well as any other capitalized terms used herein for which no
definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the acquisition by the Company of: (i) all of the common
stock of Peabody Holding Company, (ii) all of the common stock of Gold Fields
Mining Corp., (iii) all of the membership interests of
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Citizens Power, (iv) the 1% interests in CL Hartford, L.L.C., a Delaware
limited liability company, and Citizens Power Sales, a Delaware general
partnership, both subsidiaries of Citizens Power, (v) all of the shares of
Darex Capital Inc., a company incorporated in the Republic of Panama, and (vi)
all of the ordinary shares of Peabody Australia LTD, which together with Darex
Capital, Inc. owns Peabody Resources.
"Additional Assets" means (i) any property or assets (other than Capital
Stock, Indebtedness or rights to receive payments over a period greater than
180 days, other than with respect to coal supply contract restructurings) that
is usable by the Company or a Restricted Subsidiary in a Permitted Business or
(ii) the Capital Stock of a Person that is at the time, or becomes, a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory in the ordinary course of business
consistent with past practices (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole will be governed by the
provisions of the Senior Note Indenture described above under the caption "--
Change of Control" and/or the provisions described above under the caption "--
Merger, Consolidation or Sale of Assets" and not by the provisions of the
Asset Sale covenant), and (ii) the issue or sale by the Company or any of its
Restricted Subsidiaries of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $5.0 million or (b) for Net Proceeds in excess of $5.0
million. Notwithstanding the foregoing, the following items shall not be
deemed to be Asset Sales: (i) a transfer of assets by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary, (ii) an issuance of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary,
(iii) a Restricted Payment that is permitted by, or an Investment that is not
prohibited by, the covenant described above under the caption "--Restricted
Payments," (iv) a disposition of Cash Equivalents or obsolete equipment, (v)
foreclosures on assets, (vi) the sale or discount, in each case without
recourse, of accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof and (vii) the
factoring of accounts receivable arising in the ordinary course of business
pursuant to arrangements customary in the industry.
"Bengalla Joint Venture" means Bengalla Mining Co. Pty Limited, Bengalla
Agricultural Co. Pty Limited and Bengalla Coal Sales Co. Pty Ltd. which are
the joint venture companies related to the Bengalla mine in New South Wales,
Australia.
"Black Beauty Coal Company" means the Indiana general partnership among
Thoroughbred, L.L.C., Black Beauty Resources, Inc. and Pittsburg and Midway
Coal Mining Co., and any Person collectively owned by those three partners
including, but not limited to, Eagle Coal Company and Falcon Coal Company.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"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
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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.
"Cash Equivalents" means (a) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed or insured by the U.S.
Government or any agency thereof, (b) certificates of deposit and time
deposits with maturities of one year or less from the date of acquisition and
overnight bank deposits of any lender under the Senior Credit Facilities or of
any commercial bank having capital and surplus in excess of $500.0 million,
(c) repurchase obligations of any lender under the Senior Credit Facilities or
of any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to securities
issued or fully guaranteed or insured by the United States Government, (d)
commercial paper of a domestic issuer rated at least A-2 by Standard and
Poor's Rating Group ("S&P") or P-2 by Moody's Investors Service, Inc.
("Moody's"), or carrying an equivalent rating by a nationally recognized
rating agency if both of S&P and Moody's cease publishing ratings of
investments, (e) securities with maturities of one year or less from the date
of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody's, (f) securities with maturities of one
year or less from the date of acquisition backed by standby letters of credit
issued by any lender under the Senior Credit Facilities or any commercial bank
satisfying the requirements of clause (b) of this definition or (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition.
"Citizens Power" means Citizens Power LLC, a Delaware limited liability
company and its direct and indirect Subsidiaries.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (ii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs, deferred financing
fees and original issue discount, noncash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing
such Consolidated Net Income, plus (iii) an amount equal to any extraordinary
loss plus any net loss realized in connection with an Asset Sale (to the
extent such losses were deducted in computing such Consolidated Net Income),
plus (iv) depreciation, depletion, amortization (including amortization of
goodwill and other intangibles) and other noncash expenses (including, without
limitation, writedowns and impairment of property, plant and equipment and
intangibles and other long-lived assets) (excluding any such noncash expense
to the extent that it represents an accrual of or reserve for cash expenses in
any future period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Restricted Subsidiaries for such period
to the extent that such depreciation, depletion, amortization and other
noncash expenses were deducted in computing such Consolidated Net Income,
minus (v) noncash items increasing such Consolidated Net Income for such
period (other than accruals in accordance with GAAP), plus (vi) without
duplication for amounts otherwise included in Consolidated Cash Flow, the
amount of the Company's and its Restricted Subsidiaries' proportionate share
of the Consolidated Cash Flow of Black Beauty Coal Company and its
Subsidiaries for such period (calculated in proportion to the Company's and
its Restricted Subsidiaries common equity ownership), in each case, on a
consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation, depletion and amortization and other noncash expenses of, a
Restricted Subsidiary that is not a Senior Note Guarantor shall be added to
Consolidated Net Income to compute
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Consolidated Cash Flow only to the extent that a corresponding amount would be
permitted at the date of determination to be dividended to the Company by such
Restricted Subsidiary without prior governmental approval (that has not been
obtained), and without direct or indirect restriction pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Restricted
Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided
that (i) the Net Income of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the
referent Person or a Restricted Subsidiary thereof, (ii) the Net Income of any
Restricted Subsidiary that is not a Senior Note Guarantor shall be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or
its stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition
shall be excluded, (iv) the cumulative effect of a change in accounting
principles shall be excluded, and (v) the Net Income (or loss) of any
Unrestricted Subsidiary shall be excluded, whether or not distributed to the
Company or one of its Restricted Subsidiaries.
"Credit Facilities" means, with respect to the Company or any of its
Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the Senior Credit Facilities) 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, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time. Indebtedness under Credit Facilities
outstanding on the date on which Senior Notes are first issued and
authenticated under the Senior Note Indenture shall be deemed to have been
incurred on such date in reliance on the exception provided by clause (i) of
the definition of Permitted Indebtedness.
"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.
"Designated Noncash Consideration" means the fair market value of noncash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Senior Exchange Notes mature; provided, however, that any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with the
covenant described above under the caption "--Certain Covenants--Restricted
Payments."
"Domestic Subsidiary" means a Subsidiary that is (i) formed under the laws
of the United States of America or a state or territory 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 United States federal income tax purposes.
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"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of equity securities
(excluding Disqualified Stock) of the Company, other than any private sales to
an Affiliate of the Company.
"Escrow Account" means the escrow account maintained pursuant to the Escrow
Letter.
"Escrow Letter" means that certain escrow letter dated March 2, 1998, by and
among Lazard Brothers & Co., Limited, The Energy Group PLC, Peabody
Investments Inc. and P&L Coal Holdings Corporation.
"Existing Citizens Power Investment" means the Investments in Citizens Power
by the Company and its Restricted Subsidiaries as of the date of the closing
of the Acquisition.
"Existing Indebtedness" means up to $292.5 million in aggregate principal
amount of Indebtedness of the Company and its Restricted Subsidiaries (other
than Indebtedness under the Senior Credit Facilities, the Senior Exchange
Notes, the Senior Exchange Subordinated Notes and related Guarantees) in
existence on the date of the closing of the Acquisition, until such amounts
are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
noncash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred
in respect of letters of credit or bankers' acceptance financings, and net
payments (if any) pursuant to Hedging Obligations, but excluding amortization
of debt issuance costs) and (ii) the consolidated interest of such Person and
its Restricted Subsidiaries that was capitalized during such period, and (iii)
any interest expense on the portion of Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by
a Lien on assets of such Person or one of its Restricted Subsidiaries (whether
or not such Guarantee or Lien is called upon) and (iv) the product of (a) all
dividend payments, whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than dividend
payments on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary
of the Company, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the effective combined federal, state and
local tax rate of such Person for such period, expressed as a decimal, in each
case, for the Company and its Restricted Subsidiaries on a consolidated basis
and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person and its
Restricted Subsidiaries for any period, the ratio of the Consolidated Cash
Flow of such Person and its Restricted Subsidiaries for such period to the
Fixed Charges of such Person and its Restricted Subsidiaries for such period.
In the event that the referrent Person or any of its Restricted Subsidiaries
incurs, assumes, Guarantees or redeems any Indebtedness (other than revolving
credit borrowings) or issues or redeems preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date on which the event for which the calculation
of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the
Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to
such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that
have been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions and including pro forma cost savings permitted by Article 11 of
Regulation S-X, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be given pro
forma effect as if they had occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference period shall be
calculated without giving effect to clause (iii) of the proviso set forth in
the
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definition of Consolidated Net Income, and (ii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with
GAAP, and operations or businesses disposed of prior to the Calculation Date,
shall be excluded, and (iii) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed Charges will
not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"Foreign Subsidiaries" means Subsidiaries of the Company that are not
Domestic Subsidiaries.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Senior Note Indenture.
"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.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange, interest rate or commodity swap
agreements, currency exchange, interest rate or commodity cap agreements and
currency exchange, interest rate or commodity collar agreements and (ii) other
agreements or arrangements designed to protect such Person against
fluctuations in currency exchange, interest rates or commodity prices, in each
case for the purpose of risk management and not for speculation.
"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 or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations, if
and to the extent any of the foregoing (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all Indebtedness of others
secured by a Lien on any asset of such Person (whether or not such
Indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other
Person, but excluding from the definition of "Indebtedness," any of the
foregoing that constitutes (1) an accrued expense, (2) trade payables and (3)
Obligations in respect of reclamation, workers' compensation, including black
lung, pensions and retiree health care, in each case to the extent not overdue
for more than 90 days. The amount of any Indebtedness outstanding as of any
date shall be (i) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount, and (ii) the principal amount thereof,
together with any interest thereon that is more than 30 days past due, in the
case of any other Indebtedness.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees, other than performance guarantees
provided for the benefit of Citizens Power, of any portion of Indebtedness or
other obligations), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a Restricted
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or
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disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of the covenant described above under the
caption "--Restricted Payments."
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Marketable Securities" means, with respect to any Asset Sale, any readily
marketable equity securities that are (i) traded on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market; and (ii)
issued by a corporation having a total equity market capitalization of not
less than $250.0 million; provided that the excess of (A) the aggregate amount
of securities of any one such corporation held by the Company and any
Restricted Subsidiary over (B) ten times the average daily trading volume of
such securities during the 20 immediately preceding trading days shall be
deemed not to be Marketable Securities; as determined on the date of the
contract relating to such Asset Sale.
"Net Income" means, with respect to any Person, the net income or loss of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain or
loss, together with any related provision for taxes on such gain or loss,
realized in connection with (a) any Asset Sale (including, without limitation,
dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain
or loss, together with any related provision for taxes on such extraordinary
or nonrecurring gain or loss.
"Net Proceeds" means the aggregate proceeds (cash or property) received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any noncash consideration received in any Asset Sale) or the
sale or disposition of any Investment, net of the direct costs relating to
such Asset Sale, sale or disposition, (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.
"Non-Guarantor Subsidiaries" means (i) Citizens Power and its direct and
indirect Subsidiaries, (ii) the Company's future Unrestricted Subsidiaries and
(iii) the Company's current and future Foreign Subsidiaries.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness) other than a pledge of the Equity Interests of any Unrestricted
Subsidiaries, (b) is directly or indirectly liable (as a guarantor or
otherwise) other than by virtue of a pledge of the Equity Interests of any
Unrestricted Subsidiaries, or (c) constitutes the lender; and (ii) no default
with respect to which (including any rights that the holders thereof may have
to take enforcement action against an Unrestricted Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Indebtedness
(other than the Senior Exchange Notes being offered hereby) of the Company or
any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior
to its stated maturity.
"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.
"Permitted Business" means coal production, coal mining, coal brokering,
coal transportation, mine development, power marketing, electricity
generation, power/energy sales and trading, energy transactions/asset
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restructurings, risk management products associated with energy, fuel/power
integration and other energy related businesses, ash disposal, environmental
remediation, coal, natural gas, petroleum or other fossil fuel exploration,
production, marketing, transportation and distribution and other related
businesses, and activities of the Company and its Subsidiaries as of the date
of the closing of the Acquisition and any business or activity that is
reasonably similar thereto or a reasonable extension, development or expansion
thereof or ancillary thereto.
"Permitted Investments" means (a) any Investment in the Company or in a
Restricted Subsidiary of the Company; (b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary of the Company
in a Person, if as a result of such Investment (i) such Person becomes a
Restricted Subsidiary of the Company or (ii) such Person, in one transaction
or a series of related transactions, is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Company or a Restricted Subsidiary of the Company; (d)
any acquisition of assets solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company; (e) any Investment
existing on the date of the closing of the Acquisition (an "Existing
Investment") and any Investment that replaces, refinances or refunds an
Existing Investment, provided that the new Investment is in an amount that
does not exceed the amount replaced, refinanced or refunded and is made in the
same Person as the Investment replaced, refinanced or refunded, (f) advances
to employees not in excess of $10.0 million outstanding at any one time; (g)
Hedging Obligations permitted under clause (ix) of the "--Incurrence of
Indebtedness and Issuance of Preferred Stock" covenant; (h) loans and advances
to officers, directors and employees for business-related travel expenses,
moving expenses and other similar expenses, in each case incurred in the
ordinary course of business; (i) any Investment in a Permitted Business
(whether or not an Investment in an Unrestricted Subsidiary) having an
aggregate fair market value, when taken together with all other Investments
made pursuant to this clause (i), does not exceed in aggregate amount the sum
of (1) 10% of Total Assets at the time of such Investment (with the fair
market value of each Investment being measured at the time made and without
giving effect to subsequent changes in value) plus (2) 100% of the Net
Proceeds from the sale or disposition of any Investment previously made
pursuant to this clause (i) or 100% of the amount of any dividend,
distribution or payment from any such Investment, net of income taxes paid or
payable in respect thereof, in each case up to the amount of the Investment
that was made pursuant to this clause (i) and 50% of the amount of such Net
Proceeds or 50% of such dividends, distributions or payments, in each case
received in excess of the amount of the Investments made pursuant to this
clause (i); (j) guarantees (including Guarantees) of Indebtedness permitted
under the covenant "--Incurrence of Indebtedness and Issuance of Preferred
Stock;" (k) any Investment acquired by the Company or any of its Restricted
Subsidiaries (A) in exchange for any other Investment or accounts receivable
held by the Company or any such Restricted Subsidiary in connection with or as
a result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable or (B) as a result of
the transfer of title with respect to any secured Investment in default as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to such secured Investment; (l) any Investment in Black Beauty
Coal Company having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (l), that are at the time
outstanding not to exceed $50.0 million (with any write-down or write-off of
any such Investment deemed to remain outstanding); (m) Investments in Citizens
Power having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (m), that are at that time
outstanding not to exceed $50.0 million at the time of such Investment (with
the fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value); (n) any Investment in
the Bengalla Joint Venture and the Warkworth Associates Joint Venture having
an aggregate fair market value, taken together with all other Investments made
pursuant to this clause (n), that are at the time outstanding, not to exceed
$25.0 million (with any write-down or write-off of any such Investment deemed
to remain outstanding); (o) that portion of any Investment by the Company or a
Restricted Subsidiary in a Permitted Business to the extent that the Company
or such Restricted Subsidiary will receive in a substantially concurrent
transaction an amount in cash equal to the amount of such Investment (or the
fair market value of such Investment), net of any obligation to pay taxes or
other amounts in respect of the receipt of such cash; provided that the
receipt of such cash does not carry any obligation by the Company or such
Restricted Subsidiary to repay or return such cash; and (p) the forgiveness or
cancellation of any payable due from Citizens Power and its direct and
indirect Subsidiaries outstanding on the date of the closing of the
Acquisition; provided,
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however, that with respect to any Investment, the Company may, in its sole
discretion, allocate all or any portion of any Investment to one or more of
the above clauses so that the entire Investment would be a Permitted
Investment.
"Permitted Liens" means (i) Liens securing Indebtedness under Credit
Facilities that were permitted by the terms of the Senior Note Indenture to be
incurred; (ii) Liens in favor of the Company; (iii) Liens on property of a
Person existing at the time such Person is merged into or consolidated with
the Company or any Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company; (iv) Liens on property existing
at the time of acquisition thereof by the Company or any Restricted Subsidiary
of the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (v) 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; (vi)
Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other kinds
of social security; (vii) Liens existing on the date of the closing of the
Acquisition; (viii) 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; (ix) Liens on assets of
Senior Note Guarantors to secure Senior Debt of such Senior Note Guarantors
that was permitted by the Senior Note Indenture to be incurred; (x) Liens
incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that (a) are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary; (xi) Liens on assets of Foreign
Subsidiaries to secure Indebtedness that was permitted by the Senior Note
Indenture to be incurred; (xii) statutory liens of landlords, mechanics,
suppliers, vendors, warehousemen, carriers or other like Liens arising in the
ordinary course of business; (xiii) judgment Liens not giving rise to an Event
of Default 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; (xiv) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title defects incurred or
imposed, as applicable, in the ordinary course of business and consistent with
industry practices which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the property
subject thereto (as such property is used by the Company or its Subsidiaries)
or interfere with the ordinary conduct of the business of the Company or such
Subsidiaries; provided, however, that any such Liens are not incurred in
connection with any borrowing of money or any commitment to loan any money or
to extend any credit; (xv) Liens to secure Indebtedness (including Capital
Lease Obligations) permitted by clause (vi) of the second paragraph of the
covenant entitled "Incurrence of Indebtedness and Issuance of Preferred Stock"
and other purchase money Liens to finance property or assets of the Company or
any Restricted Subsidiary acquired in the ordinary course of business;
provided that such Liens are only secured by such property or assets so
acquired or improved (including, in the case of the acquisition of Capital
Stock of a Person who becomes a Restricted Subsidiary, Liens on the assets of
the Person whose Capital Stock was so acquired); (xvi) Liens securing
Indebtedness under Hedging Obligations; provided that such Liens are only
secured by property or assets that secure the Indebtedness subject to the
Hedging Obligation; (xvii) Liens to secure Indebtedness permitted by clause
(xv) of the second paragraph of the covenant entitled "Incurrence of
Indebtedness and Issuance of Preferred Stock;" and (xviii) Liens on the Equity
Interests of Unrestricted Subsidiaries securing obligations of Unrestricted
Subsidiaries not otherwise prohibited by the Senior Note Indenture.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal
amount (or accreted value, if applicable) of such
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Permitted Refinancing Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus accrued interest and premium, if any, on,
the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Senior Exchange Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the Senior Exchange Notes on terms at least as favorable
to the Holders of Senior Exchange Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either
by the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Senior Credit Facilities" means those certain Senior Credit Facilities,
dated as of May 18, 1998, by and among the Company, the Senior Note
Guarantors, Lehman Commercial Paper Inc., as Arranger, Syndication Agent and
the Administrative Agent 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, exhibits or schedules to any of the foregoing), and in each case
as amended, modified, supplemented, restated, renewed, refunded, replaced,
restructured, repaid or refinanced from time to time (whether with the
original agents and lenders or other agents and lenders or otherwise, and
whether provided under the original credit agreement or other credit
agreements or otherwise).
"Senior Subordinated Note Indenture" means the indenture dated May 18, 1998,
governing the Senior Subordinated Notes.
"Senior Subordinated Exchange Notes" mean the 9 5/8% Series B Senior
Subordinated Exchange Notes of the Company due 2008.
"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
hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
"Subordinated Subsidiary Guarantees" mean the guarantees endorsed on the
Senior Subordinated Exchange Notes by the Subordinated Note Guarantors.
"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 Senior Note 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).
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"Total Assets" means the total assets of the Company and its Restricted
Subsidiaries on a consolidated basis determined in accordance with GAAP, as
shown on the most recently available consolidated balance sheet of the Company
and its Restricted Subsidiaries.
"Transaction Documents" means the documents related to (i) the Acquisition
(including, without limitation, the purchase agreement, the participation
agreement and the escrow agreement), (ii) the Senior Credit Facilities and
(iii) the offering of the Old Senior Notes and the Old Senior Subordinated
Notes.
"Treasury Rate" means the yield to maturity at the time of the computation
of the United States Treasury securities with a constant maturity (as compiled
by and published in the most recent Federal Reserve Statistical Release
H.15(519), which has become publicly available at least two Business Days
prior to the date fixed for redemption (or if such Statistical Release is no
longer published, any publicly available source of similar market data)) most
nearly equal to the then remaining average life to May 15, 2003; provided,
however, that if the average life of such Senior Exchange Note is not equal to
the constant maturity of the United States Treasury security for which weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such
yields are given, except that if the average life of such Senior Exchange Note
is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall
be used.
"Unrestricted Subsidiary" means (i) Citizens Power, any direct or indirect
Subsidiary of Citizens Power on the date of the Senior Note Indenture and (ii)
any Subsidiary that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Person: (a) has no Indebtedness other than Non-Recourse Debt; (b) is not party
to any agreement, contract, arrangement or understanding with the Company or
any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; (c) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries
has any obligation (x) to subscribe for additional Equity Interests in
Unrestricted Subsidiaries or (y) to maintain or preserve such Person's net
worth (except with respect to Permitted Investments); and (d) has not
guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries; provided,
however, that the Company and its Restricted Subsidiaries may guarantee the
performance of Unrestricted Subsidiaries in the ordinary course of business
except for guarantees of Obligations in respect of borrowed money. Any such
designation by the Board of Directors shall be evidenced to the Senior Note
Trustee by filing with the Senior Note Trustee a certified copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and
was permitted by the covenant described above under the caption "Certain
Covenants--Restricted Payments."
"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.
"Warkworth Associates Joint Venture" means Warkworth Coal Sales Ltd.,
Warkworth Pastoral Co. Pty, Limited and Warkworth Mining Limited, which are
the joint venture companies related to the Warkworth mine in New South Wales,
Australia.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
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"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall
at the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
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DESCRIPTION OF THE SENIOR SUBORDINATED EXCHANGE NOTES
GENERAL
The Senior Subordinated Notes were issued and the Senior Subordinated
Exchange Notes will be issued pursuant to an Indenture (the "Senior
Subordinated Note Indenture") between the Company and State Street Bank and
Trust Company, as trustee (the "Senior Subordinated Note Trustee"), in a
private transaction that is not subject to the registration requirements of
the Securities Act. The terms of the Senior Subordinated Exchange Notes
include those stated in the Senior Subordinated Note Indenture and those made
part of the Senior Subordinated Note Indenture by reference to the Trust
Indenture Act. The Senior Subordinated Exchange Notes are subject to all such
terms, and Holders of Senior Subordinated Exchange Notes are referred to the
Senior Subordinated Note Indenture and the Trust Indenture Act for a statement
thereof. The following summary of the material provisions of the Senior
Subordinated Note Indenture does not purport to be complete and is qualified
in its entirety by reference to the Senior Subordinated Note Indenture,
including the definitions therein of certain terms used below. Copies of the
proposed form of Senior Subordinated Note Indenture and Senior Subordinated
Registration Rights Agreement are available as set forth below under
"Available Information." The definitions of certain terms used in the
following summary are set forth below under "--Certain Definitions." For
purposes of this summary, the term "Company" refers only to P&L Coal Holdings
Corporation and not to any of its Subsidiaries.
On May 18, 1998, the Company issued $500.0 million aggregate principal
amount of Old Senior Subordinated Notes under the Senior Subordinated Note
Indenture. The terms of the Senior Subordinated Exchange Notes are identical
in all material respects to the Old Senior Subordinated Notes, except for
certain transfer restrictions and registration and other rights relating to
the exchange of the Old Senior Subordinated Notes for Senior Subordinated
Exchange Notes. The Senior Subordinated Note Trustee will authenticate and
deliver Senior Subordinated Exchange Notes for original issue only in exchange
for a like principal amount of Old Senior Subordinated Notes. Any Old Senior
Subordinated Notes that remain outstanding after the consummation of the
Senior Subordinated Exchange Offer, together with the Senior Subordinated
Exchange Notes, will be treated as a single class of securities under the
Senior Subordinated Note Indenture. Accordingly, all references herein to
specified percentages in aggregate principal amount of the outstanding Senior
Subordinated Exchange Notes shall be deemed to mean, at any time after the
Senior Subordinated Exchange Offer is consummated, such percentage in
aggregate principal amount of the Old Senior Subordinated Notes and Senior
Subordinated Exchange Notes then outstanding.
The Senior Subordinated Exchange Notes will be general unsecured obligations
of the Company and will be subordinated in right of payment to all current and
future Senior Debt. As of March 31, 1998, on a pro forma basis giving effect
to the Transactions, the Company would have had Senior Debt of
$1,320.0 million and $480.0 million of available borrowing capacity under the
Senior Credit Facilities, including letters of credit. The Senior Subordinated
Note Indenture permits the incurrence of additional Senior Debt in the future.
The operations of the Company are conducted through its Subsidiaries and,
therefore, the Company is dependent upon the cash flow of its Subsidiaries to
meet its obligations, including its obligations under the Senior Subordinated
Exchange Notes. The Senior Subordinated Exchange Notes will be effectively
subordinated to all Indebtedness and other liabilities and commitments
(including trade payables and lease obligations) of the Company's
Subsidiaries. Any right of the Company to receive assets of any of its
Subsidiaries upon the latter's liquidation or reorganization (and the
consequent right of the Holders of the Senior Subordinated Exchange Notes to
participate in those assets) will be effectively subordinated to the claims of
that Subsidiary's creditors, except to the extent that the Company is itself
recognized as a creditor of such Subsidiary, in which case the claims of the
Company would still be subordinate to any security in the assets of such
Subsidiary and any indebtedness of such Subsidiary senior to that held by the
Company. As of March 31, 1998, on a pro forma basis giving effect to the
Transactions, the Company's Subsidiaries would have had approximately $5,445.6
million of Indebtedness (including trade payables, land reclamation and
environmental liabilities, workers' compensation liabilities and retiree
health care liabilities). See "Risk Factors--Risks Relating to the Notes--
Holding Company Structure; Effective Subordination."
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All of the Company's Subsidiaries other than Citizens Power and its
Subsidiaries were Restricted Subsidiaries. However, under certain
circumstances, the Company will be able to designate current or future
Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries will not
be subject to many of the restrictive covenants set forth in the Senior
Subordinated Note Indenture.
PRINCIPAL, MATURITY AND INTEREST
The Senior Subordinated Notes are limited in aggregate principal amount to
$650.0 million, of which $500.0 million was issued in the Offering, and will
mature on May 15, 2008. Interest on the Senior Subordinated Exchange Notes
will accrue at the rate of 9 5/8% per annum and will be payable semi-annually
in arrears on May 15 and November 15, commencing on November 15, 1998, to
Holders of record on the immediately preceding May 1 and November 1.
Additional Senior Subordinated Notes may be issued from time to time after the
Offering, subject to the provisions of the Senior Subordinated Note Indenture
described below under the caption "--Certain Covenants--Incurrence of
Indebtedness and Issuance of Preferred Stock." Interest on the Senior
Subordinated Exchange Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from May 18, 1998.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months. Principal, premium, if any, and interest and Liquidated
Damages, if any, on the Senior Subordinated Exchange Notes will be payable at
the office or agency of the Company maintained for such purpose within the
City and State of New York or, at the option of the Company, payment of
interest and Liquidated Damages, if any, may be made by check mailed to the
Holders of the Senior Subordinated Exchange Notes at their respective
addresses set forth in the register of Holders of Senior Subordinated Exchange
Notes; provided that all payments of principal, premium, interest and
Liquidated Damages, if any, with respect to Senior Subordinated Exchange Notes
the Holders of which have given wire transfer instructions to the Company will
be required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof. Until otherwise designated by the
Company, the Company's office or agency in New York will be the office of the
Senior Subordinated Note Trustee maintained for such purpose. The Senior
Subordinated Exchange Notes will be issued in denominations of $1,000 and
integral multiples thereof.
SUBORDINATION
The payment of principal of, premium, if any, and interest on the Senior
Subordinated Exchange Notes will be subordinated in right of payment, as set
forth in the Senior Subordinated Note Indenture, to the prior payment in full
in cash of all Senior Debt, whether outstanding on the date of the Senior
Subordinated Note Indenture or thereafter incurred.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities, the holders of Senior Debt will be entitled to receive
payment in full in cash of all Obligations due in respect of such Senior Debt
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt, whether or not an allowable claim in
any such proceeding) before the Holders of Senior Subordinated Exchange Notes
will be entitled to receive any payment with respect to the Senior
Subordinated Exchange Notes, and until all Obligations with respect to Senior
Debt are paid in full, any distribution to which the Holders of Senior
Subordinated Exchange Notes would be entitled shall be made to the holders of
Senior Debt (except that, in each case, Holders of Senior Subordinated
Exchange Notes may receive and retain Permitted Junior Securities and payments
made from the trust described under "--Legal Defeasance and Covenant
Defeasance").
The Company also may not make any payment upon or in respect of the Senior
Subordinated Exchange Notes (except in Permitted Junior Securities or from the
trust described under "--Legal Defeasance and Covenant Defeasance") if (i) a
default in the payment of the principal of, premium, if any, or interest on
Designated Senior Debt occurs and is continuing or (ii) any other default
occurs and is continuing with respect to Designated Senior Debt that permits
holders of the Designated Senior Debt as to which such default relates to
accelerate its maturity
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(or that would permit such holders to accelerate with the giving of notice or
the passage of time or both) and the Senior Subordinated Note Trustee receives
a notice of such default (a "Payment Blockage Notice") from the Company or the
holders of any Designated Senior Debt. Payments on the Senior Subordinated
Exchange Notes may and shall be resumed (a) in the case of a payment default,
upon the date on which such default is cured or waived and (b) in case of a
nonpayment default, the earlier of the date on which such nonpayment default
is cured or waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated Senior Debt
has been accelerated. No new period of payment blockage may be commenced with
respect to any particular Designated Senior Debt unless and until (i) 360 days
have elapsed since the effectiveness of the immediately prior Payment Blockage
Notice and (ii) all scheduled payments of principal, premium, if any, and
interest and Liquidated Damages, if any, on the Senior Subordinated Exchange
Notes that have come due have been paid in full in cash. No nonpayment default
that existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Senior Subordinated Note Trustee shall be, or be made, the basis
for a subsequent Payment Blockage Notice unless such default shall have been
waived for a period of not less than 90 days.
The Senior Subordinated Note Indenture will further require that the Company
promptly notify holders of Senior Debt if payment of the Senior Subordinated
Exchange Notes is accelerated because of an Event of Default.
As a result of the subordination provisions described above, in the event of
a liquidation or insolvency, Holders of Senior Subordinated Exchange Notes may
recover less ratably than creditors of the Company who are holders of Senior
Debt. On a pro forma basis, after giving effect to the Transactions, the
principal amount of Senior Debt outstanding at March 31, 1998, would have been
approximately $1,318.8 million. The Senior Subordinated Note Indenture will
limit, subject to certain financial tests, the amount of additional
Indebtedness, including Senior Debt, that the Company and its Subsidiaries can
incur. See "--Certain Covenants--Incurrence of Indebtedness and Issuance of
Preferred Stock."
"Designated Senior Debt" means (i) any Indebtedness of the Company or any of
its Restricted Subsidiaries outstanding under Credit Facilities, (ii) any
Indebtedness outstanding under the Senior Note Indenture and (iii) any other
Senior Debt permitted under the Senior Subordinated Note Indenture the
principal amount of which is $25.0 million or more and that has been
designated by the Company as "Designated Senior Debt."
"Permitted Junior Securities" means Equity Interests in the Company or any
Senior Subordinated Note Guarantor or debt securities that are subordinated to
all Senior Debt (and any debt securities issued in exchange for Senior Debt)
to substantially the same extent as, or to a greater extent than, the Senior
Subordinated Exchange Notes and the Subordinated Subsidiary Guarantees are
subordinated to Senior Debt pursuant to Article 10 of the Senior Subordinated
Note Indenture.
"Senior Debt" means (i) all Indebtedness of the Company or any of its
Restricted Subsidiaries outstanding under Credit Facilities and all Hedging
Obligations with respect thereto, (ii) any other Indebtedness permitted to be
incurred by the Company or any of its Restricted Subsidiaries under the terms
of the Senior Subordinated Note Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is on a parity with
or subordinated in right of payment to the Senior Subordinated Exchange Notes
or any Guarantee of the Senior Subordinated Exchange Notes and (iii) all
Obligations with respect to the foregoing. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (w) any liability for
federal, state, local or other taxes owed or owing by the Company or any
Subsidiary, (x) any Indebtedness of the Company or any Subsidiary to any
Subsidiaries of the Company or to the Company, (y) any trade payables or (z)
any Indebtedness that is incurred in violation of the Senior Subordinated Note
Indenture.
SUBORDINATED SUBSIDIARY GUARANTEES
The Company's payment obligations under the Senior Subordinated Exchange
Notes will be jointly and severally guaranteed (the "Subordinated Subsidiary
Guarantees") by the Senior Subordinated Note Guarantors.
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The Subordinated Subsidiary Guarantee of each Senior Subordinated Note
Guarantor will be subordinated to the prior payment in full of all Senior Debt
of the Senior Subordinated Note Guarantors and the amounts for which the
Senior Subordinated Note Guarantors will be liable under the guarantees issued
from time to time with respect to Senior Debt. The obligations of each Senior
Subordinated Note Guarantor under its Subordinated Subsidiary Guarantee will
be limited to the maximum amount that would not constitute a fraudulent
conveyance under applicable law. See "Risk Factors--Risks Relating to the
Notes--Fraudulent Conveyance Matters." Notwithstanding the foregoing, no
Subsidiary of the Company will be required to endorse a Subordinated
Subsidiary Guarantee unless such Subsidiary is required to, and does,
simultaneously execute a Guarantee of the Senior Credit Facilities.
The Senior Subordinated Exchange Notes will not be guaranteed by certain of
the Company's Domestic Subsidiaries or by any Foreign Subsidiaries of the
Company. For the fiscal year ended March 31, 1998, after giving effect to the
Transactions, the Non-Guarantor Subsidiaries accounted for 11% and 20% of pro
forma revenues and EBITDA, respectively, and, as of March 31, 1998, the Non-
Guarantor Subsidiaries accounted for 27% of pro forma assets. The claims of
creditors (including trade creditors) of any Non-Guarantor Subsidiary will
generally have priority as to the assets of such Subsidiaries over the claims
of the holders of the Senior Subordinated Exchange Notes. As of March 31,
1998, after giving effect to the Transactions, the amount of liabilities of
such Non-Guarantor Subsidiaries would have been approximately $1,578.4
million.
The Senior Subordinated Note Indenture provides that no Senior Subordinated
Note Guarantor may consolidate with or merge with or into (whether or not such
Senior Subordinated Note Guarantor is the surviving Person), another
corporation, Person or entity whether or not affiliated with such Senior
Subordinated Note Guarantor unless (i) subject to the provisions of the
following paragraph, the Person formed by or surviving any such consolidation
or merger (if other than such Senior Subordinated Note Guarantor) assumes all
the obligations of such Senior Subordinated Note Guarantor pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Senior Subordinated Note Trustee, under the Senior Subordinated Exchange
Notes, the Senior Subordinated Note Indenture and the Senior Subordinated
Registration Rights Agreement; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and (iii) the Company
would be permitted by virtue of the Company's pro forma Fixed Charge Coverage
Ratio, immediately after giving effect to such transaction, to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the covenant described below under the caption "--Incurrence
of Indebtedness and Issuance of Preferred Stock."
The Senior Subordinated Note Indenture provides that in the event of (a) a
sale or other disposition of all of the assets of any Senior Subordinated Note
Guarantor, by way of merger, consolidation or otherwise, (b) a sale or other
disposition of all of the capital stock of any Senior Subordinated Note
Guarantor or (c) the designation of a Senior Subordinated Note Guarantor as an
Unrestricted Subsidiary in accordance with the terms of the Senior
Subordinated Note Indenture, then such Senior Subordinated Note Guarantor (in
the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Senior
Subordinated Note Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all of the assets of such Senior
Subordinated Note Guarantor) will be released and relieved of any obligations
under its Subordinated Subsidiary Guarantee; provided that the Net Proceeds of
any such sale or other disposition are applied in accordance with the
applicable provisions of the Senior Subordinated Note Indenture and any such
designation of a Senior Subordinated Note Guarantor as an Unrestricted
Subsidiary complies with all applicable covenants. See "Repurchase at the
Option of Holders--Asset Sales."
"Senior Subordinated Note Guarantors" means each of (i) the Company's
Domestic Subsidiaries at the date of the closing of the Acquisition, other
than Citizens Power and the Subsidiaries of Citizens Power at the date of the
Senior Subordinated Note Indenture and (ii) any other subsidiary that executes
a Subordinated Subsidiary Guarantee in accordance with the provisions of the
Senior Subordinated Note Indenture, and their respective successors and
assigns.
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OPTIONAL REDEMPTION
The Senior Subordinated Exchange Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice.
Prior to May 15, 2003, the Senior Subordinated Exchange Notes will be
redeemable at a redemption price equal to 100% of the principal amount thereof
plus the applicable Senior Subordinated Notes Make Whole Premium, plus, to the
extent not included in the Senior Subordinated Notes Make Whole Premium,
accrued and unpaid interest and Liquidated Damages, if any, to the date of
redemption. For purposes of the foregoing, "Senior Subordinated Notes Make
Whole Premium" means, with respect to a Senior Subordinated Exchange Note, an
amount equal to the greater of (a) 104.813% of the outstanding principal
amount of such Senior Subordinated Exchange Note and (b) the excess of (1) the
present value of the remaining interest, premium, if any, and principal
payments due on such Senior Subordinated Exchange Note as if such Senior
Subordinated Exchange Note were redeemed on May 15, 2003, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (2) the
outstanding principal amount of such Senior Subordinated Exchange Note.
On or after May 15, 2003, the Senior Subordinated Exchange Notes are
redeemable at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2003.......................................................... 104.813%
2004.......................................................... 103.208%
2005.......................................................... 101.604%
2006 and thereafter........................................... 100.000%
</TABLE>
Notwithstanding the foregoing, during the first 36 months after the date of
the closing of the Acquisition, the Company may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Senior Subordinated
Exchange Notes issued under the Senior Subordinated Note Indenture at a
redemption price of 109.625% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the redemption
date, with the net cash proceeds of one or more Equity Offerings; provided
that at least 65% of the aggregate principal amount of Senior Subordinated
Exchange Notes issued remain outstanding immediately after the occurrence of
such redemption (excluding Senior Subordinated Exchange Notes held by the
Company and its Subsidiaries); and provided, further, that such redemption
shall occur within 120 days of the date of the closing of such Equity
Offering.
SELECTION AND NOTICE
If less than all of the Senior Subordinated Exchange Notes are to be
redeemed or purchased in an offer to purchase at any time, selection of Senior
Subordinated Exchange Notes for redemption or purchase will be made by the
Senior Subordinated Note Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which the Senior
Subordinated Exchange Notes are listed, or, if the Senior Subordinated
Exchange Notes are not so listed, on a pro rata basis, by lot or by such
method as the Senior Subordinated Note Trustee shall deem fair and
appropriate; provided that no Senior Subordinated Exchange Notes of $1,000 or
less shall be redeemed in part. Notices of redemption shall be mailed by first
class mail at least 30 but not more than 60 days before the redemption date to
each Holder of Senior Subordinated Exchange Notes to be redeemed at its
registered address. Notices of redemption may not be conditional. If any
Senior Subordinated Exchange Note is to be redeemed in part only, the notice
of redemption that relates to such Senior Subordinated Exchange Note shall
state the portion of the principal amount thereof to be redeemed. A new Senior
Subordinated Exchange Note in principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Senior Subordinated Exchange Note. Senior Subordinated Exchange
Notes called for redemption become due on the date fixed for redemption. On
and after the redemption date, interest ceases to accrue on Senior
Subordinated Exchange Notes or portions of them called for redemption.
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REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder of Senior
Subordinated Exchange Notes will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder's Senior Subordinated Exchange 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 and Liquidated Damages thereon, if any, to the date of
purchase (the "Change of Control Payment"). Within ten days following any
Change of Control, the Company will mail a notice to each Holder describing
the transaction or transactions that constitute the Change of Control and
offering to repurchase Senior Subordinated Exchange 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 the Senior Subordinated
Note Indenture and described in such notice. The Company will 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 Senior Subordinated
Exchange Notes as a result of a Change of Control.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment all Senior Subordinated Exchange 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 Senior Subordinated Exchange Notes or portions
thereof so tendered and (3) deliver or cause to be delivered to the Senior
Subordinated Exchange Note Trustee the Senior Subordinated Exchange Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Senior Subordinated Exchange Notes or portions thereof
being purchased by the Company. The Paying Agent will promptly mail to each
Holder of Senior Subordinated Exchange Notes so tendered the Change of Control
Payment for such Senior Subordinated Exchange Notes, and the Senior
Subordinated Note Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Senior Subordinated Exchange
Note equal in principal amount to any unpurchased portion of the Senior
Subordinated Exchange Notes surrendered, if any; provided that each such new
Senior Subordinated Exchange Note will be in a principal amount of $1,000 or
an integral multiple thereof. The Senior Subordinated Note Indenture will
provide that, prior to complying with the provisions of this covenant, but in
any event within 90 days following a Change of Control, the Company will
either repay all outstanding Senior Debt other than the Senior Exchange Notes
or obtain the requisite consents, if any, under all agreements governing
outstanding Senior Debt other than the Senior Exchange Notes to permit the
repurchase of Senior Subordinated Exchange Notes required by this covenant.
With respect to the Senior Subordinated Exchange Notes, the Company may effect
a Change of Control hereunder pursuant to the terms of the Senior Subordinated
Note Indenture; provided that the Company complies with the provisions of the
Senior Note Indenture under the covenant described under "Description of the
Senior Exchange Notes--Repurchase at the Option of Holders--Change of
Control." The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
The Change of Control provisions described above will be applicable whether
or not any other provisions of the Senior Subordinated Note Indenture are
applicable. Except as described above with respect to a Change of Control, the
Senior Subordinated Note Indenture does not contain provisions that permit the
Holders of the Senior Subordinated Exchange Notes to require that the Company
repurchase or redeem the Senior Subordinated Exchange Notes in the event of a
takeover, recapitalization or similar transaction.
The Company's other senior indebtedness contains prohibitions on certain
events that would constitute a Change of Control. In addition, the exercise by
the Holders of Senior Subordinated Exchange Notes of their right to require
the Company to repurchase the Senior Subordinated Exchange Notes could cause a
default under such other senior indebtedness, even if the Change of Control
itself does not, due to the financial effect of such repurchases on the
Company. Finally, the Company's ability to pay cash to the Holders of Senior
Subordinated Exchange Notes upon a repurchase may be limited by the Company's
then existing financial resources. See "Risk Factors--Risks Relating to the
Notes--Limitation on Change of Control Offer."
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The Senior Credit Facilities currently prohibit the Company from purchasing
any Senior Exchange Notes or Senior Subordinated Exchange Notes, and also
provide that certain change of control events with respect to the Company
would constitute a default thereunder. Any future credit agreements or other
agreements relating to Senior Debt to which the Company becomes a party may
contain similar restrictions and provisions. In the event a Change of Control
occurs at a time when the Company is prohibited from purchasing Senior
Subordinated Exchange Notes, the Company could seek the consent of its lenders
to the purchase of Senior Subordinated Exchange Notes or could attempt to
refinance the borrowings that contain such prohibition. If the Company does
not obtain such a consent or repay such borrowings, the Company will remain
prohibited from purchasing Senior Subordinated Exchange Notes. In such case,
the Company's failure to purchase tendered Senior Subordinated Exchange Notes
would constitute an Event of Default under the Senior Subordinated Note
Indenture which would, in turn, constitute a default under the Senior Credit
Facilities. In such circumstances, the subordination provisions in the Senior
Subordinated Note Indenture would likely restrict payments to the Holders of
Senior Subordinated Exchange Notes. See "--Subordination."
The Company will not be required to make a Change of Control Offer upon a
Change of Control 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 in the Senior Subordinated Note Indenture applicable to a Change of
Control Offer made by the Company and purchases all Senior Subordinated
Exchange Notes validly tendered and not withdrawn under such Change of Control
Offer or if the Company exercises its option to purchase the Senior
Subordinated Exchange Notes.
"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, (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, except
that a person shall be deemed to have "beneficial ownership" of all securities
that such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting Stock of
the Company (measured by voting power rather than number of shares) or (iv)
the first day on which a majority of the members of the Board of Directors of
the Company are not Continuing Directors.
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Subsidiaries taken as a whole. Although
there is a developing body of case law interpreting the phrase "substantially
all," there is no precise established definition of the phrase under
applicable law. Accordingly, the ability of a Holder of Senior Subordinated
Exchange Notes to require the Company to repurchase such Senior Subordinated
Exchange Notes as a result of a sale, lease, transfer, conveyance or other
disposition of less than all of the assets of the Company and its Subsidiaries
taken as a whole to another Person or group may be uncertain.
"Continuing Directors" means, as of any date of determination, any member of
the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the closing of the Acquisition or (ii) was nominated
for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Principals" means Lehman Brothers Merchant Banking Partners II L.P., any of
its respective Affiliates and executive officers of the Company as of the date
of the closing of the Acquisition.
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) any
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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).
ASSET SALES
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, consummate an Asset
Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the
fair market value as determined in good faith by the Company (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Senior Subordinated Note Trustee with respect to any Asset
Sale determined to have a value greater that $25.0 million) of the assets or
Equity Interests issued or sold or otherwise disposed of and (ii) at least 75%
of the consideration therefor received by the Company or such Subsidiary is in
the form of cash, Cash Equivalents or Marketable Securities; provided that the
following amounts shall be deemed to be cash: (w) any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent balance sheet), of
the Company or any Restricted Subsidiary (other than contingent liabilities
and liabilities that are by their terms subordinated to the Senior
Subordinated Exchange Notes or any guarantee thereof) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further liability, (x)
any securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company
or such Restricted Subsidiary into cash within 180 days following the closing
of such Asset Sale (to the extent of the cash received), (y) any Designated
Noncash Consideration received by the Company or any of its Restricted
Subsidiaries in such Asset Sale; provided that the aggregate fair market value
(as determined above) of such Designated Noncash Consideration, taken together
with the fair market value at the time of receipt of all other Designated
Noncash Consideration received pursuant to this clause (y) less the amount of
Net Proceeds previously realized in cash from prior Designated Noncash
Consideration is less than 5% of Total Assets at the time of the receipt of
such Designated Noncash Consideration (with the fair market value of each item
of Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value) and (z) Additional
Assets received in an exchange of assets transaction.
Within 360 days after the receipt of any cash Net Proceeds from an Asset
Sale, the Company or such Restricted Subsidiary, at its option, may apply such
cash Net Proceeds, at its option, (a) to repay Senior Debt of the Company or
any Restricted Subsidiary including, without limitation, Indebtedness under a
Credit Facility and the Senior Exchange Notes, (b) to the acquisition of a
majority of the assets of, or a majority of the Voting Stock of, another
Permitted Business, the making of a capital expenditure or the acquisition of
other assets or Investments that are used or useful in a Permitted Business or
(c) to apply the cash Net Proceeds from such Asset Sale to an Investment in
Additional Assets. Any cash Net Proceeds from Asset Sales that are not applied
or invested as provided in the first sentence of this paragraph will be deemed
to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company will be required to make an offer to all
Holders of Senior Subordinated Exchange Notes and all holders of other
Indebtedness that is not Senior Debt containing provisions similar to those
set forth in the Senior Subordinated Note Indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets (an "Asset Sale
Offer") to purchase the maximum principal amount of Senior Subordinated
Exchange Notes and such other Indebtedness that may be purchased out of the
Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase, in accordance with the
procedures set forth in the Senior Subordinated Note Indenture and such other
Indebtedness. To the extent that any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Company may use such Excess Proceeds for any
purpose not otherwise prohibited by the Senior Subordinated Note Indenture. If
the aggregate principal amount of Senior Subordinated Exchange Notes and such
other Indebtedness tendered into such Asset Sale Offer surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Senior Subordinated Note
Trustee shall select the Senior Subordinated Exchange Notes and such other
Indebtedness to be purchased on a pro rata basis. Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be reset at zero.
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CERTAIN COVENANTS
RESTRICTED PAYMENTS
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly: (i) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company or any of
its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company); (ii) purchase,
redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the
Company) any Equity Interests of the Company or any direct or indirect parent
of the Company; (iii) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any Indebtedness that
is subordinated to the Senior Subordinated Exchange Notes or any Subordinated
Subsidiary Guarantee, except a payment of interest or principal at Stated
Maturity or Indebtedness permitted under clause (viii) of the covenant
described under "--Incurrence of Indebtedness and Issuance of Preferred
Stock;" or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of the covenant
described below under caption "--Incurrence of Indebtedness and Issuance of
Preferred Stock;" and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Subsidiaries after
the date of the closing of the Acquisition (excluding Restricted Payments
permitted by clauses (ii), (iii), (iv), (v), and (ix) of the next
succeeding paragraph), is less than the sum, without duplication, of (i)
50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter
commencing after the date of the closing of the Acquisition to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is a deficit, less
100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds or
the fair market value of property other than cash received by the Company
since the date of the closing of the Acquisition as a contribution to its
common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of
Disqualified Stock or debt securities of the Company that have been
converted into such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a Subsidiary of
the Company), plus (iii) to the extent that either any Existing Citizens
Power Investment or any Restricted Investment that reduced the amount
available for Restricted Payments under this clause (c) is sold for cash or
otherwise liquidated or repaid for cash or any dividend or payment is
received by the Company or a Restricted Subsidiary after the date of the
closing of the Acquisition in respect of such Investment, 100% of the
amount of Net Proceeds or dividends or payments (including the fair market
value of property) received in connection therewith, up to the amount of
the Existing Citizens Power Investment on the date of the closing of the
Acquisition or the Restricted Investment that reduced this clause (c), as
the case may be, and thereafter 50% of the amount of Net Proceeds or
dividends or payments (including the fair market value of property)
received in connection therewith (except that the amount of dividends or
payments received in respect of payments of Obligations in respect of such
Investments, such as taxes, shall not increase the amounts under this
clause (c)), plus (iv) to the extent that any Unrestricted Subsidiary of
the Company is redesignated as a Restricted Subsidiary after the date of
the closing of the Acquisition, 100% of the fair
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market value of the Company's Investment in such Subsidiary as of the date
of such redesignation up to the amount of the Restricted Investments made
in such Subsidiary that reduced this clause (c) and 50% of the excess of
the fair market value of the Company's Investment in such Subsidiary as of
the date of such redesignation over (1) the amount of the Restricted
Investment that reduced this clause (c) and (2) any amounts that increased
the amount available as a Permitted Investment; provided, further, that if
Citizens Power or any of its Subsidiaries is designated as a Restricted
Subsidiary, the amount of the fair market value of the Investment therein
on the date of the Senior Subordinated Note Indenture shall also be
credited to this clause (c); provided, further, that any amounts that
increase this clause (c) shall not duplicatively increase amounts available
as Permitted Investments.
The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of the Senior Subordinated Note Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of, other Equity Interests of the Company (other than any
Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)(ii) of
the preceding paragraph;
(iii) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(iv) dividends or distributions by a Restricted Subsidiary of the Company
so long as, in the case of any dividend or distribution payable on or in
respect of any class or series of securities issued by a Restricted
Subsidiary, the Company or a Restricted Subsidiary receives at least its
pro rata share of such dividend or distribution in accordance with its
Equity Interests in such class or series of securities;
(v) Investments in Unrestricted Subsidiaries having an aggregate fair
market value not to exceed the amount, at the time of such Investment,
substantially concurrently contributed in cash or Cash Equivalents to the
common equity capital of the Company after the date of the closing of the
Acquisition; provided that any such amount contributed shall be excluded
from the calculation made pursuant to clause (c) above;
(vi) the payment of dividends on the Company's Common Stock, following
the first public offering of the Company's Common Stock after the date of
the closing of the Acquisition, of up to 6% per annum of the net proceeds
received by the Company in such public offering, other than public
offerings with respect to the Company's Common Stock registered on Form S-
8;
(vii) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company or any Restricted Subsidiary
of the Company held by any present or former employee or director of the
Company (or any of its Restricted Subsidiaries) pursuant to any management
equity subscription agreement or stock option agreement or any other
management or employee benefit plan in effect as of the date of the closing
of the Acquisition; provided that (A) the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $2.0 million in any twelve-month period (with unused amounts in any
calendar year being carried over to succeeding calendar years subject to a
maximum (without giving effect to the following proviso) of $5.0 million in
any calendar year); provided further that such amount in any calendar year
may be increased by an amount not to exceed (x) the cash proceeds from the
sale of Equity Interests of the Company or a Restricted Subsidiary to
members of management and directors of the Company and its Subsidiaries
that occurs after the date of the closing of the Acquisition, plus (y) the
cash proceeds of key-man life insurance policies received by the Company
and its Restricted Subsidiaries after the date of the closing of the
Acquisition, less (z) the amount of any Restricted Payments previously made
pursuant to clauses (x) and (y) of this subparagraph (vii); and, provided
further, that cancellation of Indebtedness owing to the Company from
members of management of
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the Company or any of its Restricted Subsidiaries in connection with a
repurchase of Equity Interests of the Company or a Restricted Subsidiary
will not be deemed to constitute a Restricted Payment for purposes of this
covenant or any other provision of the Senior Subordinated Note Indenture
and (B) no Default or Event of Default shall have occurred and be
continuing immediately after such transaction;
(viii) repurchases of Equity Interests deemed to occur upon exercise of
stock options if such Equity Interests represent a portion of the exercise
price of such options; and
(ix) other Restricted Payments not otherwise prohibited by this covenant
in an aggregate amount not to exceed $25.0 million under this clause (ix).
All of the Company's Subsidiaries other than Citizens Power and its
Subsidiaries are Restricted Subsidiaries. The Board of Directors may designate
any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation
would not cause a Default. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated will be deemed
to be Restricted Payments at the time of such designation and will reduce the
amount available for Restricted Payments under the first paragraph of this
covenant. All such outstanding Investments will be deemed to constitute
Investments in an amount equal to the fair market value of such Investments at
the time of such designation. Such designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
If, at any time, any Unrestricted Subsidiary would fail to meet the
requirements in the definition of "Unrestricted Subsidiary" as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of the Senior Subordinated Note Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of
the Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under the covenant described under the caption "--
Incurrence of Indebtedness and Issuance of Preferred Stock," the Company shall
be in default of such covenant). The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only
be permitted if (i) such Indebtedness is permitted under the covenant
described under the caption "--Incurrence of Indebtedness and Issuance of
Preferred Stock," calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period, and (ii) no
Default or Event of Default would be in existence following such designation.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any noncash Restricted Payment or any adjustment made
pursuant to paragraph (c) of this covenant shall be determined by the Board of
Directors whose resolution with respect thereto shall be delivered to the
Senior Subordinated Note Trustee, such determination to be based upon an
opinion or appraisal issued by an accounting, appraisal or investment banking
firm of national standing if such fair market value exceeds $25.0 million. Not
later than the date of making any Restricted Payment, the Company shall
deliver to the Senior Subordinated Note Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by the covenant "Restricted Payments"
were computed.
If any Restricted Investment is sold or otherwise liquidated or repaid or
any dividend or payment is received by the Company or a Restricted Subsidiary
and such amounts may be credited to clause (c) above, then such amounts will
be credited only to the extent of amounts not otherwise included in
Consolidated Net Income and that do not otherwise increase the amount
available as a Permitted Investment.
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INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to (collectively,
"incur") any Indebtedness (including Acquired Debt) and that the Company will
not issue any Disqualified Stock and will not permit any of its Subsidiaries
to issue any shares of preferred stock; provided, however, that the Company
may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock and the Company's Restricted Subsidiaries may incur
Indebtedness or issue Disqualified Stock or preferred stock if the Fixed
Charge Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have been at least 2.0
to 1.0, determined on a pro forma basis (including a pro forma application of
the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or preferred stock had been issued, as the
case may be, at the beginning of such four-quarter period.
The provisions of the first paragraph of this covenant will not apply to the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company of term Indebtedness under Credit
Facilities (and the Guarantee thereof by the Senior Subordinated Note
Guarantors); provided that the aggregate principal amount of all term
Indebtedness outstanding under this clause (i) after giving effect to such
incurrence does not exceed an amount equal to $920.0 million;
(ii) the incurrence by the Company of revolving credit Indebtedness and
letters of credit (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) under Credit Facilities (and the
Guarantee thereof by the Senior Subordinated Note Guarantors); provided
that the aggregate principal amount of all revolving credit Indebtedness
outstanding under this clause (ii) after giving effect to such incurrence
does not exceed an amount equal to $480.0 million;
(iii) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(iv) the incurrence by the Company, the Senior Subordinated Note
Guarantors and the Senior Note Guarantors of Indebtedness represented by
the Senior Exchange Notes, the Senior Subordinated Exchange Notes, the
Senior Subsidiary Guarantees and the Subordinated Subsidiary Guarantees
limited in aggregate principal amount, without duplication, to amounts
outstanding under the Senior Note Indenture and the Senior Subordinated
Note Indenture as of their respective dates;
(v) (A) the guarantee by the Company or any of the Senior Subordinated
Note Guarantors of Indebtedness of the Company or a Restricted Subsidiary
of the Company or (B) the incurrence of Indebtedness of a Restricted
Subsidiary to the extent that such Indebtedness is supported by a letter of
credit, in each case that was permitted to be incurred by another provision
of this covenant;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness (including Capital Lease Obligations) to finance the
acquisition (including by direct purchase, by lease or indirectly by the
acquisition of the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of such acquisition) or improvement of property
(real or personal) in an aggregate principal amount which, when aggregated
with the principal amount of all other Indebtedness then outstanding
pursuant to this clause (vi) and including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (vi), does not exceed an amount equal to
5% of Total Assets at the time of such incurrence;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted by the Senior Subordinated
Note Indenture to be incurred under the first paragraph hereof or clauses
(iii), (iv) or (vii) of this paragraph;
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(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Senior Subordinated Exchange Notes and (ii)(A) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary thereof and (B) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary thereof shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(viii);
(ix) the incurrence by the Company or any of its Restricted Subsidiaries
of Hedging Obligations that are incurred in the ordinary course of business
for the purpose of risk management and not for the purpose of speculation;
(x) the incurrence by the Company's Unrestricted Subsidiaries of Non-
Recourse Debt, provided, however, that if any such Indebtedness ceases to
be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (x), and
the issuance of preferred stock by Unrestricted Subsidiaries;
(xi) the incurrence of Indebtedness solely in respect of performance,
surety and similar bonds or completion or performance guarantees
(including, without limitation, performance guarantees pursuant to coal
supply agreements or equipment leases), to the extent that such incurrence
does not result in the incurrence of any obligation for the payment of
borrowed money to others;
(xii) the incurrence of Indebtedness arising from agreements of the
Company or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or a
Subsidiary; provided, however that (i) such Indebtedness is not reflected
on the balance sheet of the Company or any Restricted Subsidiary
(contingent obligations referred to in a footnote to financial statements
and not otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this clause (i)) and (ii)
the maximum assumable liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds including noncash proceeds (the fair
market value of such noncash proceeds being measured at the time received
and without giving effect to any subsequent changes in value) actually
received by the Company and its Restricted Subsidiaries in connection with
such disposition;
(xiii) the guarantee by the Company or any of the Senior Subordinated
Note Guarantors of additional Indebtedness relating to Black Beauty Coal
Company not to exceed $50.0 million in aggregate principal amount
outstanding at any one time under this clause (xiii);
(xiv) the incurrence of Indebtedness relating to the Bengalla Joint
Venture or the Warkworth Associates Joint Venture in an aggregate amount
not to exceed $100.0 million in aggregate principal amount outstanding at
any one time under this clause (xiv); and
(xv) the incurrence by the Company or any of its Restricted Subsidiaries
of additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (xv), not to exceed $250.0
million.
For purposes of determining compliance with this covenant, in the event that
an item of Indebtedness meets the criteria of more than one of the categories
of Permitted Debt described in clauses (i) through (xv) above or is entitled
to be incurred pursuant to the first paragraph of this covenant, the Company
shall, in its sole discretion, classify or reclassify such item of
Indebtedness in any manner that complies with this covenant. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be deemed
to be an incurrence of
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Indebtedness or an issuance of Disqualified Stock for purposes of this
covenant; provided, in each such case, that the amount thereof is included in
Fixed Charges of the Company as accrued.
LIENS
The Senior Subordinated Note Indenture provides that the Company will not
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind securing Indebtedness or trade payables
(other than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired, unless all payments due under the Senior Subordinated
Note Indenture and the Senior Subordinated Exchange Notes are secured on an
equal and ratable basis with the obligations so secured until such time as
such obligations are no longer secured by a Lien.
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Restricted Subsidiary
that is not a Senior Subordinated Note Guarantor to (i)(a) pay dividends or
make any other distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any other
interest or participation in, or measured by, its profits, or (b) pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Company or any of its Restricted Subsidiaries or
(iii) transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries. However, the foregoing restrictions will not apply to
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date of the closing of the Acquisition, (b)
the Senior Credit Facilities as in effect as of the date of the closing of the
Acquisition, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof,
provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacement or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other payment
restrictions than those contained in the Senior Credit Facilities as in effect
on the date of the closing of the Acquisition, (c) the Senior Note Indenture,
the Senior Subordinated Note Indenture, the Senior Exchange Notes and the
Senior Subordinated Exchange Notes, (d) applicable law or any applicable rule,
regulation or order, (e) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the
extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of the
Senior Subordinated Note Indenture to be incurred, (f) customary non-
assignment provisions in leases and other agreements entered into in the
ordinary course of business and consistent with past practices, (g) purchase
money obligations for property acquired in the ordinary course of business
that impose restrictions of the nature described in clause (iii) above on the
property so acquired, (h) any agreement for the sale of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary pending
its sale, (i) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained
in the agreements governing the Indebtedness being refinanced, (j) secured
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
the covenant described above under the caption "--Liens" that limits the right
of the debtor to dispose of the assets securing such Indebtedness, (k)
provisions with respect to the disposition or distribution of assets or
property in joint venture agreements and other similar agreements entered into
in the ordinary course of business, (l) restrictions on cash or other deposits
or net worth imposed by customers or lessors under contracts or leases entered
into in the ordinary course of business and (m) any encumbrances or
restrictions imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (a) through (l)
above, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, in the
good faith judgment of the Company's Board of Directors, not materially more
restrictive in the aggregate with respect to such dividend and other payment
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restrictions than those (considered as a whole) contained in the dividend or
other payment restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Senior Subordinated Note Indenture provides that the Company may not
consolidate or merge with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity unless (i) the Company
is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia; (ii) the
entity or Person formed by or surviving any such consolidation or merger (if
other than the Company) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of the Company under the Senior Subordinated
Registration Rights Agreement, the Senior Subordinated Exchange Notes and the
Senior Subordinated Note Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Senior Subordinated Note Trustee; (iii)
immediately after such transaction no Default or Event of Default exists; and
(iv) except in the case of a merger of the Company with or into a Wholly Owned
Restricted Subsidiary of the Company, immediately after giving pro forma
effect to such transaction, as if such transaction had occurred at the
beginning of the applicable four-quarter period, (A) the entity surviving such
consolidation or merger would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of the covenant described above under the caption
"--Incurrence of Indebtedness and Issuance of Preferred Stock" or (B) the
Fixed Charge Coverage Ratio for the Company or the entity or Person formed by
or surviving any such consolidation or merger (if other than the Company), or
to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made would, immediately after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, not be less than such Fixed Charge Coverage
Ratio for the Company and its Restricted Subsidiaries immediately prior to
such transaction. The Senior Subordinated Note Indenture also provides that
the Company may not, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions, to any other
Person. The provisions of this covenant will not be applicable to a sale,
assignment, transfer, conveyance or other disposition of assets between or
among the Company and its Restricted Subsidiaries.
Notwithstanding the foregoing clause (iv), (i) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company and (ii) the Company may merge with an Affiliate that
has no significant assets or liabilities and was formed solely for the purpose
of changing the jurisdiction of organization of the Company in another State
of the United States or the form of organization of the Company so long as the
amount of Indebtedness of the Company and its Restricted Subsidiaries is not
increased thereby and provided that the successor assumes all the obligations
of the Company under the Senior Subordinated Registration Rights Agreement,
the Senior Subordinated Exchange Notes and the Senior Subordinated Note
Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Senior Subordinated Note Trustee.
TRANSACTIONS WITH AFFILIATES
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, make any payment
to, or sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or make or
amend any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each of the foregoing,
an "Affiliate Transaction") involving aggregate payments or consideration in
excess of $5.0 million, unless (i) such Affiliate Transaction is on terms that
are materially no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable
transaction by the
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Company or such Restricted Subsidiary with an unrelated Person and (ii) the
Company delivers to the Senior Subordinated Note Trustee (a) with respect to
any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $10.0 million, a resolution of
the Board of Directors set forth in an Officers' Certificate certifying that
such Affiliate Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the members of the
Board of Directors and (b) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess
of $25.0 million, an opinion as to the fairness to the Holders of such
Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, the following items shall not be deemed to be
Affiliate Transactions: (i) any employment agreement or other compensation
plan or arrangement for employees entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company or such Restricted Subsidiary; (ii)
transactions between or among the Company and/or its Restricted Subsidiaries;
(iii) payment of reasonable fees to officers, directors, employees or
consultants of the Company; (iv) Restricted Payments that are permitted by,
and Investments that are not prohibited by, the provisions of the Senior
Subordinated Note Indenture described above under the caption "--Restricted
Payments;" (v) indemnification payments made to officers, directors and
employees of the Company or any Restricted Subsidiary pursuant to charter,
bylaw, statutory or contractual provisions; (vi) the payment of customary
annual management, consulting and advisory fees and related expenses to Lehman
Merchant Bank and its Affiliates; (vii) payments by the Company or any of its
Restricted Subsidiaries to Lehman Merchant Bank and its Affiliates made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures which payments are approved by
a majority of the Board of Directors of the Company in good faith; (viii) the
existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders'
agreement (including any registration rights agreement or purchase agreement
related thereto) to which it is a party as of the date of the closing of the
Acquisition and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by the Company or
any of its Restricted Subsidiaries of obligations under any future amendment
to any such existing agreement or under any similar agreement entered into
after the date of the closing of the Acquisition shall only be permitted by
this clause (viii) to the extent that the terms of any such amendment or new
agreement are not otherwise disadvantageous to the Holders in any material
respect; (ix) transactions pursuant to the terms of the Transaction Documents
in effect on the date of the closing of the Acquisition; (x) transactions with
Unrestricted Subsidiaries, customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods or services, in each case in the
ordinary course of business (including, without limitation, pursuant to joint
venture agreements) and otherwise in compliance with the terms of the Senior
Subordinated Note Indenture which are, in the aggregate (taking into account
all the costs and benefits associated with such transactions), materially no
less favorable to the Company or its Restricted Subsidiaries than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person, in the reasonable
determination of the Board of Directors of the Company or the senior
management thereof, or are on terms at least as favorable as might reasonably
have been obtained at such time from an unaffiliated party; (xi) guarantees of
performance by the Company and its Restricted Subsidiaries of Unrestricted
Subsidiaries in the ordinary course of business, except for guarantees of
Obligations in respect of borrowed money; and (xii) pledges of Equity
Interests of Unrestricted Subsidiaries for the benefit of lenders of
Unrestricted Subsidiaries.
ADDITIONAL SUBORDINATED SUBSIDIARY GUARANTEES
The Senior Subordinated Note Indenture provides that if the Company or any
of its Domestic Subsidiaries shall acquire or create another Domestic
Subsidiary after the date of the Senior Subordinated Note Indenture and such
Domestic Subsidiary provides a guarantee of the Senior Credit Facilities, then
such newly acquired or created Domestic Subsidiary shall execute a
supplemental indenture in form and substance satisfactory to the Senior
Subordinated Note Trustee providing that such Domestic Subsidiary shall become
a Senior Subordinated Note Guarantor under the Senior Subordinated Note
Indenture, provided, however, this covenant shall not apply
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to any Domestic Subsidiary that has been properly designated as an
Unrestricted Subsidiary in accordance with the Senior Subordinated Note
Indenture for so long as it continues to constitute an Unrestricted
Subsidiary.
NO SENIOR SUBORDINATED DEBT
The Senior Subordinated Note Indenture provides that (i) the Company will
not incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to any Senior
Debt and senior in any respect in right of payment to the Senior Subordinated
Exchange Notes, and (ii) no Senior Subordinated Note Guarantor will incur,
create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to the Senior
Subsidiary Guarantees and senior in any respect in right of payment to the
Subordinated Subsidiary Guarantees.
BUSINESS ACTIVITIES
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any business other than Permitted Businesses, except to such extent
as would not be material to the Company and its Restricted Subsidiaries taken
as a whole.
PAYMENTS FOR CONSENT
The Senior Subordinated Note Indenture provides that neither the Company nor
any of its Restricted Subsidiaries will, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or otherwise, to
any Holder of any Senior Subordinated Exchange Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Senior Subordinated Note Indenture or the Senior Subordinated Exchange Notes
unless such consideration is offered to be paid or is paid to all Holders of
the Senior Subordinated Exchange Notes that consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
REPORTS
The Senior Subordinated Note Indenture provides that, whether or not
required by the rules and regulations of the Commission, so long as any Senior
Subordinated Exchange Notes are outstanding, the Company will furnish to the
Holders of Senior Subordinated Exchange Notes (i) all quarterly and annual
financial information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Company were required to file
such Forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that describes the financial condition
and results of operations of the Company and its consolidated Subsidiaries
(showing in reasonable detail, either on the face of the financial statements
or in the footnotes thereto and in Management's Discussion and Analysis of
Financial Condition and Results of Operations, the financial condition and
results of operations of the Company and its Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company) and, with respect to the annual information only,
a report thereon by the Company's certified independent accountants and (ii)
all current reports that would be required to be filed with the Commission on
Form 8-K if the Company were required to file such reports, in each case
within the time periods specified in the Commission's rules and regulations.
In addition, following the consummation of the exchange offer contemplated by
the Senior Subordinated Registration Rights Agreement, whether or not required
by the rules and regulations of the Commission, the Company will file a copy
of all such information and reports with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission will not accept such a filing) and make
such information available to securities analysts and prospective investors
upon request. In addition, the Company and the Senior Subordinated Note
Guarantors have agreed that, for so long as any Senior Subordinated Exchange
Notes remain outstanding, they will furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
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EVENTS OF DEFAULT AND REMEDIES
The Senior Subordinated Note Indenture provides that each of the following
constitutes an Event of Default: (i) default for 30 days in the payment when
due of interest on, or Liquidated Damages, if any, with respect to, the Senior
Subordinated Exchange Notes (whether or not prohibited by the subordination
provisions of the Senior Subordinated Note Indenture); (ii) default in payment
when due of the principal of or premium, if any, on the Senior Subordinated
Exchange Notes (whether or not prohibited by the subordination provisions of
the Senior Subordinated Note Indenture); (iii) failure by the Company or any
of its Subsidiaries to make the offer required or to purchase any of the
Senior Subordinated Exchange Notes as required under the provisions described
under the captions "--Change of Control," or "--Asset Sales;" (iv) failure by
the Company or any of its Subsidiaries for 30 days after notice to comply with
the provisions of the covenants entitled "--Restricted Payments" or "--
Incurrence of Indebtedness and Issuance of Preferred Stock;" or failure by the
Company or any of its Subsidiaries for 60 days after notice to comply with any
of its other agreements in the Senior Subordinated Note Indenture or the
Senior Subordinated Exchange Notes; (v) default under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee
now exists, or is created after the date of the Senior Subordinated Note
Indenture, which default results in the acceleration of such Indebtedness
prior to its express maturity and the principal amount of any such
Indebtedness aggregates $50.0 million or more; (vi) failure by the Company or
any of its Restricted Subsidiaries or any group of Restricted Subsidiaries
that, taken as a whole, would be a Significant Subsidiary to pay final
judgments aggregating in excess of $50.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days; (vii) except as permitted
by the Senior Subordinated Note Indenture, any Subordinated Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Senior Subordinated Note Guarantor, or any Person acting on behalf of any
Senior Subordinated Note Guarantor, shall deny or disaffirm its obligations
under its Subordinated Subsidiary Guarantee; (viii) certain events of
bankruptcy or insolvency with respect to the Company, any of its Significant
Subsidiaries that are Restricted Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would be a Significant Subsidiary; and
(ix) any failure of the Company to deposit the required amounts into the
Escrow Account pursuant to the Escrow Letter or any failure of the proceeds of
the Escrow Account to be applied as required under the Escrow Letter.
If any Event of Default occurs and is continuing, the Senior Subordinated
Note Trustee or the Holders of at least 25% in principal amount of the then
outstanding Senior Subordinated Exchange Notes may declare all the Senior
Subordinated Exchange Notes to be due and payable immediately; provided, that
so long as any Indebtedness permitted to be incurred pursuant to the Senior
Credit Facilities shall be outstanding, such acceleration shall not be
effective until the earlier of (i) an acceleration of any such Indebtedness
under the Senior Credit Facilities or (ii) five business days after receipt by
the Company of written notice of such acceleration of the Senior Subordinated
Exchange Notes. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, 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, all outstanding Senior Subordinated Exchange Notes
will become due and payable without further action or notice. Holders of the
Senior Subordinated Exchange Notes may not enforce the Senior Subordinated
Note Indenture or the Senior Subordinated Exchange Notes except as provided in
the Senior Subordinated Note Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Senior
Subordinated Exchange Notes may direct the Senior Subordinated Note Trustee in
its exercise of any trust or power. The Senior Subordinated Note Trustee may
withhold from Holders of the Senior Subordinated Exchange Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company
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would have had to pay if the Company then had elected to redeem the Senior
Subordinated Exchange Notes pursuant to the optional redemption provisions of
the Senior Subordinated Note Indenture, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon
the acceleration of the Senior Subordinated Exchange Notes. If an Event of
Default occurs prior to May 15, 2003 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding paying the premium upon redemption of the Senior
Subordinated Exchange Notes prior to May 15, 2003, then the premium specified
in the Senior Subordinated Note Indenture shall also become immediately due
and payable to the extent permitted by law upon the acceleration of the Senior
Subordinated Exchange Notes.
The Holders of a majority in aggregate principal amount of the Senior
Subordinated Exchange Notes then outstanding by notice to the Senior
Subordinated Note Trustee may on behalf of the Holders of all of the Senior
Subordinated Exchange Notes waive any existing Default or Event of Default and
its consequences under the Senior Subordinated Note Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Senior Subordinated Exchange Notes.
The Company is required to deliver to the Senior Subordinated Note Trustee
annually a statement regarding compliance with the Senior Subordinated Note
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Senior Subordinated Note Trustee a
statement specifying such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company
or any Person controlling such Person, as such, shall have any liability for
any obligations of the Company under the Senior Subordinated Exchange Notes,
the Subordinated Subsidiary Guarantees, the Senior Subordinated Note Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Senior Subordinated Exchange Notes by accepting
a Senior Subordinated Exchange Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the
Senior Subordinated Exchange 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.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Senior Subordinated
Exchange Notes ("Legal Defeasance") except for (i) the rights of Holders of
outstanding Senior Subordinated Exchange Notes to receive payments in respect
of the principal of, premium, if any, and interest and Liquidated Damages, if
any, on such Senior Subordinated Exchange Notes when such payments are due
from the trust referred to below, (ii) the Company's obligations with respect
to the Senior Subordinated Exchange Notes concerning issuing temporary Senior
Subordinated Exchange Notes, registration of Senior Subordinated Exchange
Notes, mutilated, destroyed, lost or stolen Senior Subordinated Exchange Notes
and the maintenance of an office or agency for payment and money for security
payments held in trust, (iii) the rights, powers, trusts, duties and
immunities of the Senior Subordinated Note Trustee, and the Company's
obligations in connection therewith and (iv) the Legal Defeasance provisions
of the Senior Subordinated Note Indenture. In addition, the Company may, at
its option and at any time, elect to have the obligations of the Company
released with respect to certain covenants that are described in the Senior
Subordinated Note Indenture ("Covenant Defeasance") and thereafter any
omission to comply with such obligations shall not constitute a Default or
Event of Default with respect to the Senior Subordinated Exchange Notes. In
the event Covenant Defeasance occurs, certain events (not including non-
payment, bankruptcy, receivership, rehabilitation and insolvency events)
described under "Events of Default" will no longer constitute an Event of
Default with respect to the Senior Subordinated Exchange Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i) the
Company must irrevocably deposit with the Senior Subordinated Note Trustee, in
trust, for the benefit of the Holders of the Senior Subordinated Exchange
Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination
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thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest and Liquidated Damages, if any, on the
outstanding Senior Subordinated Exchange Notes on the stated maturity or on
the applicable redemption date, as the case may be, and the Company must
specify whether the Senior Subordinated Exchange Notes are being defeased to
maturity or to a particular redemption date; (ii) in the case of Legal
Defeasance, the Company shall have delivered to the Senior Subordinated Note
Trustee an opinion of counsel in the United States reasonably acceptable to
the Senior Subordinated Note Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of the Senior Subordinated Note 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 shall confirm that,
the Holders of the outstanding Senior Subordinated Exchange 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; (iii) in the case of Covenant
Defeasance, the Company shall have delivered to the Senior Subordinated Note
Trustee an opinion of counsel in the United States reasonably acceptable to
the Senior Subordinated Note Trustee confirming that the Holders of the
outstanding Senior Subordinated Exchange 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; (iv) no Default or Event of Default
shall have occurred and be continuing on the date of such deposit (other than
a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) or insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the
effective date of the defeasance; (v) such Legal Defeasance or Covenant
Defeasance will not result in a breach or violation of, or constitute a
default under any material agreement or instrument (other than the Senior
Subordinated Note 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; (vi)
the Company must have delivered to the Senior Subordinated Note Trustee, at or
prior to the effective date of such defeasance, an opinion of counsel to the
effect that at the effective date of such defeasance, the trust funds will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally; (vii)
the Company must deliver to the Senior Subordinated Note Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Senior Subordinated Exchange Notes over
the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and (viii) the
Company must deliver to the Senior Subordinated Note Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
TRANSFER AND EXCHANGE
A Holder may transfer or exchange Senior Subordinated Exchange Notes in
accordance with the Senior Subordinated Note Indenture. The Registrar and the
Senior Subordinated Note Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Senior Subordinated Note Indenture. The Company is not required to transfer or
exchange any Senior Subordinated Exchange Note selected for redemption. Also,
the Company is not required to transfer or exchange any Senior Subordinated
Exchange Note for a period of 15 days before a selection of Senior
Subordinated Exchange Notes to be redeemed.
The registered Holder of a Senior Subordinated Exchange Note will be treated
as the owner of it for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Senior
Subordinated Note Indenture or the Senior Subordinated Exchange Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Senior Subordinated Exchange Notes then outstanding
(including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for,
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Senior Subordinated Exchange Notes), and any existing default or compliance
with any provision of the Senior Subordinated Note Indenture or the Senior
Subordinated Exchange Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Senior Subordinated
Exchange Notes (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Senior Subordinated
Exchange Notes).
Without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Senior Subordinated Exchange Notes held by a non-
consenting Holder): (i) reduce the principal amount of Senior Subordinated
Exchange Notes whose Holders must consent to an amendment, supplement or
waiver, (ii) reduce the principal of or change the fixed maturity of any
Senior Subordinated Exchange Note or alter the provisions with respect to the
redemption of the Senior Subordinated Exchange Notes (other than provisions
relating to the covenants described above under the caption "--Repurchase at
the Option of Holders"), (iii) reduce the rate of or change the time for
payment of interest on any Senior Subordinated Exchange Note, (iv) waive a
Default or Event of Default in the payment of principal of or premium, if any,
or interest on the Senior Subordinated Exchange Notes (except a rescission of
acceleration of the Senior Subordinated Exchange Notes by the Holders of at
least a majority in aggregate principal amount of the Senior Subordinated
Exchange Notes and a waiver of the payment default that resulted from such
acceleration), (v) make any Senior Subordinated Exchange Note payable in money
other than that stated in the Senior Subordinated Exchange Notes, (vi) make
any change in the provisions of the Senior Subordinated Note Indenture
relating to waivers of past Defaults or the rights of Holders of Senior
Subordinated Exchange Notes to receive payments of principal of or premium, if
any, or interest on the Senior Subordinated Exchange Notes, (vii) waive a
redemption payment with respect to any Senior Subordinated Exchange Note
(other than a payment required by one of the covenants described above under
the caption "--Repurchase at the Option of Holders"), (viii) make any change
in the foregoing amendment and waiver provisions or (iv) release any Senior
Subordinated Note Guarantor from any of its obligations under its Subordinated
Subsidiary Guarantee or this Senior Subordinated Note Indenture, except in
accordance with the terms of this Senior Subordinated Note Indenture. In
addition, any amendment to the provisions of Article 10 of the Senior
Subordinated Note Indenture (which relate to subordination) will require the
consent of the Holders of at least 75% in aggregate principal amount of the
Senior Subordinated Exchange Notes then outstanding if such amendment would
adversely affect the rights of Holders of Senior Subordinated Exchange Notes.
Notwithstanding the foregoing, without the consent of any Holder of Senior
Subordinated Exchange Notes, the Company and the Senior Subordinated Note
Trustee may amend or supplement the Senior Subordinated Note Indenture or the
Senior Subordinated Exchange Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Senior Subordinated Exchange
Notes in addition to or in place of certificated Senior Subordinated Exchange
Notes, to provide for the assumption of the Company's obligations to Holders
of Senior Subordinated Exchange Notes in the case of a merger or consolidation
or sale of all or substantially all of the Company's assets, to make any
change that would provide any additional rights or benefits to the Holders of
Senior Subordinated Exchange Notes or that does not adversely affect the legal
rights under the Senior Subordinated Note Indenture of any such Holder, to
comply with requirements of the Commission in order to effect or maintain the
qualification of the Senior Subordinated Note Indenture under the Trust
Indenture Act, to provide for the issuance of additional Senior Subordinated
Exchange Notes in accordance with the limitations set forth in this Senior
Subordinated Note Indenture as of the date hereof or to allow any Senior
Subordinated Note Guarantor to execute a supplemental Senior Subordinated Note
Indenture and/or a Subordinated Subsidiary Guarantee with respect to the
Senior Subordinated Exchange Notes.
CONCERNING THE SENIOR SUBORDINATED NOTE TRUSTEE
The Senior Subordinated Note Indenture contains certain limitations on the
rights of the Senior Subordinated Note Trustee, should it become a creditor of
the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
otherwise. The Senior Subordinated Note Trustee will be permitted to engage in
other transactions; however, if it acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the Commission for permission
to continue or resign.
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The Holders of a majority in principal amount of the then outstanding Senior
Subordinated Exchange Notes will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Senior Subordinated Note Trustee, subject to certain exceptions. The Senior
Subordinated Note Indenture provides that in case an Event of Default shall
occur (which shall not be cured), the Senior Subordinated Note Trustee will be
required, in the exercise of its power, to use the degree of care of a prudent
man in the conduct of his own affairs. Subject to such provisions, the Senior
Subordinated Note Trustee will be under no obligation to exercise any of its
rights or powers under the Senior Subordinated Note Indenture at the request
of any Holder of Senior Subordinated Exchange Notes, unless such Holder shall
have offered to the Senior Subordinated Note Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
BOOK-ENTRY, DELIVERY AND FORM
The certificates representing the Senior Subordinated Exchange Notes will be
issued in fully registered form. Except as described in the next paragraph,
the Senior Subordinated Exchange Notes initially will be represented by
permanent global Senior Subordinated Exchange Notes, in definitive, fully
registered form without interest coupons (the "Global Senior Subordinated
Exchange Notes") and will be deposited with the Senior Subordinated Note
Trustee as custodian for DTC and registered in the name of a nominee of DTC.
Except as set forth below, the Global Senior Subordinated Exchange Notes may
be transferred, in whole and not in part, only to another nominee of DTC or to
a successor of DTC or its nominee. Beneficial interests in the Global Senior
Subordinated Exchange Notes may not be exchanged for Senior Subordinated
Exchange Notes in certificated form except in the limited circumstances
described below. See "--Exchange of Book-Entry Senior Subordinated Exchange
Notes for Certificated Senior Subordinated Exchange Notes." Except in the
limited circumstances described below, owners of beneficial interests in the
Global Senior Subordinated Exchange Notes will not be entitled to receive
physical delivery of Certificated Senior Subordinated Exchange Notes (as
defined below).
The Senior Subordinated Note Trustee will act as Paying Agent and Registrar.
The Senior Subordinated Exchange Notes may be presented for registration of
transfer and exchange at the offices of the Registrar.
DEPOSITORY PROCEDURES
The following description of the operations and procedures of DTC are
provided solely as a matter of convenience. These operations and procedures
are solely within the control of the respective settlement systems and are
subject to changes by them from time to time. The Company takes no
responsibility for these operations and procedures and urges investors to
contact the system or their participants directly to discuss these matters.
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for the Participants and to facilitate the
clearance and settlement of transactions in those securities between
Participants through electronic book-entry changes in accounts of its
Participants. The Participants include securities brokers and dealers
(including the Initial Purchaser, banks, trust companies, clearing
corporations and certain other organizations. Access to DTC's system is also
available to other entities such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own
securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interests in, and transfers of ownership
interests in, each security held by or on behalf of DTC are recorded on the
records of the Participants and Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established by
it, (i) upon deposit of the Global Senior Subordinated Exchange Notes, DTC
will credit the accounts of Participants designated by the Initial Purchaser
with portions of the principal amount of the Global Senior Subordinated
Exchange Notes and (ii) ownership of such interests in the Global Senior
Subordinated Exchange Notes will be shown on, and the transfer of ownership
thereof will be effected only through, records maintained by DTC (with respect
to the Participants) or by the Participants and the Indirect Participants
(with respect to other owners of beneficial interest in the Global Senior
Subordinated Exchange Notes).
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Investors in the Global Senior Subordinated Exchange Notes may hold their
interests therein directly through DTC, if they are Participants in such
system, or indirectly through organizations which are Participants in such
system. All interests in a Global Senior Subordinated Exchange Note may be
subject to the procedures and requirements of DTC. The laws of some states
require that certain persons take physical delivery in definitive form of
securities that they own. Consequently, the ability to transfer beneficial
interests in a Global Senior Subordinated Exchange Note to such persons will
be limited to that extent. Because DTC can act only on behalf of Participants,
which in turn act on behalf of Indirect Participants and certain banks, the
ability of a person having beneficial interests in a Global Senior
Subordinated Exchange Note to pledge such interests to persons or entities
that do not participate in the DTC system, or otherwise take actions in
respect of such interests, may be affected by the lack of a physical
certificate evidencing such interests.
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL SENIOR
SUBORDINATED EXCHANGE NOTE WILL NOT HAVE SENIOR SUBORDINATED EXCHANGE NOTES
REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF SENIOR
SUBORDINATED EXCHANGE NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED
THE REGISTERED OWNERS OR "HOLDERS" THEREOF UNDER THE SENIOR SUBORDINATED NOTE
INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal of, and premium, if any, Liquidated
Damages, if any, and interest on a Global Senior Subordinated Exchange Note
registered in the name of DTC or its nominee will be payable to DTC in its
capacity as the registered Holder under the Senior Subordinated Note
Indenture. Under the terms of the Senior Subordinated Note Indenture, the
Company and the Senior Subordinated Note Trustee will treat the persons in
whose names the Senior Subordinated Exchange Notes, including the Global
Senior Subordinated Exchange Notes, are registered as the owners thereof for
the purpose of receiving such payments and for any and all other purposes
whatsoever. Consequently, neither the Company, the Senior Subordinated Note
Trustee nor any agent of the Company or the Senior Subordinated Note Trustee
has or will have any responsibility or liability for (i) any aspect of DTC's
records or any Participant's or Indirect Participant's records relating to or
payments made on account of beneficial ownership interests in the Global
Senior Subordinated Exchange Notes, or for maintaining, supervising or
reviewing any of DTC's records or any Participant's or Indirect Participant's
records relating to the beneficial ownership interests in the Global Senior
Subordinated Exchange Notes or (ii) any other matter relating to the actions
and practices of DTC or any of its Participants or Indirect Participants. DTC
has advised the Company that its current practice, upon receipt of any payment
in respect of securities such as the Senior Subordinated Exchange Notes
(including principal and interest), is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in the principal amount of beneficial interests in
the relevant security as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of Senior
Subordinated Exchange Notes will be governed by standing instructions and
customary practices and will be the responsibility of the Participants or the
Indirect Participants and will not be the responsibility of DTC, the Senior
Subordinated Note Trustee or the Company. Neither the Company nor the Senior
Subordinated Note Trustee will be liable for any delay by DTC or any of its
Participants in identifying the beneficial owners of the Senior Subordinated
Exchange Notes, and the Company and the Senior Subordinated Note Trustee may
conclusively rely on and will be protected in relying on instructions from DTC
or its nominee for all purposes.
Interests in the Global Senior Subordinated Exchange Notes are expected to
be eligible to trade in DTC's Same-Day Funds Settlement System and secondary
market trading activity in such interests will, therefore, settle in
immediately available funds, subject in all cases to the rules and procedures
of DTC and its Participants. See "--Same Day Settlement and Payment."
Transfers between Participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a Holder of Senior Subordinated Exchange Notes only at the direction
of one or more Participants to whose account DTC has credited the interests in
the Global Senior Subordinated Exchange Notes and only in respect of such
portion of
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the aggregate principal amount of the Senior Subordinated Exchange Notes as to
which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Senior Subordinated
Exchange Notes, DTC reserves the right to exchange the Global Senior
Subordinated Exchange Notes for legended Senior Subordinated Exchange Notes in
certificated form, and to distribute such Senior Subordinated Exchange Notes
to its Participants.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interests in the Global Senior Subordinated Exchange Notes among
Participants in DTC, it is under no obligation to perform or to continue to
perform such procedures, and such procedures may be discontinued at any time.
Neither the Company nor the Senior Subordinated Note Trustee nor any of their
respective agents will have any responsibility for the performance by DTC, or
its participants or indirect participants of its obligations under the rules
and procedures governing its operations.
EXCHANGE OF BOOK-ENTRY SENIOR SUBORDINATED EXCHANGE NOTES FOR CERTIFICATED
SENIOR SUBORDINATED EXCHANGE NOTES
A Global Senior Subordinated Exchange Note is exchangeable for definitive
Senior Subordinated Exchange Notes in registered certificated form
("Certificated Senior Subordinated Notes") if (i) DTC (x) notifies the Company
that it is unwilling or unable to continue as depositary for the Global Senior
Subordinated Exchange Notes and the Company thereupon fails to appoint a
successor depositary or (y) has ceased to be a clearing agency registered
under the Exchange Act, (ii) the Company, at its option, notifies the Senior
Subordinated Note Trustee in writing that it elects to cause the issuance of
the Certificated Senior Subordinated Exchange Notes or (iii) there shall have
occurred and be continuing a Default or Event of Default with respect to the
Senior Subordinated Exchange Notes. In addition, beneficial interests in a
Global Senior Subordinated Exchange Note may be exchanged for Certificated
Senior Subordinated Exchange Notes upon request but only upon prior written
notice given to the Senior Subordinated Note Trustee by or on behalf of DTC in
accordance with the Senior Subordinated Note Indenture. In all cases,
Certificated Senior Subordinated Exchange Notes delivered in exchange for any
Global Senior Subordinated Exchange Note or beneficial interests therein will
be registered in the names, and issued in any approved denominations,
requested by or on behalf of the depositary (in accordance with its customary
procedures) and will bear the applicable restrictive legend referred to in
"Notice to Investors," unless the Company determines otherwise in compliance
with applicable law.
EXCHANGE OF CERTIFICATED SENIOR SUBORDINATED EXCHANGE NOTES FOR BOOK-ENTRY
SENIOR SUBORDINATED EXCHANGE NOTES
Senior Subordinated Exchange Notes issued in certificated form may be
exchanged for beneficial interests in any Global Senior Subordinated Exchange
Note upon request.
SAME DAY SETTLEMENT AND PAYMENT
The Senior Subordinated Note Indenture requires that payments in respect of
the Senior Subordinated Exchange Notes represented by the Global Senior
Subordinated Exchange Notes (including principal, premium, if any, interest
and Liquidated Damages, if any) be made by wire transfer of immediately
available funds to the accounts specified by the Global Senior Subordinated
Exchange Note Holder. With respect to Senior Subordinated Exchange Notes in
certificated form, the Company will make all payments of principal, premium,
if any, interest and Liquidated Damages, if any, by wire transfer of
immediately available funds to the accounts specified by the Holders thereof
or, if no such account is specified, by mailing a check to each such Holder's
registered address. The Senior Subordinated Exchange Notes represented by the
Global Senior Subordinated Exchange Notes are expected to trade in DTC's Same-
Day Funds Settlement System, and any permitted secondary market trading
activity in such Senior Subordinated Exchange Notes will, therefore, be
required by DTC to be settled in immediately available funds. The Company
expects that secondary trading in any certificated Senior Subordinated
Exchange Notes will also be settled in immediately available funds.
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CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Senior Subordinated
Note Indenture. Reference is made to the Senior Subordinated Note Indenture
for a full disclosure of all such terms, as well as any other capitalized
terms used herein for which no definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the acquisition by the Company of: (i) all of the common
stock of Peabody Holding Company, (ii) all of the common stock of Gold Fields
Mining Corp., (iii) all of the membership interests of Citizens Power, (iv)
the 1% interests in CL Hartford, L.L.C., a Delaware limited liability company,
and Citizens Power Sales, a Delaware general partnership, both subsidiaries of
Citizens Power, (v) all of the shares of Darex Capital Inc., a company
incorporated in the Republic of Panama, and (vi) all of the ordinary shares of
Peabody Australia Ltd., which together with Darex Capital, Inc. owns Peabody
Resources.
"Additional Assets" means (i) any property or assets (other than Capital
Stock, Indebtedness or rights to receive payments over a period greater than
180 days, other than with respect to coal supply contract restructurings) that
is usable by the Company or a Restricted Subsidiary in a Permitted Business or
(ii) the Capital Stock of a Person that is at the time, or becomes, a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory in the ordinary course of business
consistent with past practices (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole will be governed by the
provisions of the Senior Subordinated Note Indenture described above under the
caption "--Change of Control" and/or the provisions described above under the
caption "--Merger, Consolidation or Sale of Assets" and not by the provisions
of the Asset Sale covenant), and (ii) the issue or sale by the Company or any
of its Restricted Subsidiaries of Equity Interests of any of the Company's
Restricted Subsidiaries, in the case of either clause (i) or (ii), whether in
a single transaction or a series of related transactions (a) that have a fair
market value in excess of $5.0 million or (b) for Net Proceeds in excess of
$5.0 million. Notwithstanding the foregoing, the following items shall not be
deemed to be Asset Sales: (i) a transfer of assets by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary, (ii) an issuance of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary,
(iii) a Restricted Payment that is permitted by, or an Investment that is not
prohibited by, the covenant described above under the caption "--Restricted
Payments," (iv) a disposition of Cash Equivalents or obsolete equipment, (v)
foreclosures on assets, (vi) the sale or discount, in each case without
recourse, of accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof and (vii) the
factoring of accounts receivable arising in the ordinary course of business
pursuant to arrangements customary in the industry.
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"Bengalla Joint Venture" means Bengalla Mining Co. Pty Limited, Bengalla
Agricultural Co. Pty Limited and Bengalla Coal Sales Co. Pty Ltd. which are
the joint venture companies related to the Bengalla mine in New South Wales,
Australia.
"Black Beauty Coal Company" means the Indiana general partnership among
Thoroughbred, L.L.C., Black Beauty Resources, Inc. and Pittsburg and Midway
Coal Mining Co., and any Person collectively owned by those three partners
including, but not limited to, Eagle Coal Company and Falcon Coal Company.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"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.
"Cash Equivalents" means (a) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed or insured by the U.S.
Government or any agency thereof, (b) certificates of deposit and time
deposits with maturities of one year or less from the date of acquisition and
overnight bank deposits of any lender under the Senior Credit Facilities or of
any commercial bank having capital and surplus in excess of $500.0 million,
(c) repurchase obligations of any lender under the Senior Credit Facilities or
of any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to securities
issued or fully guaranteed or insured by the United States Government, (d)
commercial paper of a domestic issuer rated at least A-2 by S&P or P-2 by
Moody's, or carrying an equivalent rating by a nationally recognized rating
agency if both of S&P and Moody's cease publishing ratings of investments, (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by
S&P or A by Moody's, (f) securities with maturities of one year or less from
the date of acquisition backed by standby letters of credit issued by any
lender under the Senior Credit Facilities or any commercial bank satisfying
the requirements of clause (b) of this definition or (g) shares of money
market mutual or similar funds which invest exclusively in assets satisfying
the requirements of clauses (a) through (f) of this definition.
"Citizens Power" means Citizens Power LLC, a Delaware limited liability
company and its direct and indirect Subsidiaries.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (ii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs, deferred financing
fees and original issue discount, noncash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing
such Consolidated Net Income, plus (iii) an amount equal to any extraordinary
loss plus any net loss realized in connection with an Asset Sale (to the
extent such losses were deducted in computing such Consolidated Net Income),
plus (iv) depreciation, depletion, amortization (including amortization of
goodwill and other intangibles) and other noncash expenses (including, without
limitation, writedowns and impairment of property, plant and equipment and
intangibles and
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other long-lived assets) (excluding any such noncash expense to the extent
that it represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, depletion, amortization and other noncash
expenses were deducted in computing such Consolidated Net Income, minus (v)
noncash items increasing such Consolidated Net Income for such period (other
than accruals in accordance with GAAP), plus (vi) without duplication for
amounts otherwise included in Consolidated Cash Flow, the amount of the
Company's and its Restricted Subsidiaries' proportionate share of the
Consolidated Cash Flow of Black Beauty Coal Company and its Subsidiaries for
such period (calculated in proportion to the Company's and its Restricted
Subsidiaries common equity ownership), in each case, on a consolidated basis
and determined in accordance with GAAP. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation,
depletion and amortization and other noncash expenses of, a Restricted
Subsidiary that is not a Senior Subordinated Note Guarantor shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
that a corresponding amount would be permitted at the date of determination to
be dividended to the Company by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided
that (i) the Net Income of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the
referent Person or a Restricted Subsidiary thereof, (ii) the Net Income of any
Restricted Subsidiary that is not a Senior Subordinated Note Guarantor shall
be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is not
at the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, (iii) the Net Income of any Person acquired in
a pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded, and (v) the Net Income (or loss) of
any Unrestricted Subsidiary shall be excluded, whether or not distributed to
the Company or one of its Restricted Subsidiaries.
"Credit Facilities" means, with respect to the Company or any of its
Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the Senior Credit Facilities) 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, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time. Indebtedness under Credit Facilities
outstanding on the date on which Senior Subordinated Exchange Notes are first
issued and authenticated under the Senior Subordinated Note Indenture shall be
deemed to have been incurred on such date in reliance on the exception
provided by clause (i) of the definition of Permitted Indebtedness.
"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.
"Designated Noncash Consideration" means the fair market value of noncash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.
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"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Senior Subordinated Exchange Notes mature; provided, however, that
any Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such
Capital Stock upon the occurrence of a Change of Control or an Asset Sale
shall not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption complies with
the covenant described above under the caption "--Certain Covenants--
Restricted Payments."
"Domestic Subsidiary" means a Subsidiary that is (i) formed under the laws
of the United States of America or a state or territory 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 United States federal income tax purposes.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of equity securities
(excluding Disqualified Stock) of the Company, other than any private sales to
an Affiliate of the Company.
"Escrow Account" means the escrow account maintained pursuant to the Escrow
Letter.
"Escrow Letter" means that certain escrow letter dated March 2, 1998, by and
among Lazard Brothers & Co., Limited, The Energy Group PLC, Peabody
Investments Inc. and P&L Coal Holdings Corporation.
"Existing Citizens Power Investment" means the Investments in Citizens Power
by the Company and its Restricted Subsidiaries as of the date of the closing
of the Acquisition.
"Existing Indebtedness" means up to $292.5 million in aggregate principal
amount of Indebtedness of the Company and its Restricted Subsidiaries (other
than Indebtedness under the Senior Credit Facilities, the Senior Exchange
Notes, the Senior Subordinated Exchange Notes and related Guarantees) in
existence on the date of the closing of the Acquisition, until such amounts
are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
noncash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred
in respect of letters of credit or bankers' acceptance financings, and net
payments (if any) pursuant to Hedging Obligations, but excluding amortization
of debt issuance costs) and (ii) the consolidated interest of such Person and
its Restricted Subsidiaries that was capitalized during such period, and (iii)
any interest expense on the portion of Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by
a Lien on assets of such Person or one of its Restricted Subsidiaries (whether
or not such Guarantee or Lien is called upon) and (iv) the product of (a) all
dividend payments, whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than dividend
payments on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary
of the Company, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the effective combined federal, state and
local tax rate of such Person for such period, expressed as a decimal, in each
case, for the Company and its Restricted Subsidiaries on a consolidated basis
and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person and its
Restricted Subsidiaries for any period, the ratio of the Consolidated Cash
Flow of such Person and its Restricted Subsidiaries for such period to
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the Fixed Charges of such Person and its Restricted Subsidiaries for such
period. In the event that the referrent Person or any of its Restricted
Subsidiaries incurs, assumes, Guarantees or redeems any Indebtedness (other
than revolving credit borrowings) or issues or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which the event
for which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, for purposes of making the computation referred
to above, (i) acquisitions that have been made by the Company or any of its
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions and including pro forma cost
savings permitted by Article 11 of Regulation S-X, during the four-quarter
reference period or subsequent to such reference period and on or prior to the
Calculation Date shall be given pro forma effect as if they had occurred on
the first day of the four-quarter reference period and Consolidated Cash Flow
for such reference period shall be calculated without giving effect to clause
(iii) of the proviso set forth in the definition of Consolidated Net Income,
and (ii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed
of prior to the Calculation Date, shall be excluded, and (iii) the Fixed
Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date, shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the referent Person or
any of its Restricted Subsidiaries following the Calculation Date.
"Foreign Subsidiaries" means Subsidiaries of the Company that are not
Domestic Subsidiaries.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Senior Subordinated Note
Indenture.
"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.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange, interest rate or commodity swap
agreements, currency exchange, interest rate or commodity cap agreements and
currency exchange, interest rate or commodity collar agreements and (ii) other
agreements or arrangements designed to protect such Person against
fluctuations in currency exchange, interest rates or commodity prices, in each
case for the purpose of risk management and not for speculation.
"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 or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations, if
and to the extent any of the foregoing (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all Indebtedness of others
secured by a Lien on any asset of such Person (whether or not such
Indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other
Person, but excluding from the definition of "Indebtedness," any of the
foregoing that constitutes (1) an accrued expense, (2) trade payables and (3)
Obligations in respect of reclamation, workers' compensation, including black
lung, pensions and retiree health care, in each case to the extent not overdue
for more than 90 days. The amount of any Indebtedness outstanding as of any
date shall be (i) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount, and (ii) the
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principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees, other than performance guarantees
provided for the benefit of Citizens Power of any portion of Indebtedness or
other obligations), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a Restricted
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in the final paragraph of the
covenant described above under the caption "--Restricted Payments."
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Marketable Securities" means, with respect to any Asset Sale, any readily
marketable equity securities that are (i) traded on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market; and (ii)
issued by a corporation having a total equity market capitalization of not
less than $250.0 million; provided that the excess of (A) the aggregate amount
of securities of any one such corporation held by the Company and any
Restricted Subsidiary over (B) ten times the average daily trading volume of
such securities during the 20 immediately preceding trading days shall be
deemed not to be Marketable Securities; as determined on the date of the
contract relating to such Asset Sale.
"Net Income" means, with respect to any Person, the net income or loss of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain or
loss, together with any related provision for taxes on such gain or loss,
realized in connection with (a) any Asset Sale (including, without limitation,
dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain
or loss, together with any related provision for taxes on such extraordinary
or nonrecurring gain or loss.
"Net Proceeds" means the aggregate proceeds (cash or property) received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any noncash consideration received in any Asset Sale) or the
sale or disposition of any Investment, net of the direct costs relating to
such Asset Sale, sale or disposition, (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.
"Non-Guarantor Subsidiaries" means (i) Citizens Power and its direct and
indirect Subsidiaries, (ii) the Company's future Unrestricted Subsidiaries and
(iii) the Company's current and future Foreign Subsidiaries.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that
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would constitute Indebtedness) other than a pledge of the Equity Interests of
any Unrestricted Subsidiaries, (b) is directly or indirectly liable (as a
guarantor or otherwise) other than by virtue of a pledge of the Equity
Interests of any Unrestricted Subsidiaries, or (c) constitutes the lender; and
(ii) no default with respect to which (including any rights that the holders
thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder of
any other Indebtedness (other than the Senior Subordinated Exchange Notes
being offered hereby) of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to
be accelerated or payable prior to its stated maturity.
"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.
"Permitted Business" means coal production, coal mining, coal brokering,
coal transportation, mine development, power marketing, electricity
generation, power/energy sales and trading, energy transactions/asset
restructurings, risk management products associated with energy, fuel/power
integration and other energy related businesses, ash disposal, environmental
remediation, coal, natural gas, petroleum or other fossil fuel exploration,
production, marketing, transportation and distribution and other related
businesses, and activities of the Company and its Subsidiaries as of the date
of the closing of the Acquisition and any business or activity that is
reasonably similar thereto or a reasonable extension, development or expansion
thereof or ancillary thereto.
"Permitted Investments" means (a) any Investment in the Company or in a
Restricted Subsidiary of the Company; (b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary of the Company
in a Person, if as a result of such Investment (i) such Person becomes a
Restricted Subsidiary of the Company or (ii) such Person, in one transaction
or a series of related transactions, is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Company or a Restricted Subsidiary of the Company; (d)
any acquisition of assets solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company; (e) any Investment
existing on the date of the closing of the Acquisition (an "Existing
Investment") and any Investment that replaces, refinances or refunds an
Existing Investment, provided that the new Investment is in an amount that
does not exceed the amount replaced, refinanced or refunded and is made in the
same Person as the Investment replaced, refinanced or refunded, (f) advances
to employees not in excess of $10.0 million outstanding at any one time; (g)
Hedging Obligations permitted under clause (ix) of the "--Incurrence of
Indebtedness and Issuance of Preferred Stock" covenant; (h) loans and advances
to officers, directors and employees for business-related travel expenses,
moving expenses and other similar expenses, in each case incurred in the
ordinary course of business; (i) any Investment in a Permitted Business
(whether or not an Investment in an Unrestricted Subsidiary) having an
aggregate fair market value, when taken together with all other Investments
made pursuant to this clause (i), does not exceed in aggregate amount the sum
of (1) 10% of Total Assets at the time of such Investment (with the fair
market value of each Investment being measured at the time made and without
giving effect to subsequent changes in value) plus (2) 100% of the Net
Proceeds from the sale or disposition of any Investment previously made
pursuant to this clause (i) or 100% of the amount of any dividend,
distribution or payment from any such Investment, net of income taxes paid or
payable in respect thereof, in each case up to the amount of the Investment
that was made pursuant to this clause (i) and 50% of the amount of such Net
Proceeds or 50% of such dividends, distributions or payments, in each case
received in excess of the amount of the Investments made pursuant to this
clause (i); (j) guarantees (including Guarantees) of Indebtedness permitted
under the covenant "--Incurrence of Indebtedness and Issuance of Preferred
Stock;" (k) any Investment acquired by the Company or any of its Restricted
Subsidiaries (A) in exchange for any other Investment or accounts receivable
held by the Company or any such Restricted Subsidiary in connection with or as
a result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable or (B) as a result of
the transfer of title with respect to any secured Investment in default as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to such secured Investment; (l) any Investment in Black Beauty
Coal Company having an aggregate fair market value, taken together with all
other Investments
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made pursuant to this clause (l), that are at the time outstanding not to
exceed $50.0 million (with any write-down or write-off of any such Investment
deemed to remain outstanding); (m) Investments in Citizens Power having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (m), that are at that time outstanding not to exceed
$50.0 million at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving effect to
subsequent changes in value); (n) any Investment in the Bengalla Joint Venture
and the Warkworth Associates Joint Venture having an aggregate fair market
value, taken together with all other Investments made pursuant to this clause
(n), that are at the time outstanding, not to exceed $25.0 million (with any
write-down or write-off of any such Investment deemed to remain outstanding);
(o) that portion of any Investment by the Company or a Restricted Subsidiary
in a Permitted Business to the extent that the Company or such Restricted
Subsidiary will receive in a substantially concurrent transaction an amount in
cash equal to the amount of such Investment (or the fair market value of such
Investment), net of any obligation to pay taxes or other amounts in respect of
the receipt of such cash; provided that the receipt of such cash does not
carry any obligation by the Company or such Restricted Subsidiary to repay or
return such cash; and (p) the forgiveness or cancellation of any payable due
from Citizens Power and its direct and indirect Subsidiaries outstanding on
the date of the closing of the Acquisition; provided, however, that with
respect to any Investment, the Company may, in its sole discretion, allocate
all or any portion of any Investment to one or more of the above clauses so
that the entire Investment would be a Permitted Investment.
"Permitted Liens" means (i) Liens securing Indebtedness under Credit
Facilities that were permitted by the terms of the Senior Subordinated Note
Indenture to be incurred; (ii) Liens in favor of the Company; (iii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of
the Person merged into or consolidated with the Company; (iv) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition; (v) 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; (vi) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance or
other kinds of social security; (vii) Liens existing on the date of the
closing of the Acquisition; (viii) 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;
(ix) Liens on assets of Senior Subordinated Note Guarantors to secure Senior
Debt of such Senior Subordinated Note Guarantors that was permitted by the
Senior Subordinated Note Indenture to be incurred; (x) Liens incurred in the
ordinary course of business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary; (xi) Liens on assets of Foreign Subsidiaries to secure
Indebtedness that was permitted by the Senior Subordinated Note Indenture to
be incurred; (xii) statutory liens of landlords, mechanics, suppliers,
vendors, warehousemen, carriers or other like Liens arising in the ordinary
course of business; (xiii) judgment Liens not giving rise to an Event of
Default 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; (xiv) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title defects incurred or
imposed, as applicable, in the ordinary course of business and consistent with
industry practices which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the property
subject thereto (as such property is used by the Company or its Subsidiaries)
or interfere with the ordinary conduct of the business of the Company or such
Subsidiaries; provided, however, that any such Liens are not incurred in
connection with any borrowing of money or any commitment to loan any money or
to extend any credit; (xv) Liens to secure Indebtedness (including Capital
Lease Obligations) permitted by clause
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(vi) of the second paragraph of the covenant entitled "Incurrence of
Indebtedness and Issuance of Preferred Stock" and other purchase money Liens
to finance property or assets of the Company or any Restricted Subsidiary
acquired in the ordinary course of business; provided that such Liens are only
secured by such property or assets so acquired or improved (including, in the
case of the acquisition of Capital Stock of a Person who becomes a Restricted
Subsidiary, Liens on the assets of the Person whose Capital Stock was so
acquired); (xvi) Liens securing Indebtedness under Hedging Obligations;
provided that such Liens are only secured by property or assets that secure
the Indebtedness subject to the Hedging Obligation; (xvii) Liens to secure
Indebtedness permitted by clause (xv) of the second paragraph of the covenant
entitled "Incurrence of Indebtedness and Issuance of Preferred Stock;" and
(xviii) Liens on the Equity Interests of Unrestricted Subsidiaries securing
obligations of Unrestricted Subsidiaries not otherwise prohibited by the
Senior Subordinated Notes Indenture.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or accreted value, if
applicable), plus accrued interest and premium, if any, on, the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (plus the
amount of reasonable expenses incurred in connection therewith); (ii) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to
or greater than the Weighted Average Life to Maturity of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; (iii) if
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Senior Subordinated
Exchange Notes, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in right of
payment to, the Senior Subordinated Exchange Notes on terms at least as
favorable to the Holders of Senior Subordinated Exchange Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Senior Credit Facilities" means those certain Senior Credit Facilities,
dated as of May 18, 1998, by and among the Company, the Senior Note
Guarantors, Lehman Commercial Paper Inc., as Arranger, Syndication Agent and
the Administrative Agent 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, exhibits or schedules to any of the foregoing), and in each case
as amended, modified, supplemented, restated, renewed, refunded, replaced,
restructured, repaid or refinanced from time to time (whether with the
original agents and lenders or other agents and lenders or otherwise, and
whether provided under the original credit agreement or other credit
agreements or otherwise).
"Senior Note Indenture" means the indenture dated May 18, 1998, governing
the Senior Notes.
"Senior Exchange Notes" mean the 8 7/8% Series B Senior Notes of the Company
due 2008.
"Senior Subsidiary Guarantees" mean the guarantees endorsed on the Senior
Subordinated Exchange Notes by the Senior Subordinated Note Guarantors.
"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
hereof.
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"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
"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 Senior Subordinated Note 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).
"Total Assets" means the total assets of the Company and its Restricted
Subsidiaries on a consolidated basis determined in accordance with GAAP, as
shown on the most recently available consolidated balance sheet of the Company
and its Restricted Subsidiaries.
"Transaction Documents" means the documents related to (i) the Acquisition
(including, without limitation, the purchase agreement, the participation
agreement and the escrow agreement), (ii) the Senior Credit Facilities and
(iii) the offering of the Old Senior Notes and the Old Senior Subordinated
Notes.
"Treasury Rate" means the yield to maturity at the time of the computation
of the United States Treasury securities with a constant maturity (as compiled
by and published in the most recent Federal Reserve Statistical Release
H.15(519), which has become publicly available at least two Business Days
prior to the date fixed for redemption (or if such Statistical Release is no
longer published, any publicly available source of similar market data)) most
nearly equal to the then remaining average life to May 15, 2003; provided,
however, that if the average life of such Senior Subordinated Exchange Note is
not equal to the constant maturity of the United States Treasury security for
which weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from
the weekly average yields of United States Treasury securities for which such
yields are given, except that if the average life of such Senior Subordinated
Exchange Note is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of
one year shall be used.
"Unrestricted Subsidiary" means (i) Citizens Power, any direct or indirect
Subsidiary of Citizens Power on the date of the Senior Subordinated Note
Indenture and (ii) any Subsidiary that is designated by the Board of Directors
as an Unrestricted Subsidiary pursuant to a Board Resolution; but only to the
extent that such Person: (a) has no Indebtedness other than Non-Recourse Debt;
(b) is not party to any agreement, contract, arrangement or understanding with
the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary than those that might
be obtained at the time from Persons who are not Affiliates of the Company;
(c) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any obligation (x) to subscribe for additional
Equity Interests in Unrestricted Subsidiaries (except with respect to
Permitted Investments) or (y) to maintain or preserve such Person's net worth;
and (d) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; provided, however, that the Company and its Restricted
Subsidiaries may guarantee the performance of Unrestricted Subsidiaries in the
ordinary course of business except for guarantees of Obligations in respect of
borrowed money. Any such designation by the Board of Directors shall be
evidenced to the Senior Subordinated Note Trustee by filing with the Senior
Subordinated Note Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions and was permitted by the
covenant described above under the caption "Certain Covenants--Restricted
Payments."
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"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.
"Warkworth Associates Joint Venture" means Warkworth Coal Sales Ltd.,
Warkworth Pastoral Co. Pty, Limited and Warkworth Mining Limited, which are
the joint venture companies related to the Warkworth mine in New South Wales,
Australia.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall
at the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
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CERTAIN UNITED STATES FEDERAL TAX CONSIDERATIONS
The discussion below is based upon the provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations, rulings and
judicial decisions thereunder as of the date hereof, and such authorities may
be repealed, revoked or modified so as to result in federal income tax
consequences different from those discussed below.
The exchange of Old Notes for Exchange Notes will not constitute a taxable
transaction to Holders for federal income tax purposes. Consequently, no gain
or loss will be recognized by Holders upon receipt of the Exchange Notes, the
holding period of the Exchange Notes will include the holding period of the
Old Notes and the basis of the Exchange Notes will be the same as the basis of
the Old Notes immediately before the exchange.
IN ANY EVENT, PERSONS CONSIDERING THE EXCHANGE OF OLD NOTES FOR EXCHANGE
NOTES SHOULD CONSULT THEIR OWN TAX ADVISERS CONCERNING THE UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES IN LIGHT OF THEIR PARTICULAR SITUATIONS AS
WELL AS ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY OTHER TAXING
JURISDICTION.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account pursuant
to the Exchange Offers must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Notes received in exchange for Old
Notes where such Old Notes were acquired as a result of market-making
activities or other trading activities. To the extent any such broker-dealer
participates in the Exchange Offers and so notifies the Company, or causes the
Company to be so notified in writing, the Company has agreed that a period of
180 days after the date of this Prospectus, it will make this Prospectus, as
amended or supplemented, available to such broker-dealer for use in connection
with any such resale, and will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any broker-
dealer that requests such documents in the Letters of Transmittal.
The Company will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offers may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at prevailing market prices at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Exchange Offers and any broker or dealer
that participates in a distribution of such Exchange Notes may be deemed to be
an "underwriter" within the meaning of the Securities Act, and any profit on
any such resale of Exchange Notes and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letters of Transmittal state that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
The Company has agreed to pay all expenses incident to the Exchange Offers
(other than commissions and concessions of any broker-dealers), subject to
certain prescribed limitations, and will indemnify the holders of the Old
Notes against certain liabilities, including certain liabilities that may
arise under the Securities Act.
By its acceptance of the Exchange Offers, any broker-dealer that receives
Exchange Notes pursuant to the Exchange Offers hereby agrees to notify the
Company prior to using the Prospectus in connection with the sale or transfer
of Exchange Notes, and acknowledges and agrees that, upon receipt of notice
from the Company of the happening of any event which makes any statement in
the Prospectus untrue in any material respect or which requires the making of
any changes in the Prospectus in order to make the statements therein not
misleading or which may impose upon the Company disclosure obligations that
may have a material adverse effect on the Company (which notice the Company
agrees to deliver promptly to such broker-dealer), such broker-dealer will
suspend use of the Prospectus until the Company has notified such broker-
dealer that delivery of the Prospectus may resume and has furnished copies of
any amendment or supplement to the Prospectus to such broker-dealer.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Simpson Thacher
& Bartlett, New York, New York.
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EXPERTS
The reserve reports and estimates of the Company's proven and probable coal
reserves included herein have, to the extent described herein, been prepared
by the Company and reviewed by Boyd.
The Combined Financial Statements and Schedule of P&L Coal Group and the
Financial Statement of P&L Coal Holdings Corporation audited by Ernst & Young
LLP have been included in reliance on their reports given or their authority
as experts in accounting and auditing.
AVAILABLE INFORMATION
The Company and the Guarantors have filed with the Commission a Registration
Statement on Form S-4 (together with all amendments, exhibits, schedules and
supplements thereto, the "Registration Statement") under the Securities Act
with respect to the Exchange Notes being offered hereby. This Prospectus,
which forms a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement. For further information
with respect to the Company and the Exchange Notes, reference is made to the
Registration Statement. Statements contained in this Prospectus as to the
contents of any contract or other document are not necessarily complete, and,
where such contract or other document is an exhibit to the Registration
Statement, each such statement is qualified by the provisions in such exhibit,
to which reference is hereby made. The Company and the Guarantors are not
currently subject to the informational requirements of the Exchange Act. As a
result of the offering of the Exchange Notes, the Company and the Guarantors
will become subject to the informational requirements of the Exchange Act,
and, in accordance therewith, will file reports and other information with the
Commission. The Registration Statement, such reports and other information can
be inspected and copied at the Public Reference Section of the Commission
located at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C.
20549 and at regional public reference facilities maintained by the Commission
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and Seven World Trade Center, Suite 1300, New York, New York
10048. Copies of such material, including copies of all or any portion of the
Registration Statement, can be obtained from the Public Reference Section of
the Commission at prescribed rates. Such material may also be accessed
electronically by means of the Commission's home page on the Internet
(http://www.sec.gov).
So long as the Company and the Guarantors are subject to the periodic
reporting requirements of the Exchange Act, they are required to furnish the
information required to be filed with the Commission to the Trustee and the
holders of the Old Notes and the Exchange Notes. The Company and the
Guarantors have agreed that, even if they are not required under the Exchange
Act to furnish such information to the Commission, they will nonetheless
continue to furnish information that would be required to be furnished by the
Company and the Guarantors by Section 13 of the Exchange Act, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants to the Trustee and the
holders of the Old Notes or Exchange Notes as if they were subject to such
periodic reporting requirements.
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GLOSSARY OF SELECTED TERMS
Anthracite. The highest rank of economically usable coal with moisture
content less than 15% by weight and heating value as high as 15,000 Btus per
pound. It is jet black with a high luster. It is mined primarily in
Pennsylvania.
Appalachian Region. Coal producing states of Alabama, Georgia, eastern
Kentucky, Maryland, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia
and West Virginia.
Ash. Impurities consisting of iron, alumina and other incombustible matter
that are contained in coal. Since ash increases the weight of coal, it adds to
the cost of handling and can affect the burning characteristics of coal.
Bituminous Coal. The most common type of coal with moisture content less
than 20% by weight and heating value of 10,500 to 14,000 Btus per pound. It is
dense and black and often has well-defined bands of bright and dull material.
British Thermal Unit ("Btu"). A measure of the energy required to raise the
temperature of one pound of water one degree Fahrenheit.
Clean Air Act Amendments of 1990. A comprehensive set of amendments to the
federal law governing the nation's air quality. The Clean Air Act was
originally passed in 1970 to address significant air pollution problems in our
cities. The 1990 amendments broadened and strengthened the original law to
address specific problems such as acid deposition, urban smog, hazardous air
pollutants and stratospheric ozone depletion.
Coal Seam. Coal deposits occur in layers. Each such layer is called a
"seam."
Coke. A hard, dry carbon substance produced by heating coal to a very high
temperature in the absence of air. Coke is used in the manufacture of iron and
steel. Its production results in a number of useful byproducts.
Coking Coal. Coal used to make coke and interchangeably referred to as
metallurgical coal.
Continuous Mining. A form of underground room-and-pillar mining which uses a
continuous mining machine to cut coal from the seam and load it onto conveyors
or into shuttle cars in a continuous operation.
Deep Mine. An underground coal mine.
Draglines. A large excavating machine used in the surface mining process to
remove overburden.
Dragline Mining. A form of mining where large capacity electric-powered
draglines remove overburden to expose the coal seam. Smaller shovels load coal
in haul trucks for transportation to the preparation plant and then to the
rail loadout.
Federal Energy Regulatory Commission ("FERC"). A regulatory agency within
the Department of Energy that has jurisdiction over interstate electricity
sales, wholesale electric rates, hydro-electric licensing, natural gas
pricing, oil pipeline rates and gas pipeline certification.
Fossil Fuel. Fuel such as coal, petroleum or natural gas formed from the
fossil remains of organic material.
Greenfield. Undeveloped coal reserves.
Hard Rock Mine. A mine for hard rock minerals, which include copper, lead,
zinc, magnesium, nickel and gold. Coal mines are not considered hard rock
mines.
Illinois Basin. Coal producing area in Illinois, western Indiana and western
Kentucky.
Interior Region. Coal producing states of Arkansas, Illinois, Indiana, Iowa,
Kansas, Michigan, western Kentucky, Louisiana, Missouri, Oklahoma and Texas.
Lignite. The lowest rank of coal with a high moisture content of up to 45%
by weight and heating value of 6,500 to 8,300 Btus per pound. It is brownish
black and tends to oxidize and disintegrate when exposed to air.
202
<PAGE>
Longwall Mining. A form of underground mining in which a panel or block of
coal, generally 700 feet wide and often over one mile long, is completely
extracted. The working area is protected by a moveable, powered roof support
system.
Metallurgical Coal. The various grades of coal suitable for carbonization to
make coke for steel manufacture. Also known as "met" coal, it possesses four
important qualities: volatility, which affects coke yield; the level of
impurities, which affects coke quality; composition, which affects coke
strength; and basic characteristics, which affect coke oven safety. Met coal
has a particularly high Btu, but low ash content.
Nitrogen Oxide (NO/2/). A gas formed in high temperature environments such
as coal combustion. It is a harmful pollutant that contributes to acid rain.
NUG. Non-utility generator that sells power to a regulated utility under a
long term contract.
Organization for Economic Cooperation and Development (OECD). Members of the
OECD include Australia, Austria, Belgium, Canada, Denmark, Finland, France,
Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, the Netherlands,
New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, the United
Kingdom and the United States and its territories (Guam, Puerto Rico and the
U.S. Virgin Islands).
Overburden. Layers of earth and rock covering a coal seam. In surface mining
operations, overburden is removed prior to coal extraction.
Overburden Ratio/Stripping Ratio. The amount of overburden that must be
removed to excavate a given quantity of coal. It is commonly expressed in
cubic yards per ton of coal or as a ratio comparing the thickness of the
overburden with the thickness of the coal bed.
Pillar. An area of coal left to support the overlying strata in a mine;
sometimes left permanently to support surface structures.
Powder River Basin. Coal producing area in northeastern Wyoming and
southeastern Montana. This is the largest known source of coal reserves and
the largest producing region in the United States.
Preparation Plant. Usually located on a mine site, although one plant may
serve several mines. A preparation plant is a facility for crushing, sizing
and washing coal to prepare it for use by a particular customer. The washing
process has the added benefit of removing some of the coal's sulfur content.
Probable Reserves. In relation to coal, means reserves for which there is a
moderate degree of geological assurance. Coal tonnages are computed by
projection data from available seam measurements for a distance beyond coal
classed as measured or proven. The assurance, although lower than for proven
coal, is high enough to assume continuity between points of measurement. The
maximum acceptable distance for projection of indicated probable tonnage is
one-half to three-quarters mile from points of observation. Further
exploration is necessary to place these reserves in a proven category.
Proven Reserves. In relation to coal, means reserves for which there is the
highest degree of geological assurance. The sites for measurement are so
closely spaced and the geological character so well defined that the
thickness, real extent, size, shape and depth of coal are well established.
The maximum acceptable distance for projections from seam data points varies
with the geological nature of the coal seam being studied, but generally, a
radius of one-quarter mile is recognized as the standard. Proven reserves may
also be referred to as measured.
Reclamation. The process of restoring land and the environment to their
original state following mining activities. The process commonly includes
"recontouring" or reshaping the land to its approximate original appearance,
restoring topsoil and planting native grass and ground covers. Reclamation
operations are usually underway before the mining of a particular site is
completed. Reclamation is closely regulated by both state and federal law.
203
<PAGE>
Recoverable Reserves. The amount of coal that can be recovered from the
reserve base. The average recovery factor for underground mines and surface
mines is about 57% and 80%, respectively. Using these percentages, there are
about 300 billion tons of recoverable reserves in the United States, enough to
last more than 300 years at current consumption levels.
Roof. The stratum of rock or other mineral above a coal seam; the overhead
surface of a coal working place. Same as "back" or "top."
Roof Bolt. A long steel bolt driven into the roof of underground excavations
to support the roof, preventing and limiting the extent of roof falls. The
unit consists of the bolt (up to four feet long), steel plate, expansion
shell, and pal nut. The use of roof bolts eliminates the need for timbering by
fastening together, or "laminating," several weaker layers of roof strata to
build a "beam."
Roof Support. Posts, jacks, roof bolts and beams used to support the rock
overlying a coal seam in an underground mine. A good roof support plan is part
of mine safety and coal extraction.
Room and Pillar Mining. The most common method of underground mining in
which the mine roof is supported mainly by coal pillars left at regular
intervals. Rooms are placed where the coal is mined; pillars are areas of coal
left between the rooms. Room-and-pillar mining is done either by conventional
or continuous mining.
Scrubber (flue gas desulfurization unit). Any of several forms of
chemical/physical devices which operate to neutralize sulfur compounds formed
during coal combustion. These devices combine the sulfur in gaseous emissions
with other chemicals to form inert compounds, such as gypsum, which must then
be removed for disposal. Although effective in substantially reducing sulfur
from combustion gases, scrubbers require about six to seven percent of a power
plant's electrical output and thousands of gallons of water to operate.
Steam Coal. Coal used by power plants and industrial steam boilers to
produce electricity or process steam. It generally is lower in Btu heat
content and higher in volatile matter than metallurgical coal.
Subbituminous Coal. Dull, black coal that ranks between lignite and
bituminous coal. Its moisture content is between 20% and 30% by weight, and
its heat content ranges from 7,800 to 9,500 Btus per pound of coal.
Sulfur. One of the elements present in varying quantities in coal that
contributes to environmental degradation when coal is burned. Sulfur dioxide
(SO/2/) is produced as a gaseous by-product of coal combustion.
Sulfur Content. Coal is commonly described by its sulfur content due to the
importance of sulfur in environmental regulations. "Low sulfur" coal has a
variety of definitions but typically is used to describe coal consisting of
1.0% or less sulfur. A majority of the Company's Appalachian and Powder River
Basin reserves are of low sulfur grades.
Surface Mine. A mine in which the coal lies near the surface and can be
extracted by removing the covering layer of soil (see "Overburden"). About 60%
of total U.S. coal production comes from surface mines.
Tons. A "short" or net ton is equal to 2,000 pounds. A "long" or British ton
is 2,240 pounds; a "metric" ton is approximately 2,205 pounds. The short ton
is the unit of measure referred to in this document.
Truck and Shovel Mining. A form of mining where large shovels are used to
remove overburden, which is used to backfill pits after the coal is removed.
Smaller shovels load coal in haul trucks for transportation to the preparation
plant or rail loadout.
Underground Mine. Also known as a "deep" mine. Usually located several
hundred feet below the earth's surface, an underground mine's coal is removed
mechanically and transferred by shuttle car or conveyor to the surface. Most
underground mines are located east of the Mississippi River and account for
about 40% of annual U.S. coal production.
Unit Train. A train of 100 or more cars carrying only coal. A typical unit
train can carry at least 10,000 tons of coal in a single shipment.
Western Bituminous Coal Regions. Coal producing area including, the Hanna
Basin in Wyoming, the Uinta Basin of northwestern Colorado and Utah, the Four
Corners Region in New Mexico and Arizona and the Raton Basin in southern
Colorado.
204
<PAGE>
INDEX TO FINANCIAL STATEMENTS
P & L COAL HOLDINGS CORPORATION
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Auditors ............................................ F-2
Balance Sheet.............................................................. F-3
Note to Balance Sheet ..................................................... F-4
</TABLE>
P&L COAL GROUP
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Auditors ............................................ F-5
Combined Financial Statements:
Statements of Combined Operations........................................ F-6
Combined Balance Sheets.................................................. F-7
Statements of Combined Changes in Invested Capital....................... F-8
Statements of Combined Cash Flows........................................ F-9
Notes to Combined Financial Statements................................... F-10
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
P&L Coal Holdings Corporation
We have audited the accompanying balance sheet of P&L Coal Holdings
Corporation as of March 31, 1998. This balance sheet is the responsibility of
the Company's management. Our responsibility is to express an opinion on this
balance sheet based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the balance sheet is free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the balance sheet. An audit also
includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall balance sheet
presentation. We believe our audit provides a reasonable basis for our
opinion.
In our opinion, the balance sheet referred to above presents fairly, in all
material respects, the financial position of P&L Coal Holdings Corporation at
March 31, 1998, in confirmity with generally accepted accounting principles.
Ernst & Young LLP
St. Louis, MO
July 9, 1998
F-2
<PAGE>
P&L COAL HOLDINGS CORPORATION
BALANCE SHEET
<TABLE>
<CAPTION>
MARCH 31,
1998
---------
<S> <C>
ASSETS
Current assets
Cash and cash equivalents........................................... $ 1
----
Total current assets.............................................. 1
Noncurrent assets..................................................... --
----
Total assets...................................................... $ 1
====
LIABILITIES AND STOCKHOLDER'S EQUITY
Total liabilities................................................. $--
----
Stockholders' equity.................................................. 1
----
Total liabilities and stockholder's equity........................ $ 1
====
</TABLE>
See accompanying notes to combined financial statements.
F-3
<PAGE>
P&L COAL HOLDINGS CORPORATION
NOTE TO BALANCE SHEET
(1) BASIS OF PRESENTATION
Description of Business
P&L Coal Holdings Corporation (the "Company") was incorporated February 27,
1998 for the purpose of acquiring the coal business and the U.S. energy
trading business held by The Energy Group PLC.
Details of Stockholder's Equity
Stockholder's equity as of March 31, 1998 is summarized as follows:
<TABLE>
<CAPTION>
COMMON PAID-IN CAPITAL IN RETAINED TOTAL
STOCK EXCESS OF PAR VALUE EARNINGS STOCKHOLDER'S EQUITY
------ ------------------- -------- --------------------
<S> <C> <C> <C>
$0.01 $0.99 $0.00 $1.00
</TABLE>
P&L Coal Holdings Corporation common stock has a par value of $.01 per
share; 1,000 shares are authorized and 1 share is outstanding at March 31,
1998. Effective May 15, 1998, the Company amended and restated its certificate
of incorporation in connection with its acquisition of the businesses
discussed above, such acquisition was completed May 19, 1998. The amended
capital structure provides for 35 million of authorized shares, comprised of
25 million common shares at $.01 par value per share, and 10 million non-
convertible, exchangeable preferred shares at $.01 par value per share.
F-4
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
Peabody Holding Company, Inc. and Subsidiaries
We have audited the accompanying combined balance sheets of P&L Coal Group
as of March 31, 1998 and 1997 and September 30, 1996, and the related
statements of combined operations, combined changes in invested capital, and
combined cash flows for the year ended March 31, 1998, for the six months
ended March 31, 1997, and for each of the two years in the period ended
September 30, 1996. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the combined financial position of P&L Coal Group at
March 31, 1998 and 1997 and September 30, 1996, and the combined results of
its operations and its cash flows for the year ended March 31, 1998, the six
months ended March 31, 1997, and each of the two years in the period ended
September 30, 1996, in conformity with generally accepted accounting
principles.
As discussed in Note 1 to the combined financial statements, in 1996 the
Company changed its method of accounting for the impairment of long-lived
assets and for long-lived assets to be disposed of.
Ernst & Young LLP
St. Louis, MO
April 24, 1998
F-5
<PAGE>
P&L COAL GROUP
STATEMENTS OF COMBINED OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- --------------- ------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
REVENUES
Sales................. $2,075,134 $1,000,419 $2,075,142 $2,087,656
Other revenues........ 169,328 63,674 118,444 88,180
---------- ---------- ---------- ----------
Total revenues...... 2,244,462 1,064,093 2,193,586 2,175,836
OPERATING COSTS AND
EXPENSES
Operating costs and
expenses............. 1,710,801 822,938 1,693,543 1,671,433
Depreciation,
depletion and
amortization......... 202,640 101,730 197,853 190,330
Selling and
administrative
expenses............. 83,640 41,421 75,699 81,389
Impairment of long-
lived assets......... -- -- 890,829 --
Net gain on property
and equipment
disposals............ (21,806) (4,091) (13,042) (12,928)
---------- ---------- ---------- ----------
OPERATING PROFIT
(LOSS)................. 269,187 102,095 (651,296) 245,612
Interest expense...... (33,635) (24,700) (62,526) (58,355)
Interest income....... 14,977 8,590 11,355 5,482
---------- ---------- ---------- ----------
INCOME (LOSS) BEFORE
INCOME TAXES........... 250,529 85,985 (702,467) 192,739
Income tax provision
(benefit)............ 90,193 27,553 (256,185) 92,352
---------- ---------- ---------- ----------
NET INCOME (LOSS)....... $ 160,336 $ 58,432 $ (446,282) $ 100,387
========== ========== ========== ==========
</TABLE>
See accompanying notes to combined financial statements.
F-6
<PAGE>
P&L COAL GROUP
COMBINED BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31, MARCH 31, SEPTEMBER 30,
1998 1997 1996
----------- ----------- -------------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents............ $ 96,821 $ 281,109 $ 181,533
Accounts receivable, less allowance
of $9,100 in 1998,
$5,525 in 1997 and $5,072 in 1996... 326,540 220,956 203,493
Receivables from affiliates, net..... 112,763 5,882 1,615
Materials and supplies............... 67,343 67,730 65,264
Coal inventory....................... 197,480 187,381 161,822
Assets from trading and price risk
management activities............... 1,295,169 -- --
Deferred income taxes................ -- 133 5,135
Other current assets................. 30,036 27,673 34,311
----------- ----------- -----------
Total current assets............... 2,126,152 790,864 653,173
Property, plant, equipment and mine
development
Land and coal interests.............. 3,075,916 3,116,394 3,123,488
Building and improvements............ 721,883 713,979 690,239
Machinery and equipment.............. 1,441,140 1,466,113 1,469,492
Less accumulated depreciation,
depletion and amortization.......... (1,565,397) (1,507,695) (1,467,857)
----------- ----------- -----------
Property, plant, equipment and mine
development, net...................... 3,673,542 3,788,791 3,815,362
Investments and other assets........... 555,540 446,157 448,158
----------- ----------- -----------
Total assets....................... $ 6,355,234 $ 5,025,812 $ 4,916,693
=========== =========== ===========
LIABILITIES AND INVESTED CAPITAL
Current liabilities
Short-term borrowings and current
maturities of long-term debt........ $ 46,616 $ 121,532 $ 243,273
Income taxes payable................. 2,388 16,088 27,173
Deferred income taxes................ 6,036 -- --
Liabilities from trading and price
risk management activities.......... 947,467 -- --
Accounts payable and accrued
expenses............................ 587,674 486,168 512,192
----------- ----------- -----------
Total current liabilities.......... 1,590,181 623,788 782,638
Long-term debt, less current
maturities............................ 555,660 200,191 213,594
Deferred income taxes.................. 661,572 589,280 588,952
Accrued reclamation and other
environmental liabilities............. 416,361 436,152 451,611
Workers' compensation obligations...... 260,895 284,001 291,619
Accrued postretirement benefit costs... 876,244 860,952 853,625
Obligation to industry fund............ 97,045 123,816 137,683
Other noncurrent liabilities........... 209,434 230,846 213,316
----------- ----------- -----------
Total liabilities.................. 4,667,392 3,349,026 3,533,038
Invested capital....................... 1,687,842 1,676,786 1,383,655
----------- ----------- -----------
Total liabilities and invested
capital........................... $ 6,355,234 $ 5,025,812 $ 4,916,693
=========== =========== ===========
</TABLE>
See accompanying notes to combined financial statements.
F-7
<PAGE>
P & L COAL GROUP
STATEMENTS OF COMBINED CHANGES IN INVESTED CAPITAL
<TABLE>
<CAPTION>
INVESTED
CAPITAL
--------------
(IN THOUSANDS)
<S> <C>
SEPTEMBER 30, 1994............................................... $1,656,560
Capital contribution........................................... 206,420
Dividend paid.................................................. (274,600)
Net transactions with affiliates............................... (43,730)
Foreign currency translation adjustments....................... 5,938
Net income..................................................... 100,387
----------
SEPTEMBER 30, 1995............................................... $1,650,975
Capital contribution........................................... 284,156
Dividend paid.................................................. (72,830)
Net transactions with affiliates............................... (46,114)
Foreign currency translation adjustments....................... 13,750
Net loss....................................................... (446,282)
----------
SEPTEMBER 30, 1996............................................... $1,383,655
Capital contribution........................................... 269,168
Net transactions with affiliates............................... (31,670)
Foreign currency translation adjustments....................... (2,799)
Net income..................................................... 58,432
----------
MARCH 31, 1997................................................... $1,676,786
Net transactions with affiliates............................... (41,987)
Dividend paid.................................................. (65,109)
Foreign currency translation adjustments....................... (42,184)
Net income..................................................... 160,336
----------
MARCH 31, 1998................................................... $1,687,842
==========
</TABLE>
See accompanying notes to combined financial statements.
F-8
<PAGE>
P & L COAL GROUP
STATEMENTS OF COMBINED CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS ENDED YEAR ENDED YEAR ENDED
MARCH 31, MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- ---------------- ------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
CASH FLOWS FROM
OPERATING ACTIVITIES
Net income (loss)....... $160,336 $ 58,432 $ (446,282) $100,387
Adjustments to reconcile
net income (loss) to
net cash provided by
operating activities:
Depreciation,
depletion and
amortization.......... 202,640 101,730 197,853 190,330
Deferred income
taxes................. 65,508 17,529 (281,651) 62,776
Amortization of debt
discount.............. 11,205 5,767 10,378 9,792
Net gain on property
and equipment
disposals............. (21,806) (4,091) (13,042) (12,928)
Gain on contract
restructuring......... (49,270) (11,624) (22,000) (23,861)
Impairment of long-
lived assets.......... -- -- 890,829 --
Gain on sale of
investments........... (2,199) -- -- --
Change in current
assets and
liabilities,
excluding effects of
acquisitions:
(Increase) decrease
in accounts
receivable.......... (70,326) (17,718) 45,908 (5,267)
(Increase) decrease
in materials and
supplies............ (438) (2,526) 8,482 (1,770)
Increase in coal
inventory........... (16,160) (25,930) (3,373) (21,510)
(Increase) decrease
in other current
assets.............. (3,385) 6,550 (9,736) 14,958
Increase (decrease)
in accounts payable
and accrued
expenses............ 61,707 (25,496) (68,525) 22,342
Increase (decrease)
in income taxes
payable............. (12,447) (10,964) (31,079) 28,826
Net assets from
trading and price
risk management
activities............ (107,102) -- -- --
Accrued reclamation
and related
liabilities........... (18,509) (15,385) (28,678) (52,395)
Workers' compensation
obligations........... (23,106) (7,618) (38,036) (56,318)
Accrued postretirement
benefit costs......... 15,292 7,324 12,165 13,539
Obligation to industry
fund.................. (26,771) (13,867) (32,532) 1,696
Other, net............. 16,509 716 20,854 1,946
-------- -------- ---------- --------
Net cash provided by
operating
activities.......... 181,678 62,829 211,535 272,543
======== ======== ========== ========
CASH FLOWS FROM
INVESTING ACTIVITIES
Additions to property,
plant, equipment and
mine development....... (166,336) (76,460) (152,106) (188,006)
Acquisitions and equity
investments............ (58,715) -- -- (359,557)
Proceeds from sale of
business unit.......... -- -- -- 27,500
Proceeds from contract
restructurings......... 57,460 15,466 29,211 32,125
Proceeds from property
and equipment
disposals.............. 37,732 4,824 17,255 25,825
-------- -------- ---------- --------
Net cash used in
investing
activities.......... (129,859) (56,170) (105,640) (462,113)
======== ======== ========== ========
CASH FLOWS FROM
FINANCING ACTIVITIES
Repayments of short-term
borrowings and long-
term debt.............. (363,566) (503,138) (862,113) (485,253)
Proceeds from short-term
borrowings and long-
term debt.............. 359,391 367,093 1,037,716 425,833
Capital contribution.... -- 269,168 284,156 206,420
Net transactions with
affiliates............. (41,987) (31,670) (46,114) (43,730)
Dividend paid........... (65,109) -- (72,830) (274,600)
Net change in due
to/from affiliates..... (124,118) (7,275) (324,828) 350,323
-------- -------- ---------- --------
Net cash provided by
(used in) financing
activities.......... (235,389) 94,178 15,987 178,993
Effect of exchange rate
changes on cash and
equivalents............ (718) (1,261) 5,886 998
-------- -------- ---------- --------
Net increase (decrease)
in cash and cash
equivalents............ (184,288) 99,576 127,768 (9,579)
Cash and cash
equivalents at
beginning of period.... 281,109 181,533 53,765 63,344
-------- -------- ---------- --------
Cash and cash
equivalents at end of
period................. $ 96,821 $281,109 $ 181,533 $ 53,765
======== ======== ========== ========
</TABLE>
See accompanying notes to combined financial statements
F-9
<PAGE>
P & L COAL GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying combined financial statements include the combined
operations and balance sheets of the coal mining business and the U.S. energy
trading business held by The Energy Group, PLC ("The Energy Group") prior to
their acquisition by P&L Coal Holdings Corporation on May 19, 1998 (see note
19). These financial statements include the accounts of Peabody Holding
Company, Inc. ("Peabody Holding Company"), Gold Fields Mining Corporation
("Gold Fields") which owns Lee Ranch mine ("Lee Ranch"), Citizens Power LLC
("Citizens Power"), Peabody Resources Holdings Pty Ltd. ("Peabody Resources"),
an Australian company, which is held by Darex Capital, Inc. and Peabody
Australia Ltd. and their majority owned subsidiaries, and certain other
accounts of The Energy Group subsidiaries (collectively, the "Company"). Darex
Capital, Inc. and Peabody Australia Ltd. assets and operations relate solely
to their holdings of Peabody Resources.
Prior to March 7, 1997, the Company was a wholly owned indirect subsidiary
of Hanson PLC (collectively referred to as "Hanson"). During 1996 and 1997,
Hanson demerged its operations into four separate companies. As part of this
tax-free distribution plan ("spin-off"), on February 24, 1997 Hanson demerged
The Energy Group to hold the energy business of Hanson. In addition, on March
7, 1997, a subsidiary of Hanson sold the outstanding common stock of Peabody
Holding Company to a subsidiary of The Energy Group and combined it with other
Hanson energy companies to form The Energy Group.
Joint ventures are accounted for using the equity method except for
undivided interests in Australia, which are reported using pro rata
consolidation whereby the Company reports its proportionate share of assets,
liabilities, income and expenses. All significant intercompany transactions
have been eliminated.
The financial statements include the following asset and operating amounts
for Australian entities utilizing pro rata consolidation (dollars in
thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Total revenue............ $ 76,406 $ 41,058 $ 78,388 $80,520
Operating income......... 17,731 $ 8,386 20,632 18,088
<CAPTION>
MARCH 31, MARCH 30, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Total assets............. $139,200 $118,154 $109,169 $84,070
</TABLE>
Effective with the date of the spin-off, the Company changed its fiscal
year-end from September 30 to March 31. Accordingly, the 1997 results
represent only six months of activity.
DESCRIPTION OF BUSINESS
The Company is engaged principally in the mining of coal for sale primarily
to electric utilities in the United States. In addition, during 1998, the
Company began marketing and trading electric power and energy-related
commodity risk management products through its recently acquired subsidiary,
Citizens Power. Citizens Power also provides services and price risk
management capabilities to the electric power industry. Price risk management
activities include the restructuring of power sales and power supply
agreements. Citizens Power balances sales and purchase commitments to mitigate
market risk and secure cash flow streams.
F-10
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
ACCOUNTING FOR TRADING AND PRICE RISK MANAGEMENT
The Company's trading and price risk management activities are accounted for
using the fair value method. Under such method, forwards, futures, options,
swaps and other financial instruments with third parties are reflected at
market value and are included in the Combined Balance Sheets as "Assets and
liabilities from trading and price risk management activities". In the absence
of quoted value, financial instruments are valued at fair value, considering
time value, volatility of the underlying commodity and other factors as
determined by the Company's management. Resulting gains or losses are
recognized in the profit and loss account in the period of change.
SALES
The Company incurs certain "add-on" taxes and fees on coal sales. Coal sales
are reported including taxes and fees charged by various federal and state
governmental bodies.
Also included are revenues from trading electric power and related commodity
risk management products utilizing the fair value method of accounting.
Revenues from trading activities are recognized for the differences between
contract and market prices. Revenues from price risk management activities are
recognized by discounting the estimated net cash flows from the underlying
long-term sales and purchase agreements after providing for appropriate
reserves for credit, market risk and other future costs.
OTHER REVENUES
Other revenues include royalties related to coal lease agreements, earnings
in joint ventures, management fees, farm income and contract termination
payments (see note 14).
CASH AND CASH EQUIVALENTS
Cash and cash equivalents are stated at cost, which approximates fair value.
Cash equivalents consist of highly liquid investments with an original
maturity of three months or less.
INVENTORIES
Materials and supplies and coal inventory are valued at the lower of average
cost or market. Coal inventory costs include labor, supplies, equipment costs,
operating overhead and other related costs.
PROPERTY, PLANT, EQUIPMENT AND MINE DEVELOPMENT
Property, plant, equipment and mine development are recorded at cost.
Interest costs applicable to major asset additions are capitalized during the
construction period including $1.5 million for the year ended March 31, 1998
and $0.1 million for the six months ended March 31, 1997. No interest was
capitalized for the year ended September 30, 1996.
Expenditures which extend the useful lives of existing plant and equipment
are capitalized. Maintenance and repairs are charged to operating costs and
expenses as incurred. Costs incurred to develop coal mines or to expand the
capacity of operating mines are capitalized. Development costs incurred to
maintain current production capacity at a mine and exploration expenditures
are charged to expense as incurred. Certain costs to acquire computer hardware
and the development and/or purchase of software for internal use are
capitalized and depreciated over the estimated useful lives.
Depreciation of plant and equipment is computed using the straight-line
method over the estimated useful lives of the various classes of assets, which
vary from 3 to 49 years. Depletion of coal lands is computed using the units-
of-production method. Mine development costs are principally amortized over
the estimated lives of the mines using the straight-line method.
F-11
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
ACCRUED RECLAMATION AND OTHER ENVIRONMENTAL LIABILITIES
The Company records a liability for the estimated costs to reclaim land as
the acreage is disturbed during the ongoing surface mining process. The
estimated costs to reclaim support acreage and to perform other related
functions at both surface and underground mines are recorded ratably over the
lives of the mines. As of March 31, 1998, the Company had $372.4 million in
surety bonds outstanding and $13.9 million in letters of credit to secure
reclamation. The amount of reclamation self-bonding in certain states in which
the Company qualifies approximated $277.3 million at March 31, 1998.
Accruals for other environmental matters are recorded in operating expenses
when it is probable that a liability has been incurred and the amount of the
liability can be reasonably estimated. Accrued liabilities are exclusive of
claims against third parties and are not discounted. In general, costs related
to environmental remediation are charged to expense. Environmental costs are
capitalized only to the extent the capitalization criteria of Emerging Issues
Task Force 90-8 are met (see note 17).
INCOME TAXES
Income taxes are accounted for using a balance sheet approach known as the
liability method. The liability method accounts for deferred income taxes by
applying statutory tax rates in effect at the date of the balance sheet to
differences between the book and tax basis of assets and liabilities.
POSTEMPLOYMENT BENEFITS
The Company provides postemployment benefits to qualifying employees, former
employees and dependents under the provisions of various benefit plans or as
required by state or federal or Australian law. The Company accounts for
workers' compensation obligations and other Company provided postemployment
benefits on the accrual basis of accounting.
CONCENTRATION OF CREDIT RISK AND MARKET RISK
The Company mines bituminous and subbituminous coal, which is burned to
produce steam and generate electricity. Some of the Company's West Virginia
mines also produce metallurgical grade bituminous coal, which is used as a raw
material in the production of coke for steel manufacturers and foundries. U.S.
electric utilities accounted for 88 percent of the Company's sales tonnages
for the year ended March 31, 1998, 88 percent for the six months ended March
31, 1997, 87 percent for the year ended September 30, 1996 and 85 percent for
the year ended September 30, 1995.
Certain U.S. subsidiaries of the Company are party to two separate labor
agreements with the United Mine Workers of America ("UMWA") and certain
Australian subsidiaries of the Company are party to a separate labor agreement
with the United Mineworkers Federation of Australia. Sales of coal by these
subsidiaries were 36 percent of the Company's tons sold for the year ended
March 31, 1998, 37 percent for the six months ended March 31, 1997, 38 percent
for the year ended September 30, 1996 and 41 percent for the year ended
September 30, 1995.
The Company's trading and price risk management activities give rise to
market risk, which represents the potential loss caused by a change in the
market value of a particular commitment. Market risks are actively monitored
to ensure compliance with risk management policies of the Company. Policies
are in place which limit the amount of total net exposure the Company may
enter into at any point in time. Procedures exist which allow for monitoring
of all commitments and positions with daily reporting to senior management.
USE OF ESTIMATES IN THE PREPARATION OF THE FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
F-12
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
disclosure of contingent assets and liabilities at the date of the financial
statements and reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
IMPAIRMENT OF LONG-LIVED ASSETS
During fiscal 1996, the Company elected early adoption of the provisions of
Statement of Financial Accounting Standards No. 121 ("SFAS 121"), "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be
Disposed Of". SFAS 121 requires impairment losses to be recognized on long-
lived assets used in operations when indicators of impairment are present and
the undiscounted cash flows estimated to be generated under various
assumptions by those assets are less than the assets' carrying amount.
Impairment losses under SFAS 121 are measured by comparing the estimated fair
value of the assets to their carrying amount.
In fiscal year 1996, a noncash charge of $890.8 million ($525.7 million
after income taxes) was recorded as a result of adopting the evaluation
methodology of SFAS 121, principally related to the impairment of certain
inactive and undeveloped coal reserves.
Prior to the adoption of this pronouncement, asset impairment was evaluated
at an operating company level based on the contribution of operating profits
and undiscounted cash flows being generated from those operations. Under the
Company's previous policy, assets used in operations, which consisted of
multiple operating companies, were evaluated for impairment based on gross
margins and cash flows generated by each separate operating company in a given
business cycle.
SFAS 121 requires the impairment review to be performed at the lowest level
of asset grouping for which there are identifiable cash flows, a change from
the higher level at which the Company's previous accounting policy measured
impairment. The Company's economic grouping of assets was based on the markets
in which the operations compete and consisted of both active and inactive
mines, as well as undeveloped properties. Evaluation of assets at the lower
grouping level indicated an impairment of certain of those assets. A
significant factor contributing to the estimated impairment was a decline in
certain coal markets caused by weak demand and lower prices. Coal market
conditions have also been adversely impacted by the effects of the Clean Air
Act Amendments of 1990.
FOREIGN CURRENCY TRANSLATIONS
Assets and liabilities of foreign affiliates are generally translated at
current exchange rates, and related translation adjustments are reported as a
component of invested capital. Income statement accounts are translated at the
average rates during the period.
RECLASSIFICATIONS
Certain amounts for 1997, 1996 and 1995 have been reclassified to conform
with 1998 report classifications with no effect on previously reported net
income or invested capital.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, Statement of Financial Accounting Standards ("SFAS") No. 130,
"Reporting Comprehensive Income" was issued which establishes new rules for
the reporting and display of comprehensive income and its components. The
Company intends to adopt this statement for its 1999 fiscal year.
Also in June 1997, SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information" was issued which establishes standards for
disclosure about operating segments in annual financial statements and
selected information in interim financial reports. It also establishes
standards for related disclosures about products and services, geographic
areas and major customers. This statement supersedes SFAS No. 14,
F-13
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
"Financial Reporting for Segments of a Business Enterprise." The new standard
becomes effective for the Company's 1999 fiscal year and requires comparative
information from earlier years be restated to conform to requirements of this
standard. The Company is evaluating the requirements of SFAS No. 131 and the
effects, if any, on the Company's current reporting and disclosures.
In February 1998, SFAS No. 132, "Employers' Disclosures about Pensions and
Other Postretirement Benefits" was issued which improves and standardizes
disclosures by eliminating certain existing reporting requirements and adding
new disclosures. The statement addresses disclosure issues only and does not
change the measurement or recognition provisions specified in previous
statements. The statement supercedes SFAS No. 87, "Employers' Accounting for
Pensions," SFAS No. 88, "Accounting for Settlements and Curtailments of
Defined Benefit Pensions Plans and for Termination Benefits" and SFAS No. 106,
"Employers' Accounting for Postretirement Benefits Other Than Pensions." The
Company intends to adopt this statement for its 1999 fiscal year.
(2) BUSINESS COMBINATIONS
In May 1997, the Company acquired all of the ownership interests in Citizens
Lehman Power L.L.C. ("Citizens Power") and its subsidiaries. Citizens Power,
located in Boston, Massachusetts, markets and trades electric power and
energy-related commodity risk management products. Citizens Power also
provides services and price risk management capabilities to the electric power
industry (see note 1).
The purchase consideration is $20.0 million in cash, plus up to a maximum of
$100.0 million of additional consideration based upon specific calculations
related to increases in net asset value calculated at various dates over a
five-year period ending March 31, 2002. The contingent payments are reflected
in the financial statements as additional goodwill when the contingency is
determined and the additional consideration becomes payable.
Of the $100.0 million additional contingent consideration, $65.0 million has
been determined owed as of March 31, 1998. Based upon Citizens Power's
calculations as of June 1997, the Company issued a $30.0 million note to the
sellers. The note is due March 31, 2000. Interest, which is payable quarterly,
accrues at the London Interbank Offered Rate ("LIBOR") plus 18 basis points.
In addition, the first amendment to the purchase agreement, dated July 1997,
provided a total $35.0 million minimum on the total remaining net asset value
contingency calculations, with a $70.0 million maximum. In the event of a
change of ownership control, the agreement provides potential changes to the
net asset value contingency calculations; however, the $120.0 million purchase
price maximum remains.
The acquisition was accounted for as a purchase and accordingly, the
operating results of Citizens Power have been included in the Company's
combined financial statements since the date of acquisition. The excess of the
aggregate purchase price over the fair market value of net assets acquired
(which will increase for any future contingent cash payments) of approximately
$78.4 million as of March 31, 1998 is being amortized on a straight-line basis
over 20 years.
The following unaudited pro forma results of operations for the year ended
March 31, 1998, the six months ended March 31, 1997 and the years ended
September 30, 1996 and 1995, respectively, assumes the acquisition had
occurred at the beginning of each fiscal year. The pro forma results of
Citizens Power would be as follows (dollars in thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues............... $28,395 $18,174 $11,980 $ (147)
Net income (loss)*..... 8,562 $15,772 938 (3,698)
</TABLE>
- --------
* No taxes applicable to limited liability company
F-14
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The unaudited pro forma results of P & L Coal Group would be as follows
(dollars in thousands):
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED YEAR ENDED YEAR ENDED
MARCH 31, MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- ---------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues................... $2,246,417 $1,082,267 $2,205,566 $2,175,689
Income (loss) before income
taxes..................... 250,507 101,757 (701,529) 189,041
Net income (loss).......... 160,314 74,204 (445,344) 96,689
</TABLE>
The pro forma results include amortization of the purchase goodwill since
the acquisition date. The pro forma results are not necessarily indicative of
what actually would have occurred if the acquisition had been completed as of
the beginning of each of the fiscal periods presented, nor are they
necessarily indicative of future combined results.
Effective January 1, 1998, Thoroughbred L.L.C. ("Thoroughbred"), a
subsidiary of Peabody Holding Company, purchased an additional 10 percent
interest in Black Beauty Coal Company for $37.7 million in cash and as a
result, increased its ownership in the partnership to 43.3 percent.
Thoroughbred also obtained an option to purchase an additional 5 percent
interest in the partnership on or before January 15, 1999.
On July 17, 1995, Peabody Bengalla Investments Pty. Limited, a subsidiary of
the Company, acquired an additional 10 percent in Bengalla's Joint Venture for
$1.9 million.
On November 1, 1994, Caballo Coal Company, a subsidiary of the Company,
completed the purchase of Exxon Coal USA, Inc.'s Carter Mining Company for
$356.2 million in cash. The purchase included Rawhide and Caballo coal mines,
located in the Powder River Basin of Wyoming, and associated coal supply
agreements. Caballo Coal Company's revenues and results of operations for the
eleven month period that it was owned by Peabody Holding Company during fiscal
1995 of $129.0 million and $31.3 million, respectively, would not have been
materially different if the acquisition had occurred at the beginning of the
year.
In 1995, the Company acquired controlling interest in an equity investment
for $1.5 million in cash and a note payable valued at $1.6 million.
(3) COAL INVENTORY
Coal inventory consisted of the following (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, MARCH 31, SEPTEMBER 30,
1998 1997 1996
--------- --------- -------------
<S> <C> <C> <C>
Saleable coal................................. $51,443 $ 52,821 $ 40,474
Raw coal...................................... 25,422 22,551 13,520
Work in process............................... 120,615 112,009 107,828
-------- -------- --------
$197,480 $187,381 $161,822
======== ======== ========
</TABLE>
Raw coal represents coal stockpiles that in some cases may be sold in
current condition or may be further processed prior to shipment to a customer.
Work in process consists of the average cost to remove overburden above an
unmined coal seam as a part of the surface mining process.
F-15
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(4) INVESTMENTS AND OTHER ASSETS
Investments and other assets consisted of the following (dollars in
thousands):
<TABLE>
<CAPTION>
MARCH 31 MARCH 31 SEPTEMBER 30
1998 1997 1996
-------- -------- ------------
<S> <C> <C> <C>
Notes receivable................................ $173,639 $180,218 $188,414
Peabody Holding Company--intangible assets...... 97,783 106,193 110,296
Citizens Power--Goodwill........................ 76,198 -- --
Equity investments and other.................... 207,920 159,746 149,448
-------- -------- --------
$555,540 $446,157 $448,158
======== ======== ========
</TABLE>
Notes Receivable
The rights of the lease between Hospah Coal Company, a wholly-owned
subsidiary of Santa Fe Pacific Corporation ("SFPC") and Chaco Energy Company
("Chaco"), a subsidiary of Texas Utilities Company, were transferred to Hanson
Natural Resources Company ("HNRC") with the acquisition of Lee Ranch in June
1993. On February 28, 1990, SFPC and Texas Utilities settled litigation
related to the original lease which included an amended coal lease whereby
Chaco agreed to make certain non-recoupable advance royalty payments to SFPC
including annual payments of approximately $16.0 million for the period 1991
through 2017. At March 31, 1998, the present value of the non-recoupable
advance royalty payments of $169.9 million is included in both "Other current
assets" ($7.2 million) and "Investments and other assets" ($162.7 million) in
the Combined Balance Sheets. At March 31, 1997, the present value of the non-
recoupable advance royalty payments of $174.0 million is included in both
"Other current assets" ($7.0 million) and "Investments and other assets"
($167.0 million) in the Combined Balance Sheets. At September 30, 1996, the
present value of the non-recoupable advance royalty payments of $184.0 million
is included in both "Other current assets" ($12.9 million) and "Investments
and other assets" ($171.1 million) in the Combined Balance Sheets.
As a result of amendments signed with American Electric Power Service
Corporation ("AEP") and R&F Coal Company ("R&F") on December 21, 1990, the
Simco AEP Conesville coal supply agreement was terminated effective April 20,
1991. As compensation, R&F agreed to pay a subsidiary of the Company $760,000
per month for 96 months with the first payment commencing in January 1991. The
present value of $52.9 million was recorded as total consideration received on
the Simco contract buyout. The March 31, 1997 and September 30, 1996 balances
of $6.6 million and $10.8 million, respectively, represent the noncurrent
portion of this note. At March 31, 1998 and 1997 and September 30, 1996 the
current amounts of $6.6 million, $8.2 million and $7.8 million, respectively,
are reflected in "Accounts receivable" in the Combined Balance Sheets.
Peabody Holding Company--Intangible Assets
Intangible assets, primarily purchased contract rights which are amortized
essentially on a per ton shipped basis, were $138.9 million at March 31, 1998
and 1997 and $141.8 million at September 30, 1996. Accumulated amortization at
March 31, 1998 and 1997 and September 30, 1996 was $41.1 million, $32.7
million and $31.5 million, respectively. The charge against earnings for
amortization of intangible assets was $8.4 million for the year ended March
31, 1998, $4.1 million for the six months ended March 31, 1997 and $8.9
million and $9.5 million for the years ended September 30, 1996 and 1995,
respectively.
Citizens Power--Goodwill
Goodwill in the amount of $78.4 million at March 31, 1998 is amortized on a
straight-line basis over 20 years and is recorded net of accumulated
amortization of $2.2 million for 1998. Goodwill represents the excess of the
cost over the net tangible and identifiable intangible assets of the
acquisition of Citizens Power (see note 2), and is stated at cost. The Company
assesses the recoverability of goodwill based upon several factors,
F-16
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
including management's intention with respect to the operations to which the
goodwill relates and those operations' projected future income and
undiscounted cash flows. Write-downs of goodwill are recognized when it is
determined that the value of such asset has been impaired. Amortization
expense for the year ended March 31, 1998 was $2.2 million.
(5) LEASES
The Company leases equipment and facilities under various noncancelable
lease agreements. Certain lease agreements require the maintenance of
specified ratios and contain restrictive covenants which limit indebtedness,
subsidiary dividends, investments, sales of assets and other actions of the
Company. Rental expense under operating leases was $40.6 million for the year
ended March 31, 1998, $17.1 million for the six months ended March 31, 1997,
$36.5 million for the year ended September 30, 1996 and $31.8 million for the
years ended September 30, 1995. The cost of property, plant, equipment and
mine development assets acquired under capital leases was $56.0 million and
$54.7 million at March 31, 1998 and 1997, respectively, and $49.6 million at
September 30, 1996. The related accumulated amortization was $27.1 million and
$24.4 million at March 31, 1998 and 1997, respectively, and $22.6 million at
September 30, 1996. Amortization of capital leases is included in
"Depreciation, depletion and amortization" in the Statements of Combined
Operations.
The Company also leases coal reserves under agreements that require
royalties to be paid as the coal is mined. Total royalty expense was $132.9
million for the year ended March 31, 1998, $64.2 million for the six months
ended March 31, 1997 and $136.2 million and $127.9 million for the years ended
September 30, 1996 and 1995, respectively. Certain agreements also require
minimum annual royalties to be paid regardless of the amount of coal mined
during the year.
Future minimum lease and royalty payments as of March 31, 1998 are as
follows (dollars in thousands):
<TABLE>
<CAPTION>
CAPITAL OPERATING COAL
YEAR LEASES LEASES RESERVES
- ---- ------- --------- --------
<S> <C> <C> <C>
1999................................................ $ 2,841 $ 35,534 $ 13,433
2000................................................ 3,345 34,909 12,997
2001................................................ 2,630 28,594 10,987
2002................................................ 2,443 25,769 10,205
2003................................................ 2,841 21,820 9,114
2004 and thereafter................................. 12,945 65,904 45,695
------- -------- --------
Total minimum lease payments........................ 27,045 $212,530 $102,431
======== ========
Less interest....................................... 5,477
-------
Present value of minimum capital lease payments..... $21,568
=======
</TABLE>
F-17
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(6) ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses consisted of (dollars in thousands):
<TABLE>
<CAPTION>
MARCH
MARCH 31, 31, SEPTEMBER 30,
1998 1997 1996
--------- -------- -------------
<S> <C> <C> <C>
Accounts payable.......... $234,277 $134,132 $123,721
Accrued payroll and
related benefits......... 80,743 83,272 85,250
Accrued taxes other than
income................... 75,791 77,501 85,173
Accrued health care....... 58,649 56,588 58,377
Workers' compensation
obligations.............. 39,927 38,145 40,835
Accrued royalties......... 16,401 21,095 18,353
Accrued pensions.......... 12,953 4,231 3,883
Accrued lease payments.... 9,321 9,611 25,182
Accrued interest.......... 3,700 4,547 11,823
Customer contribution
payable.................. -- 2,823 12,784
Other accrued expenses.... 55,912 54,223 46,811
-------- -------- --------
Total accounts payable
and accrued expenses... $587,674 $486,168 $512,192
======== ======== ========
</TABLE>
(7) INCOME TAXES
Pre-tax income (loss) is as follows (dollars in thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Pretax income (loss):
United States......... $207,884 $67,029 $(743,564) $156,875
Foreign............... 42,645 18,956 41,097 35,864
-------- ------- --------- --------
$250,529 $85,985 $(702,467) $192,739
======== ======= ========= ========
</TABLE>
Total income tax provision (benefit) consisted of (dollars in thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Current:
U.S. Federal.......... $ -- $ 2,216 $ 8,752 $10,940
Foreign............... 21,001 8,261 14,896 15,204
State................. 3,684 (453) 1,818 3,432
------- ------- --------- -------
Total current....... 24,685 10,024 25,466 29,576
------- ------- --------- -------
Deferred:
U.S. Federal.......... 65,463 16,058 (239,014) 53,970
Foreign............... (5,457) (86) (2,786) (697)
State................. 5,502 1,557 (39,851) 9,503
------- ------- --------- -------
Total deferred...... 65,508 17,529 (281,651) 62,776
------- ------- --------- -------
Total provision
(benefit).......... $90,193 $27,553 $(256,185) $92,352
======= ======= ========= =======
</TABLE>
F-18
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The income tax rate on income (loss) differed from the U.S. federal
statutory rate as follows:
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
---------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Federal statutory rate.. 35.0% 35.0% 35.0% 35.0%
Changes in the asset
valuation allowance.... 5.7 3.3 0.7 (1.1)
Foreign earnings........ 0.4 1.8 0.3 1.0
State income taxes, net
of U.S. federal tax
benefit................ 2.8 0.7 5.5 6.7
Depletion............... (8.3) (8.8) 1.8 (13.8)
Effect of tax sharing
arrangement with
Hanson................. -- -- (6.8) 19.9
Other, net.............. 0.4 -- -- 0.2
---- ---- ---- -----
36.0% 32.0% 36.5% 47.9%
==== ==== ==== =====
</TABLE>
Beginning March 7, 1997, the Company filed a consolidated U.S. federal
income tax return with its subsidiaries. At March 31, 1997, U.S. federal and
state income taxes were determined on that basis. Prior to March 7, the
Company consisted of two separate U.S. federal consolidated groups, Peabody
Holding Company and Peabody Investments, Inc. ("PII"), parent of Gold Fields.
For the years ended September 30, 1996 and 1995, Peabody Holding Company and
its subsidiaries were included in a consolidated federal income tax return
with other Hanson affiliates. Peabody Holding Company had a tax sharing
arrangement with Hanson whereby federal income taxes were computed as part of
a consolidated group of companies. For purposes of these financial statements,
Peabody Holding Company determined its federal tax provision (benefit) based
on its expected allocated share of the consolidated group tax position. State
taxes were determined on a separate return basis. Under the tax sharing
arrangement, Hanson allocated the consolidated federal income tax liability to
the members of the consolidated group by applying a ratio of each member's
separate taxable income to the sum of the separate taxable incomes of all
members having taxable income for the years. If the consolidated group had
taxable income, a member having a taxable loss did not receive a benefit for
that loss. If the consolidated group had a taxable loss, only members having a
taxable loss received a benefit for that loss. PII was the common parent of a
separate consolidated tax group. The group included its interest in the
operations of HNRC. HNRC was a partnership which historically included the
operations of Lee Ranch, Cavenham Timber and Western Rock Quarries. For
purposes of these statements, PII determined its federal and state tax
provision as if Lee Ranch was the only operation included for the years ended
September 30, 1996, 1995 and 1994.
Pursuant to The Energy Group spin-off from Hanson in February 1997, The
Energy Group entered into Tax Sharing Agreements (each, a "TSA") with both
Hanson and Millennium Chemicals, Inc. ("Millennium"), a former Hanson company.
Hanson has agreed to indemnify The Energy Group for all Peabody Investments'
federal and state income tax liabilities arising prior to February 25, 1997,
with the exception of those liabilities arising from the operations of Lee
Ranch subsequent to its acquisition in June 1993.
The Millennium TSA requires Millennium to indemnify The Energy Group and its
subsidiaries for all federal income tax liabilities arising from tax years in
which Peabody Holding Company and its subsidiaries were members of Hanson's
Anglo-American affiliated group (July 3, 1990 through September 30, 1996).
With respect to state income taxes, the Millennium TSA indemnifies The Energy
Group for Arizona income taxes in the years in which Peabody Holding Company
and subsidiaries filed a consolidated return with the Anglo-American group
(fiscal years 1994 to 1996).
F-19
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS (CONTINUED)
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and liabilities are presented below
(dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, MARCH 31, SEPTEMBER 30,
1998 1997 1996
---------- ---------- -------------
<S> <C> <C> <C>
Deferred tax assets:
Accrued long-term reclamation and mine
closing liabilities................... $ 57,773 $ 76,976 $ 79,543
Accrued long-term workers' compensation
liabilities........................... 114,280 118,230 122,907
Postretirement benefit obligations..... 358,137 353,589 353,679
Tax credits and loss carryforwards..... 105,100 92,794 99,130
Obligation to industry fund............ 51,410 61,365 66,893
Others................................. 74,217 87,037 95,621
---------- ---------- ----------
Total gross deferred tax assets...... $ 760,917 $ 789,991 $ 817,773
---------- ---------- ----------
Deferred tax liabilities:
Property, plant, equipment and mine
development principally due to
differences in depreciation, depletion
and asset writedowns.................. 959,037 1,079,634 1,086,884
Long-term debt, principally due to
amortization of debt discount......... 35,636 40,096 42,623
Others................................. 341,668 156,338 161,740
---------- ---------- ----------
Total gross deferred tax
liabilities......................... 1,336,341 1,276,068 1,291,247
---------- ---------- ----------
Asset valuation allowance................ (92,184) (103,070) (110,343)
---------- ---------- ----------
Net deferred tax liability............... $ (667,608) $ (589,147) $ (583,817)
========== ========== ==========
</TABLE>
Deferred taxes are included in the Combined Balance Sheets as follows
(dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, MARCH 31, SEPTEMBER 30,
1998 1997 1996
--------- --------- -------------
<S> <C> <C> <C>
Current deferred income taxes............... $ (6,036) $ 133 $ 5,135
Noncurrent deferred income taxes............ (661,572) (589,280) (588,952)
--------- --------- ---------
Net deferred tax liability................ $(667,608) $(589,147) $(583,817)
========= ========= =========
</TABLE>
The Company has alternative minimum tax ("AMT") credits of $59.6 million and
net operating loss ("NOL") carryforwards of $45.5 million at March 31, 1998.
The AMT credits have no expiration date and the NOL carryforwards expire in
the year 2011. The AMT credits and NOL carryforwards are fully offset by a
valuation allowance.
The Company made U.S. federal tax payments of $0.1 million for the year
ended March 31, 1998, $9.1 million for the six months ended March 31, 1997 and
$10.4 million and $2.8 million for the years ended September 30, 1996 and
1995, respectively. The Company paid state and local income taxes totaling
$0.8 million for the year ended March 31, 1998, $3.3 million for the six
months ended March 31, 1997 and $2.7 million and $2.5 million for the years
ended September 30, 1996 and 1995, respectively. Through September 30, 1996,
all required federal income tax payments were made by Hanson for Peabody
Holding Company.
Foreign tax payments were $18.3 million for the year ended March 31, 1998,
$13.4 million for the six months ended March 31, 1997 and $27.5 million for
the year ended September 30, 1996. No material foreign tax payments were made
for the year ended September 30, 1995.
F-20
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(8) SHORT-TERM BORROWINGS
Short-term borrowings consist of the following (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, MARCH 31, SEPTEMBER 30,
1998 1997 1996
--------- --------- -------------
<S> <C> <C> <C>
Commercial paper.............................. $10,080 $43,894 $225,653
The Energy Group credit facility.............. -- 50,000 --
Other......................................... 342 3,821 4,035
------- ------- --------
Short-term borrowings....................... $10,422 $97,715 $229,688
======= ======= ========
</TABLE>
At March 31, 1998 and 1997, Peabody Resources maintained a revolving
commercial paper facility denominated as $200.0 million Australian dollars
available through multiple banks. The interest rate is determined at the time
of borrowing based on the Bank Bill Swap Rate and at March 31, 1998, the
effective annual interest rate was 5.3 percent. At September 30, 1996, a
similar revolving commercial paper facility denominated as $400.0 million
Australian dollars (U.S. $316.7 million) was available.
Peabody Holding Company had borrowings against The Energy Group credit
facility which had an effective interest rate of 6.0 percent at March 31,
1997.
Peabody Holding Company maintained a line of credit amounting to $35.0
million with one bank at March 31, 1998 and Peabody Resources maintained lines
of credit amounting to $20.0 million Australian dollars (U.S. $13.4 million)
with several banks at March 31, 1998, to assure availability of funds at
prevailing market interest rates. There were no borrowings against the
Company's available lines of credit during fiscal year 1998.
The amount of interest paid was $1.8 million for the year ended March 31,
1998, $6.6 million for the six months ended March 31, 1997 and $12.8 million
and $4.3 million for the years ended September 30, 1996 and 1995,
respectively.
(9) LONG-TERM DEBT
Long-term debt consisted of the following (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, MARCH 31, SEPTEMBER 30,
1998 1997 1996
--------- --------- -------------
<S> <C> <C> <C>
5% Subordinated Note:
Principal................................... $280,000 $300,000 $ 310,000
Unamortized note discount................... (87,373) (98,368) (103,905)
-------- -------- ---------
192,627 201,632 206,095
Non-recourse Citizens Power debt.............. 293,922 -- --
Citizens Power obligations.................... 65,000 -- --
Capital lease obligations..................... 21,568 17,422 16,345
Project finance facility...................... 14,632 -- --
Other......................................... 4,105 4,954 4,739
-------- -------- ---------
Total long-term debt...................... 591,854 224,008 227,179
Less current maturities....................... (36,194) (23,817) (13,585)
-------- -------- ---------
Long-term debt, less current maturities... $555,660 $200,191 $213,594
======== ======== =========
</TABLE>
The 5 percent Subordinated Note, which had an original face value of $400.0
million is recorded net of discount at an effective annual interest rate of
approximately 13 percent and provides that:
(a) The stated interest is payable each March 1.
F-21
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(b) The regularly scheduled payments are $20.0 million in 1998 through
2006. Any unpaid amounts are due in 2007.
Non-recourse Citizens Power debt is payable in installments through 2016.
The weighted average interest rate is 9 percent.
Citizens Power obligations' scheduled debt payments to the former owners of
Citizens Lehman Power are $51.0 million in 2000 and $7.0 million in 2001 and
2002. Interest is due quarterly at LIBOR plus 18 basis points on $30.0 million
of the debt. The remaining $35.0 million is non-interest bearing.
Capital lease obligations are payable in installments through 2009 with a
weighted average effective interest rate of 6 percent at March 31, 1998.
Peabody Resources entered into a project finance facility to finance the
construction of its interest in the Bengalla mine. The facility expires in
2010 and the maximum drawdown is $131.3 million Australian dollars (U.S. $88.2
million). In accordance with the facility agreement, the loan will be repaid
from the proceeds of sales from Bengalla. During 1998, there were borrowings
of $14.6 million against the facility with an effective annual interest rate
of approximately 7 percent. Other, principally notes payable, is due in
installments through 2018 with a weighted average effective interest rate of 7
percent.
Peabody Resources has a medium term note facility denominated as $200.0
million Australian dollars (U.S. $134.4 million) with an effective interest
rate of 6 percent. There were no borrowings against the facility during fiscal
year 1998.
Scheduled debt repayments for the next five fiscal years ending on March 31
are $36.6 million in 1999, $86.0 million in 2000, $44.1 million in 2001, $45.8
million in 2002 and $41.2 million in 2003.
The amount of interest paid was $44.6 million for the year ended March 31,
1998, $18.0 million for the six months ended March 31, 1997 and $20.8 million
and $21.0 million for the years ended September 30, 1996 and 1995,
respectively.
(10) WORKERS' COMPENSATION OBLIGATIONS
The workers' compensation obligations consisted of the following (dollars in
thousands):
<TABLE>
<CAPTION>
MARCH 31 MARCH 31 SEPTEMBER 30
1998 1997 1996
-------- -------- ------------
<S> <C> <C> <C>
Occupational disease costs..................... $214,091 $234,081 $243,438
Traumatic injury claims........................ 84,946 78,729 78,510
State assessment taxes......................... 1,785 9,336 10,506
-------- -------- --------
Total obligations............................ 300,822 322,146 332,454
Less current portion........................... (39,927) (38,145) (40,835)
-------- -------- --------
Noncurrent obligations....................... $260,895 $284,001 $291,619
======== ======== ========
</TABLE>
Workers' compensation obligations consist of amounts accrued for loss
sensitive insurance premiums, uninsured claims, and related taxes and
assessments under traumatic injury and occupational disease workers'
compensation programs. As of March 31, 1998, the Company had outstanding $57.5
million in letters of credit and $74.3 million in surety bonds to secure
workers' compensation obligations.
Certain subsidiaries of the Company are subject to the Federal Coal Mine
Health & Safety Act of 1969, and the related workers' compensation laws in the
states in which they operate. These laws require the subsidiaries to pay
benefits for occupational disease resulting from coal workers' pneumoconiosis
("CWP"). The provision for CWP claims (including projected claims costs and
interest discount accruals) was a benefit of $9.4 million
F-22
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
for the year ended March 31, 1998, $3.8 million for the six months ended March
31, 1997 and $10.3 million and $24.9 million for the years ended September 30,
1996 and 1995, respectively. The benefit is primarily attributable to
favorable loss experience factors and a change in certain actuarial
assumptions.
The liability for occupational disease claims represents the present value
of known claims and an actuarially-determined estimate of future claims that
will be awarded to current and former employees. The projections at March 31,
1998 and 1997 and September 30, 1996 were based on a 7.5 percent per annum
interest discount rate and a 4 percent estimate for the annual rate of
inflation. Traumatic injury workers' compensation obligations are estimated
from both case reserves and actuarial determinations of historical trends,
discounted at approximately 7.5 percent per annum at March 31, 1998 and 1997
and September 30, 1996.
For Peabody Resources, workers' compensation funds are either separately
administered industry funds or externally insured. Premiums are paid as a
percentage of salary and labor costs. The administration of claims and the
liability for payment of workers' compensation is the responsibility of the
industry fund or the insurance company.
(11) PENSION AND SAVINGS PLANS
Peabody Holding Company sponsors a defined benefit pension plan covering
substantially all salaried U.S. employees (the "Peabody Plan"). A Peabody
Holding Company subsidiary also has a defined benefit pension plan covering
eligible employees who are represented by the UMWA under the Western Surface
Agreement of 1996 (the "Western Plan"). Powder River sponsors a defined
benefit pension plan for its salaried employees (the "Powder River Plan"). Lee
Ranch sponsors defined benefit pension plans, one which covers substantially
all Lee Ranch hourly employees (the "Lee Ranch Hourly Plan") and one which
covers substantially all Lee Ranch salaried employees (the "Lee Ranch Salaried
Plan"). Peabody Resources participates in a number of superannuation funds and
contributes on various percentages of employee compensation. Members of the
funds may voluntarily contribute additional amounts to their accounts. Fund
members are variously entitled to benefits on retirement, withdrawal,
disability or death.
Benefits under the Peabody Plan, the Powder River Plan and the Lee Ranch
Salaried Plan are computed based on the number of years of service and
compensation during certain years. Benefits under the Western Plan are
computed based on the number of years of service with the subsidiary or other
specified employers. Benefits under the Lee Ranch Hourly Plan are computed
based on job classification and years of service.
Annual contributions to the plans are made as determined by consulting
actuaries based upon the Employment Retirement Income Security Act of 1974
minimum funding standard. Assets of the plans are primarily invested in
various marketable securities, including U.S. Government bonds, corporate
obligations and listed stocks. The funds are part of a master trust
arrangement managed by the Company.
Net periodic pension costs recognized as expense for the Peabody Plan, the
Powder River Plan, the Western Plan and the Lee Ranch Salaried and Hourly
Plans was $7.7 million for the year ended March 31, 1998, $4.4 million for the
six months ended March 31, 1997 and $8.6 million and $9.2 million for the
years ended September 30, 1996 and 1995, respectively. Net periodic pension
costs included the following components (dollars in thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31 ENDED MARCH 31 SEPTEMBER 30 SEPTEMBER 30
1998 1997 1996 1995
---------- -------------- ------------ ------------
<S> <C> <C> <C> <C>
Service cost for benefits
earned................... $ 10,077 $ 5,163 $ 9,978 $ 9,533
Interest cost on projected
benefit obligation....... 32,417 16,190 29,908 28,707
Actual return on plan
assets................... (51,350) (7,969) (29,335) (43,862)
Other amortizations and
deferrals................ 16,589 (8,948) (1,950) 14,796
-------- ------- -------- --------
Net periodic pension
costs.................. $ 7,733 $ 4,436 $ 8,601 $ 9,174
======== ======= ======== ========
</TABLE>
F-23
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
During 1998 and 1996, an early retirement and reduction in force program was
offered to certain employees as part of a company-wide restructuring and cost
reduction effort. As a result of the special termination benefits offered, a
charge of $0.6 million and $15.3 million, respectively, was recognized in
accordance with Statement of Financial Accounting Standards No. 88,
"Employers' Accounting for Settlements and Curtailments of Defined Benefit
Pension Plans and for Termination Benefits."
The following table sets forth the actuarial present value of benefit
obligations and the funded status of the Peabody Plan, the Powder River Plan,
the Western Plan and the Lee Ranch Salaried and Hourly Plans and amounts
recognized in the Combined Balance Sheets (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, 1998 MARCH 31, 1997 SEPTEMBER 30, 1996
------------------- ------------------- -------------------
ASSETS ABO ASSETS ABO ASSETS ABO
EXCEED EXCEED EXCEED EXCEED EXCEED EXCEED
ABO ASSETS ABO ASSETS ABO ASSETS
--------- -------- --------- -------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
Vested benefits......... $ 345,976 $ 55,623 $ 341,067 $ 47,795 $ 335,313 $ 44,757
Nonvested benefits...... 4,846 11,827 14,264 11,019 14,177 10,177
--------- -------- --------- -------- --------- --------
$ 350,822 $ 67,450 $ 355,331 $ 58,814 $ 349,490 $ 54,934
========= ======== ========= ======== ========= ========
Projected benefit
obligation for service
rendered to date....... $ 372,255 $ 78,205 $ 379,168 $ 69,317 $ 376,766 $ 66,391
Plan assets at fair
value.................. (408,027) (60,642) (366,837) (47,922) (358,812) (44,497)
--------- -------- --------- -------- --------- --------
Plan assets (in excess
of) less than projected
benefit obligation..... (35,772) 17,563 12,331 21,395 17,954 21,894
Unrecognized net gain
(loss)................. 13,891 (1,426) (22,454) (6,957) (29,131) (8,738)
Unrecognized prior
service cost........... 13,056 (6,654) 829 (7,243) 894 (7,537)
Adjustment required to
recognize additional
minimum liability...... -- 5,812 -- 7,575 -- 8,629
--------- -------- --------- -------- --------- --------
Accrued (prepaid)
pension liability
(asset)................ $ (8,825) $ 15,295 $ (9,294) $ 14,770 $ (10,283) $ 14,248
========= ======== ========= ======== ========= ========
</TABLE>
The provisions of Statement of Financial Accounting Standards No. 87,
"Employers' Accounting for Pensions," requires the recognition of an
additional minimum liability and related intangible asset to the extent that
accumulated benefits exceed plan assets. At March 31, 1998 and 1997 and
September 30, 1996, the Company recorded adjustments of $5.8 million, $7.6
million and $8.6 million, respectively, which were required to reflect the
Company's minimum liability. An intangible asset was recorded in the same
amount.
Peabody Holding Company and Gold Fields sponsor three separate unfunded
supplemental retirement plans to provide senior management with benefits in
excess of limits under the federal tax law and increased benefits to reflect a
service adjustment factor. The following table sets forth the projected
benefit obligation and the recorded liability (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31 MARCH 31 SEPTEMBER 30
1998 1997 1996
-------- -------- ------------
<S> <C> <C> <C>
Projected benefit obligation..................... $13,390 $13,162 $11,275
Recorded liability............................... 12,411 10,369 8,314
</TABLE>
The recorded liability at March 31, 1998 and 1997 and September 30, 1996
includes the recognition of $3.4 million, $2.5 million and $0.7 million,
respectively, in additional minimum liability. Pension expense for these plans
was $1.4 million for the year ended March 31, 1998, $0.6 million for the six
months ended March 31, 1997 and $1.5 million and $0.8 million for the years
ended September 30, 1996 and 1995, respectively.
F-24
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The assumptions used to determine the above projected benefit obligation at
the end of each fiscal period were as follows:
<TABLE>
<CAPTION>
MARCH 31 MARCH 31 SEPTEMBER 30
1998 1997 1996
-------- -------- ------------
<S> <C> <C> <C>
Discount rate.................................... 7.5% 7.5% 7.5%
Rate of compensation increase.................... 3.75% 3.75% 4.25%
Expected rate of return on plan assets........... 9.0% 9.0% 9.0%
</TABLE>
Certain subsidiaries make contributions to multiemployer pension plans which
provide defined benefits to substantially all hourly coal production workers
represented by the UMWA other than those covered by the Western Plan. Benefits
under the UMWA plans are computed based on service with the subsidiaries or
other signatory employers. The amounts contributed to the plans and included
in operating costs were $4.9 million for the year ended March 31, 1998, $2.4
million for the six months ended March 31, 1997 and $5.0 million and $5.5
million for the years ended September 30, 1996 and 1995, respectively.
The Company sponsors savings and long-term investment plans for eligible
salaried U.S. employees. The Company matches 50 percent of voluntary
contributions up to a maximum matching contribution between 3 and 4 percent of
a participant's salary. The expense of these plans was $4.2 million for the
year ended March 31, 1998, $2.1 million for the six months ended March 31,
1997 and $4.7 million and $4.8 million for the years ended September 30, 1996
and 1995, respectively.
The amount contributed and expensed by Peabody Resources to superannuation
funds was $2.9 million for the year ended March 31, 1998, $1.5 million for the
six months ended March 31, 1997 and $2.8 million and $1.8 million for the
years ended September 30, 1996 and 1995, respectively.
(12) POSTRETIREMENT HEALTH CARE AND LIFE INSURANCE BENEFITS
The Company currently provides health care and life insurance benefits to
qualifying salaried and hourly retirees and their dependents from defined
benefit plans established by the Company. Employees of Gold Fields are only
eligible for life insurance benefits as provided by the Company. Plan coverage
for the health and life insurance benefits is provided to future hourly
retirees in accordance with the applicable labor agreement. The Company
accounts for postretirement benefits using the accrual method.
Retirees of Peabody Resources are provided similar benefits by plans
sponsored by the Australian government. As a result, no liability is recorded
for this plan.
Net periodic postretirement benefits costs included the following components
(dollars in thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31 ENDED MARCH 31 SEPTEMBER 30 SEPTEMBER 30
1998 1997 1996 1995
---------- -------------- ------------ ------------
<S> <C> <C> <C> <C>
Service cost for benefits
earned................... $ 6,569 $ 3,540 $ 12,094 $10,605
Interest cost on
accumulated
postretirement benefit
obligation............... 69,614 34,068 63,806 63,847
Prior service cost
amortization............. (10,071) (9,625) (20,855) (9,138)
-------- ------- -------- -------
Net periodic
postretirement benefit
costs.................. $ 66,112 $27,983 $ 55,045 $65,314
======== ======= ======== =======
</TABLE>
F-25
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The following table sets forth the plans' combined funded status reconciled
with the amounts shown in the Combined Balance Sheets (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31 MARCH 31 SEPTEMBER 30
1998 1997 1996
-------- -------- ------------
<S> <C> <C> <C>
Accumulated postretirement benefit obligation
("APBO"):
Retirees................................... $569,531 $563,528 $518,956
Fully eligible active plan participants.... 299,969 275,571 99,096
Other active plan participants............. 110,321 106,781 292,815
-------- -------- --------
979,821 945,880 910,867
Unrecognized net loss...................... (70,704) (64,385) (47,659)
Unrecognized prior service cost............ 16,057 26,132 39,117
-------- -------- --------
Liability included on the balance sheet.. 925,174 907,627 902,325
Less current portion....................... (48,930) (46,675) (48,700)
-------- -------- --------
Noncurrent accrued postretirement benefit
costs................................... $876,244 $860,952 $853,625
======== ======== ========
</TABLE>
The assumptions used to determine the APBO at the end of each fiscal period
were as follows:
<TABLE>
<CAPTION>
MARCH 31, 1998 MARCH 31, 1997 SEPTEMBER 30, 1996
----------------- ----------------- ------------------
<S> <C> <C> <C>
Discount rate........... 7.5% 7.5% 7.5%
Salary increase rate for
life insurance
benefit................ 3.75% 3.75% 4.25%
Health care trend rate:
Pre-65................ 7.6% down to 8.0% down to 8.6% down to
5.0% over 5 years 5.0% over 6 years 5.0% over 7 years
Post-65............... 6.5% down to 6.7% down to 7.0% down to
5.0% over 5 years 5.0% over 6 years 5.0% over 7 years
Medicare.............. 5.9% down to 6.0% down to 6.25% down to
5.0% over 5 years 5.0% over 6 years 5.0% over 7 years
</TABLE>
The health care cost trend rate assumption has a significant effect on the
amounts reported. Increasing the assumed health care cost trend rates one
percentage point in each year would increase the accumulated postretirement
benefit obligation as of March 31, 1998 by $124.6 million. The effect of this
change on the aggregate of the service cost and interest cost components of
net periodic postretirement benefit costs for the year ended March 31, 1998
would be an increase of $11.6 million.
Retirees formerly employed by certain subsidiaries and their predecessors,
who were members of the UMWA, last worked before January 1, 1976 and were
receiving health benefits on July 20, 1992 from a UMWA multiemployer plan,
receive health benefits provided by the Combined Fund, a fund created by the
"Coal Industry Retiree Health Benefit Act of 1992" (the "Coal Act"). The Coal
Act requires former employers (including certain subsidiaries of the Company)
and their affiliates to contribute to the Combined Fund according to a
formula. In addition, certain surplus UMWA pension fund monies and Federal
Abandoned Mine Lands program funds will be used to pay benefits to orphaned
retirees.
The Company has recorded an actuarially determined liability representing
the amounts anticipated to be due for the UMWA Combined Fund. The "Obligation
to Industry Fund" reflected in the Combined Balance Sheets at March 31, 1998
and 1997 and September 30, 1996 was $97.0 million, $123.8 million and $137.7
million, respectively. The current portion related to this obligation
reflected in "Accounts payable and accrued expenses" in the Combined Balance
Sheets at March 31, 1998 and 1997 and September 30, 1996 was $8.8 million,
$9.7 million and $8.9 million, respectively
F-26
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
A benefit of $15.9 million was recognized for the year ended March 31, 1998
which included amortization of an actuarial gain of $21.4 million, net of
interest discount accrual of $5.5 million. A benefit of $8.7 million was
recognized for the six months ended March 31, 1997 which included amortization
of an actuarial gain of $11.7 million, net of interest discount accrual of
$3.0 million. A benefit of $15.4 million was recognized for the year ended
September 30, 1996 which included amortization of an actuarial gain of $23.3
million, net of interest discount accrual of $7.9 million. A charge of $14.0
million was recognized for the year ended September 30, 1995 for the interest
discount accrual.
The Coal Act also established a multiemployer benefit plan ("1992 Plan")
which will provide medical and death benefits to persons who are not eligible
for the Combined Fund, whose employer and any affiliates are no longer in
business and who retired prior to October 1, 1994. A prior labor agreement
established the 1993 UMWA Benefit Trust ("1993 Plan") to provide defined
contribution health benefits for retired miners not covered by the Coal Act
and whose employer is no longer in business. The 1992 Plan and the 1993 Plan
qualify under Statement of Financial Accounting Standards No. 106 as
multiemployer benefit plans which allows the Company to continue to recognize
expense as the contributions are made. The amounts expensed related to these
funds were $4.5 million for the year ended March 31, 1998, $3.7 million for
the six months ended March 31, 1997 and $1.5 million and $2.2 million for the
years ended September 30, 1996 and 1995, respectively.
Pursuant to the provisions of the Coal Act and the 1992 Plan, the Company is
required to provide security in an amount equal to three times the cost of
providing health care benefits for one year for all individuals receiving
benefits from the 1992 Plan who are attributable to the Company, plus all
individuals receiving benefits from an individual employer plan maintained by
the Company who are entitled to receive such benefits. In accordance with the
Coal Act and the 1992 Plan, the Company has outstanding letters of credit at
March 31, 1998 and 1997 and September 30, 1996 of $91.2 million, $94.1 million
and $94.1 million, respectively. The letters of credit represent security for
a portion of the postretirement liability included on the balance sheet.
(13) RELATED PARTY TRANSACTIONS
In August 1990, the Company borrowed $284.0 million from Hanson. The funds
were used to prepay certain senior indebtedness. The note payable to Hanson
carried interest at the rate of 10 percent per annum through September 1994
and 8.5 percent per annum through September 2000. This intercompany note was
contributed by Hanson to capital during 1996. The amount of interest paid on
the note was $18.1 million and $24.1 million for the years ended September 30,
1996 and 1995, respectively.
The "Receivables from affiliates, net" reflected in the Combined Balance
Sheets represents amounts due to/from The Energy Group and other affiliates.
No interest is earned by the Company on the balance with The Energy Group.
A subsidiary of the Company has purchased coal from Black Beauty Coal
Company, a 43.3 percent owned partnership. The subsidiary purchased 126,601
tons of coal at a cost of $3.0 million for the year ended March 31, 1998,
37,645 tons of coal at a cost of $1.0 million for the six months ended March
31, 1997, 55,707 tons of coal at a cost of $1.5 million for the year ended
September 30, 1996 and 238,000 tons of coal at a cost of $4.9 million for the
year ended September 30, 1995.
In 1998, the Company paid a $65.1 million dividend and provided a $141.0
million loan to Peabody Investments, Inc. with a five year term at a 5 percent
interest rate.
During the six months ended March 31, 1997, the Company received a capital
contribution of $269.2 million from The Energy Group. In 1995, the Company
received a capital contribution of $206.4 million from Hanson and paid a
capital dividend of $274.6 million to Hanson.
F-27
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(14) CONTRACT RESTRUCTURINGS
During 1998, a subsidiary of the Company agreed to terminate a long-term
coal supply agreement ("CSA") in exchange for payments from a customer
totaling $49.3 million, which resulted in a gain of $49.3 million.
During 1997, a subsidiary of the Company sold a CSA to an unrelated third
party in exchange for an initial $11.6 million payment, and nominal future
consideration, which resulted in a gain of $11.6 million.
During 1996, a subsidiary of the Company agreed to terminate a CSA in
exchange for a $22.0 million payment from a customer which resulted in a gain
of $22.0 million.
During 1995, a subsidiary of the Company agreed to terminate a CSA in
exchange for a $25.5 million payment from a customer. This transaction
resulted in a gain of $23.9 million after deducting the cost of terminating a
related coal purchase agreement as well as certain other costs related to the
transaction.
These gains are included in "Other revenue" in the Statements of Combined
Operations.
(15) FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK
The Company owns a 30 percent interest in a partnership that leases a coal
export terminal from the Peninsula Ports Authority of Virginia under a 30-year
lease that permits the partnership to purchase the terminal at the end of the
lease term for a nominal amount. The partners have severally (but not jointly)
agreed to make payments which in the aggregate provide the partnership with
sufficient funds to pay rents and to cover the principal and interest payments
on the floating-rate industrial revenue bonds issued by the Peninsula Ports
Authority. The Company has provided letters of credit totaling $42.7 million
as security that it will make such payments. The total face value of the bonds
outstanding is $106.2 million. The Company guarantees 63.2 percent of the
Series (A-D) bonds which have a total face value of $63.1 million. The
effective interest rate was 2.4 percent as of March 31, 1998. The weighted
average interest rate was 3.6 percent for the year ended March 31, 1998, 3.4
percent for the six months ended March 31, 1997 and 3.4 and 3.7 percent for
the years ended September 30, 1996 and 1995, respectively.
As of March 31, 1998, the Company was contingently liable in the form of a
guarantee of indebtedness owed by partnership investments. The Company's
portion of the liability, should the other parties fail to perform, is $105.6
million. The Company believes it is remote that it will be required to satisfy
this guarantee.
Peabody Resources uses forward currency contracts to manage its exposure
against foreign currency fluctuations on sales denominated in U.S. dollars.
Realized gains and losses on these contracts are recognized in
the same period as the hedged transactions. The Company had unrealized gains
and (losses) recorded of ($17.3 million) for the year ended March 31, 1998,
$11.7 million for the six months ended March 31, 1997 and $14.2 million and
$2.7 million for the years ended September 30, 1996 and 1995, respectively,
related to the forward currency contracts. The Company had forward currency
contracts outstanding at March 31, 1998, March 31, 1997, and September 30,
1996 of $244.0 million, $110.0 million and $123.0 million, respectively.
In the normal course of business, the Company is a party to financial
instruments with off-balance-sheet risk, such as bank letters of credit,
performance bonds and other guarantees, which are not reflected in the
accompanying balance sheets. Such financial instruments are to be valued based
on the amount of exposure under the instrument and the likelihood of
performance being required. In the Company's past experience, virtually no
claims have been made against these financial instruments. Management does not
expect any material losses to result from these off-balance-sheet instruments
and, therefore, is of the opinion that the fair value of these instruments is
zero.
F-28
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(16) FAIR VALUE OF FINANCIAL INSTRUMENTS
Statement of Financial Accounting Standards No. 107 "Disclosures About Fair
Value of Financial Instruments", defines the fair value of a financial
instrument as the amount at which the instrument could be exchanged in a
current transaction between willing parties, other than in a forced or
liquidation sale.
The following methods and assumptions were used by the Company in estimating
its fair value disclosures for financial instruments:
Cash and cash equivalents, Accounts receivable, Receivables from
affiliates, and Accounts payable and accrued expenses have a carrying value
which approximate fair value due to the short maturity or the financial
nature of these instruments.
Notes payable fair value estimates are based on estimated borrowing rates
to discount the cash flows to their present value. The 5 percent
Subordinated Note carrying amount is net of unamortized note discount.
Other noncurrent liabilities include a deferred purchase obligation
related to the prior purchase of a mine facility. The fair value estimate
is based on the same assumption as notes payable.
Investments and other assets include certain notes receivable with
customers at various interest rates. Notes receivable fair value estimates
are based on estimated borrowing rates to discount the cash flows to their
present values.
The carrying amounts and estimated fair values of the Company's financial
instruments are summarized as follows (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, 1998 MARCH 31, 1997 SEPTEMBER 30, 1996
------------------- ------------------- -------------------
CARRYING ESTIMATED CARRYING ESTIMATED CARRYING ESTIMATED
AMOUNT FAIR VALUE AMOUNT FAIR VALUE AMOUNT FAIR VALUE
-------- ---------- -------- ---------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
Non-recourse Citizens
Power debt............. $293,922 $293,922 $ -- $ -- $ -- $ --
5% Subordinated Note.... 192,627 256,914 201,632 273,461 206,095 288,619
Notes receivable........ 182,671 200,923 195,414 198,245 209,212 214,914
Note receivable from af-
filiate................ 141,000 137,161 -- -- -- --
Citizens Power obliga-
tions.................. 65,000 53,937 -- -- -- --
Deferred purchase obli-
gation................. 33,443 35,309 36,322 38,451 37,678 40,050
Project finance facili-
ty..................... 14,632 11,615 -- -- -- --
Other notes payable..... 4,447 4,676 8,775 8,938 8,774 8,898
Commercial paper debt
facility............... 10,080 10,080 43,894 43,894 225,653 225,653
Revolving line of cred-
it..................... -- -- 50,000 50,000 -- --
Customer contribution
payable................ -- -- 2,823 2,823 16,056 14,952
</TABLE>
The fair value of the financial instruments related to trading and price
risk management activities as of March 31, 1998, which include energy
commodities and average fair value of those instruments held during the year
are set forth below (dollars in thousands):
<TABLE>
<CAPTION>
FAIR VALUE AS OF AVERAGE FAIR VALUE FOR THE
MARCH 31, 1998 YEAR ENDED MARCH 31, 1998
---------------------- -----------------------------
ASSETS LIABILITIES ASSETS LIABILITIES
---------- ----------- ------------- ---------------
<S> <C> <C> <C> <C>
Forward contracts.......... $1,288,045 $942,455 $ 886,894 $ 593,030
Future contracts........... 761 102 553 162
Option contracts........... 3,043 2,120 2,429 3,128
Swap agreements............ 530 -- 592 --
---------- -------- ------------- -------------
Total.................... $1,292,379 $944,677 $ 890,468 $ 596,320
========== ======== ============= =============
</TABLE>
F-29
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The approximate gross contract or notional amounts of financial instruments
as of March 31, 1998 are as follows (dollars in thousands):
<TABLE>
<CAPTION>
ASSETS LIABILITIES
---------- -----------
<S> <C> <C>
Forward contracts........................................ $1,889,040 $1,265,840
Future contracts......................................... 6,541 1,056
Option contracts......................................... 3,607 3,448
Swap agreements.......................................... 5,330 --
</TABLE>
The net gain arising from trading and price risk management activities for
the period from May 19, 1997 to March 31, 1998 was $26.4 million. The change
in unrealized gain from trading and price risk management activities for the
period May 19, 1997 to March 31, 1998 was $12.4 million.
(17) COMMITMENTS AND CONTINGENCIES
Environmental claims have been asserted against the Company at 17 sites in
the U.S. with one being settled in the current year. Some of these claims are
based on the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, and under similar state statutes. The majority of
these sites are related to activities of a former subsidiary of the Company.
The Company's policy is to accrue environmental cleanup related costs of a
noncapital nature when those costs are believed to be probable and can be
reasonably estimated. The quantification of environmental exposures requires
an assessment of many factors, including changing laws and regulations,
advancements in environmental technologies, the quality of information
available related to specific sites, the assessment stage of each site
investigation, preliminary findings, and the length of time involved in
remediation or settlement. For certain sites, the Company also assesses the
financial capability of other potentially responsible parties and, where
allegations are based on tentative findings, the reasonableness of the
Company's apportionment. The Company has not anticipated any recoveries from
insurance carriers or other potentially responsible third parties in its
Combined Balance Sheets. The liabilities for environmental cleanup related
costs recorded in the Combined Balance Sheets at March 31, 1998 and 1997 and
September 30, 1996 were $68.6 million, $73.6 million and $74.9 million,
respectively. These amounts represent those costs which the Company believes
are probable and reasonably estimable. In the event that future remediation
expenditures are in excess of amounts accrued, management does not anticipate
that they will have a material adverse effect on the combined financial
position of the Company.
In addition, the Company at times becomes a party to claims, lawsuits,
arbitration proceedings and administrative procedures in the ordinary course
of business. Management believes that the ultimate resolution of pending or
threatened proceedings will not have a material effect on the financial
position of the Company.
In December 1994, a subsidiary of the Company renegotiated a CSA and agreed
to reimburse a customer for the construction of replacement equipment to allow
the customer to efficiently burn coal. Payments will not exceed $27.5 million
of which $2.8 million, $13.3 million, $9.8 million and $1.6 million was paid
during the year ended March 31, 1998, the six months ended March 31, 1997, and
during the years ended September 30, 1996 and 1995, respectively.
At March 31, 1998, purchase commitments for capital expenditures were
approximately $70.1 million.
(18) IMPACT OF YEAR 2000--UNAUDITED
Some of the Company's older computer programs were written using two digits
rather than four to define the applicable year. In addition, the Company uses
equipment purchased from third parties which utilizes computer technology to
monitor or control certain operational procedures and other activities. As a
result, those computer programs have time-sensitive software that recognize a
date using "00" as the 1900 rather than the
F-30
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
year 2000. This could cause a system failure or miscalculations causing
disruptions of operations, including, among other things, a temporary
inability to process transactions, send invoices, or engage in similar normal
business activities.
The Company has completed an assessment and will have to modify or replace
portions of its software so that its computer systems will function properly
with respect to dates in the year 2000 and thereafter. The total Year 2000
project cost is estimated at approximately $6.5 million, which includes $1.4
million for the purchase of new software and hardware that will be capitalized
and $5.1 million that will be expensed as incurred. To date, the Company has
incurred and expensed approximately $0.4 million, primarily for assessment of
the Year 2000 issue and the development of a modification plan.
The project is estimated to be completed not later than June 30, 1999, which
is prior to any anticipated impact on its operating systems. The Company
believes that with modifications to existing software and conversions to new
software, the Year 2000 Issue will not present significant operational
problems for its computer systems. However, if such modifications and
conversions are not made, or are not completed timely, the Year 2000 Issue
could have a material impact on the operations of the Company.
The cost of the project and the date on which the Company believes it will
complete the Year 2000 modifications are based on management's best estimates,
which were derived utilizing numerous assumptions of future events, however,
there can be no guarantee that these estimates will be achieved.
(19) SUBSEQUENT EVENTS--UNAUDITED
Dividend Declared and Paid
On April 27, 1998, Peabody Australia Ltd. and Darex Capital, Inc. declared
and paid dividends totaling $50.0 million Australian dollars (U.S. $32.3
million) to Energy Holdings (No.1) Limited, a subsidiary of The Energy Group.
On May 15, 1998, Peabody Holding Company declared a dividend totaling $141.0
million to Peabody Investments, Inc., liquidating a loan described in note 13.
The Energy Group Purchase
Effective May 19, 1998, the Company was acquired by P&L Coal Holdings
Corporation, which at the time was wholly owned by Lehman Merchant Banking
Partners II, an investment fund affiliated with Lehman Brothers Inc. The
transaction was part of the sale of The Energy Group to Texas Utilities
Company.
The Company may conduct certain asset sales in order to generate cash to
reduce debt associated with the purchase. In accordance with the purchase
agreement, certain U.S. subsidiaries of the Company will become guarantors of
debt associated with the purchase.
F-31
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The following historical financial information is provided for such
guarantor/non-guarantor subsidiaries.
P & L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED OPERATIONS
FOR THE YEAR ENDED MARCH 31, 1998
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Total revenues.......................... $1,993,969 $250,493 $2,244,462
Costs and expenses:
Operating costs and expenses.......... 1,552,176 158,625 1,710,801
Depreciation, depletion and
amortization......................... 169,623 33,017 202,640
Selling and administrative expenses... 78,249 5,391 83,640
Net gain on property and equipment
disposals............................ (22,079) 273 (21,806)
Interest expense...................... (30,684) (2,951) (33,635)
Interest income....................... 13,984 993 14,977
---------- -------- ----------
Income before income taxes.............. 199,300 51,229 $ 250,529
Income tax provision.................. 74,649 15,544 90,193
---------- -------- ----------
Net income.............................. $ 124,651 $ 35,685 $ 160,336
========== ======== ==========
</TABLE>
P & L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED OPERATIONS
FOR THE SIX MONTHS ENDED MARCH 31, 1997
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Total revenues.......................... $943,554 $120,539 $1,064,093
Costs and expenses:
Operating costs and expenses.......... 744,079 78,859 822,938
Depreciation, depletion and
amortization......................... 84,094 17,636 101,730
Selling and administrative expenses... 39,623 1,798 41,421
Net gain on property and equipment
disposals............................ (4,023) (68) (4,091)
Interest expense...................... (17,699) (7,001) (24,700)
Interest income....................... 4,947 3,643 8,590
-------- -------- ----------
Income before income taxes.............. 67,029 18,956 85,985
Income tax provision.................. 19,379 8,174 27,553
-------- -------- ----------
Net income.............................. $ 47,650 $ 10,782 $ 58,432
======== ======== ==========
</TABLE>
F-32
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
P & L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Total revenues.......................... $1,966,171 $227,415 $2,193,586
Costs and expenses:
Operating costs and expenses.......... 1,550,141 143,402 1,693,543
Depreciation, depletion and
amortization......................... 165,256 32,597 197,853
Selling and administrative expenses... 71,722 3,977 75,699
Impairment of long-lived assets....... 890,829 -- 890,829
Net gain on property and equipment
disposals............................ (11,942) (1,100) (13,042)
Interest expense...................... (48,587) (13,939) (62,526)
Interest income....................... 4,858 6,497 11,355
---------- -------- ----------
Income (loss) before income taxes....... (743,564) 41,097 (702,467)
Income tax provision (benefit)........ (268,295) 12,110 (256,185)
---------- -------- ----------
Net income (loss)....................... $ (475,269) $ 28,987 $ (446,282)
========== ======== ==========
</TABLE>
P & L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1995
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Total revenues.......................... $1,982,536 $193,300 $2,175,836
Costs and expenses:
Operating costs and expenses.......... 1,547,709 123,724 1,671,433
Depreciation, depletion and
amortization......................... 161,774 28,556 190,330
Selling and administrative expenses... 77,597 3,792 81,389
Net gain on property and equipment
disposals............................ (12,226) (702) (12,928)
Interest expense...................... (54,272) (4,083) (58,355)
Interest income....................... 3,465 2,017 5,482
---------- -------- ----------
Income before income taxes.............. 156,875 35,864 192,739
Income tax provision.................. 77,846 14,506 92,352
---------- -------- ----------
Net income.............................. $ 79,029 $ 21,358 $ 100,387
========== ======== ==========
</TABLE>
F-33
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
P & L COAL GROUP
SUPPLEMENTAL CONDENSED COMBINED BALANCE SHEETS
MARCH 31, 1998
<TABLE>
<CAPTION>
NON-
GUARANTOR GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------ -----------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents............. $ 83,812 $ 13,009 $ 96,821
Accounts receivable, net.............. 211,383 115,157 326,540
Receivables from affiliates, net...... 142,961 (30,198) 112,763
Inventories........................... 219,598 45,225 264,823
Assets from trading and price risk
management activities................ -- 1,295,169 1,295,169
Prepaid expenses and deferred taxes... 21,483 8,553 30,036
----------- ----------- -----------
679,237 1,446,915 2,126,152
Property, plant, equipment and mine de-
velopment--at cost..................... 4,649,463 589,476 5,238,939
Less accumulated depreciation, depletion
and amortization....................... (1,359,442) (205,955) (1,565,397)
----------- ----------- -----------
3,290,021 383,521 3,673,542
Investments and other assets............ 475,725 79,815 555,540
----------- ----------- -----------
Total assets............................ $ 4,444,983 $ 1,910,251 $ 6,355,234
=========== =========== ===========
LIABILITIES AND INVESTED CAPITAL
Current liabilities
Short-term borrowings and current
maturities of long-term debt......... $ 21,844 $ 24,772 $ 46,616
Income taxes payable.................. (5,915) 8,303 2,388
Liabilities from trading and price
risk management activities........... -- 947,467 947,467
Accounts payable and accrued ex-
penses............................... 432,966 160,744 593,710
----------- ----------- -----------
448,895 1,141,286 1,590,181
Long-term debt, less current maturi-
ties................................... 241,921 313,739 555,660
Deferred income taxes................... 591,114 70,458 661,572
Other noncurrent liabilities............ 1,839,416 20,563 1,859,979
Invested capital........................ 1,323,637 364,205 1,687,842
----------- ----------- -----------
Total liabilities and invested capi-
tal................................ $ 4,444,983 $ 1,910,251 $ 6,355,234
=========== =========== ===========
</TABLE>
F-34
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
P&L COAL GROUP
SUPPLEMENTAL CONDENSED COMBINED BALANCE SHEETS
MARCH 31, 1997
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- -----------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents............ $ 274,676 $ 6,433 $ 281,109
Accounts receivable, net............. 197,106 23,850 220,956
Receivables from affiliates, net..... 1,781 4,101 5,882
Inventories.......................... 210,062 45,049 255,111
Prepaid expenses and deferred taxes.. 21,809 5,997 27,806
----------- --------- -----------
705,434 85,430 790,864
Property, plant, equipment and mine
development--at cost.................. 4,661,365 635,121 5,296,486
Less accumulated depreciation,
depletion and amortization............ (1,293,549) (214,146) (1,507,695)
----------- --------- -----------
3,367,816 420,975 3,788,791
Investments and other assets........... 446,130 27 446,157
----------- --------- -----------
Total assets......................... $ 4,519,380 $ 506,432 $ 5,025,812
=========== ========= ===========
LIABILITIES AND INVESTED CAPITAL
Current liabilities
Short-term borrowings and current
maturities of long-term debt........ $ 72,387 $ 49,145 $ 121,532
Income taxes payable................. 7,946 8,142 16,088
Accounts payable and accrued
expenses............................ 432,848 53,320 486,168
----------- --------- -----------
513,181 110,607 623,788
Long-term debt, less current
maturities............................ 187,593 12,598 200,191
Deferred income taxes.................. 501,148 88,132 589,280
Other noncurrent liabilities........... 1,923,992 11,775 1,935,767
Invested capital....................... 1,393,466 283,320 1,676,786
----------- --------- -----------
Total liabilities and invested
capital............................. $ 4,519,380 $ 506,432 $ 5,025,812
=========== ========= ===========
</TABLE>
F-35
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
P & L COAL GROUP
SUPPLEMENTAL CONDENSED COMBINED BALANCE SHEETS
SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- -----------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents............ $ 2,338 $ 179,195 $ 181,533
Accounts receivable, net............. 177,425 26,068 203,493
Receivables from affiliates, net..... 762 853 1,615
Inventories.......................... 185,370 41,716 227,086
Prepaid expenses and deferred taxes.. 29,539 9,907 39,446
----------- --------- -----------
395,434 257,739 653,173
Property, plant, equipment and mine
development--at cost.................. 4,655,672 627,547 5,283,219
Less accumulated depreciation,
depletion and amortization............ (1,266,844) (201,013) (1,467,857)
----------- --------- -----------
3,388,828 426,534 3,815,362
Investments and other assets........... 448,139 19 448,158
----------- --------- -----------
Total assets......................... $ 4,232,401 $ 684,292 $ 4,916,693
=========== ========= ===========
LIABILITIES AND INVESTED CAPITAL
Current liabilities
Short-term borrowings and current
maturities of long-term debt........ $ 12,583 $ 230,690 $ 243,273
Income taxes payable................. 13,437 13,736 27,173
Accounts payable and accrued
expenses............................ 459,887 52,305 512,192
----------- --------- -----------
485,907 296,731 782,638
Long-term debt, less current
maturities............................ 202,351 11,243 213,594
Deferred income taxes.................. 499,840 89,112 588,952
Other noncurrent liabilities........... 1,935,985 11,869 1,947,854
Invested capital....................... 1,108,318 275,337 1,383,655
----------- --------- -----------
Total liabilities and invested
capital............................. $ 4,232,401 $ 684,292 $ 4,916,693
=========== ========= ===========
</TABLE>
F-36
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
P&L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED CASH FLOWS
FOR THE YEAR ENDED MARCH 31, 1998
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Net cash provided by operating
activities............................. $ 266,174 $ (84,496) $ 181,678
--------- --------- ---------
Additions to property, plant, equipment
and mine development................... (112,383) (53,953) (166,336)
Acquisitions and equity investments..... (58,715) -- (58,715)
Proceeds from contract renegotiations... 57,460 -- 57,460
Proceeds from property and equipment
disposals.............................. 36,948 784 37,732
--------- --------- ---------
Net cash used in investing
activities........................... (76,690) (53,169) (129,859)
Repayments of short-term borrowings and
long-term debt......................... (162,420) (201,146) (363,566)
Proceeds from short-term borrowings and
long-term debt......................... 90,000 269,391 359,391
Capital contribution (distribution)..... (50,230) 50,230 --
Dividends paid.......................... (65,109) -- (65,109)
Net transactions with affiliates........ (11,927) 1,362 (10,565)
Net change in due to/from affiliates.... (172,602) 17,062 (155,540)
--------- --------- ---------
Net cash provided by (used in)
financing activities................. (372,288) 136,899 (235,389)
Effect of exchange rate changes on cash
and equivalents........................ -- (718) (718)
--------- --------- ---------
Net increase (decrease) in cash and cash
equivalents............................ (182,804) (1,484) (184,288)
Cash and cash equivalents at beginning
of period.............................. 266,616 14,493 281,109
--------- --------- ---------
Cash and cash equivalents at end of
period................................. $ 83,812 $ 13,009 $ 96,821
========= ========= =========
</TABLE>
P&L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED CASH FLOWS
FOR THE SIX MONTHS ENDED MARCH 31, 1997
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Net cash provided by operating
activities............................. $ 36,460 $ 26,369 $ 62,829
-------- --------- ---------
Additions to property, plant, equipment
and mine development................... (59,531) (16,929) (76,460)
Proceeds from contract renegotiations... 15,466 -- 15,466
Proceeds from property and equipment
disposals.............................. 4,176 648 4,824
-------- --------- ---------
Net cash used in investing
activities........................... (39,889) (16,281) (56,170)
Repayments of short-term borrowings and
long-term debt......................... (15,741) (487,397) (503,138)
Proceeds from short-term borrowings and
long-term debt......................... 55,020 312,073 367,093
Capital contribution.................... 269,168 -- 269,168
Net transactions with affiliates........ (31,670) -- (31,670)
Net change in due to/from affiliates.... (1,010) (6,265) (7,275)
-------- --------- ---------
Net cash provided by (used in)
financing activities................. 275,767 (181,589) 94,178
Effect of exchange rate changes on cash
and equivalents........................ -- (1,261) (1,261)
-------- --------- ---------
Net increase (decrease) in cash and cash
equivalents............................ 272,338 (172,762) 99,576
Cash and cash equivalents at beginning
of period.............................. 2,338 179,195 181,533
-------- --------- ---------
Cash and cash equivalents at end of
period................................. $274,676 $ 6,433 $ 281,109
======== ========= =========
</TABLE>
F-37
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
P & L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED CASH FLOWS
FOR THE YEAR ENDED SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Net cash provided by operating
activities............................ $ 169,736 $ 41,799 $ 211,535
--------- ---------- ----------
Additions to property, plant, equipment
and mine development.................. (115,292) (36,814) (152,106)
Proceeds from contract renegotiations.. 29,211 -- 29,211
Proceeds from property and equipment
disposals............................. 15,258 1,997 17,255
--------- ---------- ----------
Net cash used in investing
activities.......................... (70,823) (34,817) (105,640)
Repayments of short-term borrowings and
long-term debt........................ (11,354) (850,759) (862,113)
Proceeds from short-term borrowings and
long-term debt........................ 2,534 1,035,182 1,037,716
Capital contribution................... 284,000 156 284,156
Net transactions with affiliates....... (46,114) -- (46,114)
Dividends paid......................... -- (72,830) (72,830)
Net change in due to/from affiliates... (329,359) 4,531 (324,828)
--------- ---------- ----------
Net cash provided by (used in)
financing activities................ (100,293) 116,280 15,987
Effect of exchange rate changes on cash
and equivalents....................... -- 5,886 5,886
--------- ---------- ----------
Net increase (decrease) in cash and
cash equivalents...................... (1,380) 129,148 127,768
Cash and cash equivalents at beginning
of period............................. 3,718 50,047 53,765
--------- ---------- ----------
Cash and cash equivalents at end of
period................................ $ 2,338 $ 179,195 $ 181,533
========= ========== ==========
</TABLE>
P & L COAL GROUP
SUPPLEMENTAL CONDENSED STATEMENTS OF COMBINED CASH FLOWS
FOR THE YEAR ENDED SEPTEMBER, 1995
<TABLE>
<CAPTION>
GUARANTOR NON-GUARANTOR
SUBSIDIARIES SUBSIDIARIES COMBINED
------------ ------------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Net cash provided by operating
activities............................. $ 212,405 $ 60,138 $ 272,543
--------- --------- ---------
Additions to property, plant, equipment
and mine development................... (163,306) (24,700) (188,006)
Acquisitions and equity investments..... (357,657) (1,900) (359,557)
Proceeds from sale of business unit..... 27,500 -- 27,500
Proceeds from contract renegotiations... 32,125 -- 32,125
Proceeds from property and equipment
disposals.............................. 23,783 2,042 25,825
--------- --------- ---------
Net cash used in investing
activities........................... (437,555) (24,558) (462,113)
Repayments of short-term borrowings and
long-term debt......................... (15,823) (469,430) (485,253)
Proceeds from short-term borrowings and
long-term debt......................... -- 425,833 425,833
Capital contribution.................... 206,420 -- 206,420
Dividends paid.......................... (274,600) -- (274,600)
Net transactions with affiliates........ (43,730) -- (43,730)
Net change in due to/from affiliates.... 349,792 531 350,323
--------- --------- ---------
Net cash provided by (used in)
financing activities................. 222,059 (43,066) 178,993
Effect of exchange rate changes on cash
and equivalents........................ -- 998 998
--------- --------- ---------
Net decrease in cash and cash
equivalents............................ (3,091) (6,488) (9,579)
Cash and cash equivalents at beginning
of period.............................. 6,809 56,535 63,344
--------- --------- ---------
Cash and cash equivalents at end of
period................................. $ 3,718 $ 50,047 $ 53,765
========= ========= =========
</TABLE>
F-38
<PAGE>
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(20) SEGMENT INFORMATION
The Company operates primarily in the coal industry. The Company's industry
and geographic data for continuing operations for the year ended March 31,
1998, the six months ended March 31, 1997 and the years ended September 30,
1996 and 1995 are as follows (dollars in thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
----------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues:
Coal.................. $ 2,211,772 $ 1,064,093 $ 2,193,586 $ 2,175,836
Other................. 32,690 -- -- --
----------- ----------- ----------- -----------
$ 2,244,462 $ 1,064,093 $ 2,193,586 $ 2,175,836
=========== =========== =========== ===========
Operating income (loss):
Coal.................. $ 256,779 $ 102,095 $ (651,296) $ 245,612
Other................. 12,408 -- -- --
----------- ----------- ----------- -----------
$ 269,187 $ 102,095 $ (651,296) $ 245,612
=========== =========== =========== ===========
Identifiable assets:
Coal.................. $ 5,158,488 $ 5,025,812 $ 4,916,693 $ 5,676,923
Other................. 1,196,746 -- -- --
----------- ----------- ----------- -----------
$ 6,355,234 $ 5,025,812 $ 4,916,693 $ 5,676,923
=========== =========== =========== ===========
<CAPTION>
YEAR ENDED SIX MONTHS YEAR ENDED YEAR ENDED
MARCH 31, ENDED MARCH 31, SEPTEMBER 30, SEPTEMBER 30,
1998 1997 1996 1995
----------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues:
United States......... $ 2,020,409 $ 943,554 $ 1,966,171 $ 1,982,536
Foreign............... 224,053 120,539 227,415 193,300
----------- ----------- ----------- -----------
$ 2,244,462 $ 1,064,093 $ 2,193,586 $ 2,175,836
=========== =========== =========== ===========
Operating income (loss):
United States......... $ 224,375 $ 79,781 $ (699,835) $ 207,682
Foreign............... 44,812 22,314 48,539 37,930
----------- ----------- ----------- -----------
$ 269,187 $ 102,095 $ (651,296) $ 245,612
=========== =========== =========== ===========
Identifiable assets:
United States......... $ 5,893,489 $ 4,519,380 $ 4,232,401 $ 5,145,918
Foreign............... 461,745 506,432 684,292 531,005
----------- ----------- ----------- -----------
$ 6,355,234 $ 5,025,812 $ 4,916,693 $ 5,676,923
=========== =========== =========== ===========
</TABLE>
F-39
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary....................................................... 1
Risk Factors............................................................. 19
Use of Proceeds.......................................................... 33
Capitalization........................................................... 33
Unaudited Pro Forma Condensed Combined Financial Statements.............. 34
Selected Combined Financial Data......................................... 39
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 40
Coal Industry Overview................................................... 52
Business................................................................. 63
Regulatory Matters....................................................... 87
Management............................................................... 93
Ownership of Capital Stock............................................... 100
The Acquisition.......................................................... 101
Related Party Transactions............................................... 103
Description of Certain Indebtedness...................................... 105
The Senior Exchange Offer................................................ 108
The Senior Subordinated Exchange Offer................................... 119
Description of the Senior Exchange Notes................................. 131
Description of Senior Subordinated Exchange Notes........................ 164
Certain United States Federal Tax Considerations......................... 199
Plan of Distribution..................................................... 200
Legal Matters............................................................ 200
Experts.................................................................. 201
Available Information.................................................... 201
Glossary of Selected Terms............................................... 202
Index to Combined Financial Statements................................... F-1
</TABLE>
UNTIL , 1998 (90 DAYS AFTER COMMENCEMENT OF THIS OFFERING), ALL DEALERS
EFFECTING TRANSACTIONS IN THE EXCHANGE NOTES, WHETHER OR NOT PARTICIPATING IN
THE EXCHANGE OFFER, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
$900,000,000
PEABODY
P&L COAL HOLDINGS CORPORATION
OFFER TO EXCHANGE $400,000,000 OF ITS 8 7/8% SERIES B SENIOR NOTES DUE 2008,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT, FOR $400,000,000 OF ITS
OUTSTANDING 8 7/8% SENIOR NOTES DUE 2008 AND UP TO $500,000,000 OF ITS 9 5/8%
SERIES B SENIOR SUBORDINATED NOTES DUE 2008, WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT, FOR $500,000,000 OF ITS OUTSTANDING 9 5/8% SENIOR
SUBORDINATED NOTES DUE 2008
---------------------------
PRELIMINARY PROSPECTUS
---------------------------
, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that, among other things, a corporation may indemnify directors and officers
as well as other employees and agents of the corporation against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
in connection with specified actions, suits or proceedings, whether civil,
criminal, administrative, or investigative (other than action by or in the
right of the corporation a "derivative action"), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred
in connection with the defense or settlement of such actions, and the statute
requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's by-laws, disinterested director vote, stockholder
vote, agreement or otherwise.
Article IV of the Registrant's By-laws requires indemnification to the
fullest extent permitted by Delaware law. The Registrant has also obtained
officers' and directors' liability insurance which insures against liabilities
that officers and directors of the Registrant, in such capacities, may incur.
The Registrant's Amended and Restated Certificate of incorporation (the
"Certificate of Incorporation") requires the advancement of expenses incurred
by officers or directors in relation to any action, suit or proceeding.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duties as a director, except for liability (i) for any
transaction from which the director derives an improper personal benefit, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL (certain
illegal distributions) or (iv) for any breach of a director's duty of loyalty
to the company or its stockholders. Article Seven of the Certificate of
Incorporation includes such a provision.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1 Purchase Agreement dated as of May 13, 1998, between P&L Coal Holdings
Corporation and Lehman Brothers Inc.
*2.1 Participation Agreement dated March 1, 1998 between Texas Utilities
Company and Lehman Brothers Merchant Banking Partners II L.P.
*2.2 Purchase Agreement between The Energy Group PLC and P&L Coal Holdings
Corporation as Purchaser.
3.1 Amended and Restated Certificate of Incorporation of P&L Coal Holdings
Corporation.
3.2 By-Laws of P&L Coal Holdings Corporation.
3.3 Certificate of Incorporation of Affinity Mining Company.
3.4 By-Laws of Affinity Mining Company.
3.5 Certificate of Incorporation of Arid Operations Inc.
3.6 By-Laws of Arid Operations Inc.
3.7 Certificate of Incorporation of Big Sky Coal Company.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.8 By-Laws of Big Sky Coal Company.
3.9 Articles of Incorporation of Blackrock First Capital Corporation.
3.10 By-Laws of Blackrock First Capital Corporation.
3.11 Certificate of Incorporation of Bluegrass Coal Company.
3.12 By-Laws of Bluegrass Coal Company.
3.13 Certificate of Incorporation of Caballo Coal Company.
3.14 By-Laws of Caballo Coal Company.
3.15 Certificate of Incorporation of Charles Coal Company.
3.16 By-Laws of Charles Coal Company.
3.17 Certificate of Incorporation of Coal Properties Corp.
3.18 By-Laws of Coal Properties Corp.
3.19 Exhibit Intentionally Omitted
3.20 Amended and Restated Venture Agreement of Colony Bay Coal Company.
3.21 Certificate of Incorporation of Cook Mountain Coal Company.
3.22 By-Laws of Cook Mountain Coal Company.
3.23 Certificate of Incorporation of Cottonwood Land Company.
3.24 By-Laws of Cottonwood Land Company.
3.25 Certificate of Incorporation of Orion Mines, Inc. (now known as Darius
Gold Mine Inc.)
3.26 By-Laws of Darius Gold Mine Inc.
3.27 Certificate of Incorporation of Koppers Recreation Camps (now known as
EACC Camps, Inc.)
3.28 By-Laws of Koppers Recreation Camps, Inc. (now known as EACC Camps,
Inc.)
3.29 Certificate of Incorporation of Eastern Associated Coal Corp.
3.30 By-Laws of Eastern Associated Coal Corp.
3.31 Certificate of Incorporation of Eastern Royalty Corp.
3.32 By-Laws of Eastern Royalty Corp.
3.33 Certificate of Incorporation of Exploraciones y Minerales Sierra
Morena S.A. (now known as Gold Fields Chile, S.A.)
3.34 By-Laws of Exploraciones y Minerales Sierra Morena S.A. (now known as
Gold Fields Chile, S.A.)
3.35 Restated Certificate of Incorporation of Gold Fields Mining
Corporation.
3.36 By-Laws of Gold Fields Mining Corporation.
3.37 Certificate of Incorporation of East Tennessee Coal Company (now known
as Gold Fields Operating Co.--Ortiz).
3.38 By-Laws of Gold Fields Operating Co.--Ortiz.
3.39 Articles of Incorporation of Grand Eagle Mining, Inc.
3.40 By-Laws of Grand Eagle Mining, Inc.
3.41 Certificate of Incorporation of Hayden Gulch Terminal, Inc.
3.42 By-Laws of Hayden Gulch Terminal, Inc.
3.43 Certificate of Incorporation of Independence Material Handling Company
3.44 By-Laws of Independence Material Handling Company
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.45 Certificate of Incorporation of Interior Holdings Corp.
3.46 By-Laws of Interior Holdings Corp.
3.47 Certificate of Incorporation of A.T. Two, Inc. (now known as James
River Coal Terminal Company).
3.48 Restated By-Laws of James River Coal Terminal Company.
3.49 Certificate of Incorporation of Juniper Coal Company.
3.50 By-Laws of Juniper Coal Company.
3.51 Certificate of Incorporation of Kayenta Mobile Home Park, Inc.
3.52 By-Laws of Kayenta Mobile Home Park, Inc.
3.53 Certificate of Incorporation of Martinka Coal Company.
3.54 By-Laws of Martinka Coal Company.
3.55 Articles of Incorporation of Midco Supply and Equipment Corporation.
3.56 By-Laws of Midco Supply and Equipment Corporation.
3.57 Certificate of Incorporation of Midwest Coal Resources, Inc.
3.58 By-Laws of Midwest Coal Resources, Inc.
3.59 Certificate of Incorporation of Nueast Mining Corp. (now known as
Mountain View Coal Company).
3.60 By-Laws of Nueast Mining Corp. (now known as Mountain View Coal
Company).
3.61 Articles of Incorporation of North Page Coal Corp.
3.62 By-Laws of North Page Coal Corp.
3.63 Articles of Incorporation of Ohio County Coal Company.
3.64 By-Laws of Ohio County Coal Company.
3.65 Certificate of Limited Partnership of Patriot Coal Company, L.P.
3.66 Limited Partnership Agreement of Patriot Coal Company, L.P.
3.67 Certificate of Incorporation of Peabody America, Inc.
3.68 By-Laws of Peabody America, Inc.
3.69 Certificate of Incorporation of Peabody Coal Company.
3.70 Restated By-Laws of Peabody Coal Company.
3.71 Certificate of Incorporation of Peabody COALSALES Company.
3.72 By-Laws of Peabody COALSALES Company.
3.73 Certificate of Incorporation of COALTRADE Inc. (now known as Peabody
COALTRADE, Inc.).
3.74 By-Laws of COALTRADE Inc. (now known as Peabody COALTRADE, Inc.)
3.75 Certificate of Incorporation of Premier Coal Sales Company, (now known
as Peabody Development Company).
3.76 Restated By-Laws of Peabody Development Company.
3.77 Certificate of Incorporation of Peabody Powertrade, Inc. (now known as
Peabody Energy Solutions, Inc.).
3.78 By-Laws of Peabody Powertrade, Inc. (now known as Peabody Energy
Solutions, Inc.).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.79 Restated Certificate of Incorporation of Peabody Holding Company, Inc.
3.80 Restated By-Laws of Peabody Holding Company, Inc.
3.81 Exhibit Intentionally Omitted
3.82 Second Amended and Restated Partnership Agreement re: Peabody Natural
Resources Company.
3.83 Certificate of Incorporation of Armco Terminal Company (now known as
Peabody Terminals, Inc.)
3.84 By-Laws of Peabody Terminals, Inc.
3.85 Certificate of Incorporation of Peabody Venezuela Coal Corp.
3.86 By-Laws of Peabody Venezuela Coal Corp.
3.87 Certificate of Incorporation of Peabody Western Coal Company.
3.88 By-Laws of Peabody Western Coal Company.
3.89 Certificate of Incorporation of Pine Ridge Coal Company.
3.90 By-Laws of Pine Ridge Coal Company.
3.91 Certificate of Incorporation of Powder River Coal Company.
3.92 Restated By-Laws of Powder River Coal Company.
3.93 Certificate of Incorporation of Rio Escondido Coal Corp.
3.94 By-Laws of Rio Escondido Coal Corp.
3.95 Certificate of Incorporation of Seneca Coal Company.
3.96 By-Laws of Seneca Coal Company.
3.97 Certificate of Incorporation of Sentry Mining Company.
3.98 By-Laws of Sentry Mining Company.
3.99 Certificate of Incorporation of Snowberry Land Company.
3.100 By-Laws of Snowberry Land Company.
3.101 Agreement of Incorporation of Low Volatile Coals, Inc. (now known as
Sterling Smokeless Company).
3.102 By-Laws of Sterling Smokeless Company.
3.103 Certificate of Formation of Thoroughbred, L.L.C.
3.104 Operating Agreement of Thoroughbred, L.L.C.
4.1 Senior Note Indenture dated as of May 18, 1998 between P&L Coal
Holdings Corporation and State Street Bank and Trust Company, as
Senior Note Trustee.
4.2 Senior Subordinated Note Indenture dated as of May 18, 1998 between
P&L Coal Holdings Corporation and State Street Bank and Trust Company,
as Senior Subordinated Note Trustee.
4.3 First Supplemental Senior Note Indenture dated as of May 19, 1998
among the Guaranteeing Subsidiary (as defined therein), P&L Coal
Holdings Corporation the other Senior Note Guarantors (as defined in
the Senior Note Indenture) and State Street Bank and Trust Company, as
Senior Note Trustee.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.4 First Supplemental Senior Subordinated Note Indenture dated as of May
19, 1998 among the Guaranteeing Subsidiary (as defined therein), P&L
Coal Holdings Corporation, the other Senior Subordinated Note
Guarantors (as defined in the Senior Subordinated Note Indenture) and
State Street Bank and Trust Company, as Senior Subordinated Note
Trustee.
4.5 Notation of Senior Subsidiary Guarantee dated as of May 19, 1998 among
the Senior Note Guarantors (as defined in the Senior Note Indenture).
4.6 Notation of Subordinated Subsidiary Guarantee dated as of May 19, 1998
among the Senior Subordinated Note Guarantors (as defined in the
Senior Subordinated Note Indenture).
4.7 Senior Note Registration Rights Agreement dated as of May 18, 1998
between P&L Coal Holdings Corporation and Lehman Brothers Inc.
4.8 Senior Subordinated Note Registration Rights Agreement dated as of May
18, 1998 between P&L Coal Holdings Corporation and Lehman Brothers
Inc.
5 Opinion of Simpson Thacher & Bartlett.
10.1 Amended and Restated Credit Agreement dated as of June 9, 1998 among
P&L Coal Holdings Corporation, as Borrower, Lehman Brothers Inc., as
Arranger, Lehman Commercial Paper Inc., as Syndication Agent,
Documentation Agent, and Administrative Agent, and the lenders party
thereto.
10.2 Guarantee and Collateral Agreement dated as of May 14, 1997 made by
the Guarantors, in favor of Lehman Commercial Paper, Inc., as
Administrative Agent for the banks and other financial institutions.
10.3 Federal Coal Lease WYW0321779: North Antelope/Rochelle Mine.
10.4 Federal Coal Lease WYW119554: North Antelope/Rochelle Mine.
10.5 Federal Coal Lease WYW5036: Rawhide Mine.
10.6 Federal Coal Lease WYW3397: Caballo Mine.
10.7 Federal Coal Lease WYW83394: Caballo Mine.
12 Computation of Ratio of Earnings to Fixed Charges.
21 List of Subsidiaries.
23.1 Consent of Simpson Thacher & Bartlett (included as part of its opinion
filed as Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP, independent certified public accountants
regarding P&L Coal Group.
23.3 Consent of Ernst & Young LLP, independent certified public
accountants, regarding P&L Coal Holdings Corporation.
23.4 Consent of John T. Boyd Company.
24 Powers of Attorney (included on pages II-9 through II-60).
25.1 Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of
State Street Bank and Trust Company, as Senior Notes Trustee.
25.2 Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of
State Street Bank and Trust Company, as Senior Subordinated Notes
Trustee.
27 Financial Data Schedule.
*99.1 Form of Senior Letter of Transmittal.
*99.2 Form of Senior Subordinated Letter of Transmittal.
*99.3 Form of Senior Notice of Guaranteed Delivery.
*99.4 Form of Senior Subordinated Notice of Guaranteed Delivery.
</TABLE>
- --------
* To be filed by amendment.
(b) Financial Statement Schedule
II-5
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
Peabody Holding Company, Inc. and Affiliates
We have audited the combined financial statements of P&L Coal Group as of
March 31, 1998 and 1997, and September 30, 1996, and for the year ended March
31, 1998, the six months ended March 31, 1997, and each of the two years ended
September 30, 1996, and have issued our report thereon dated April 24, 1998
(included elsewhere in this Registration Statement). Our audits also included
the financial statement schedule listed in Item 21(b) of this Registration
Statement. This schedule is the responsibility of the Company's management.
Our responsibility is to express an opinion based on our audits.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
St. Louis, Missouri /Ernst & Young LLP/
April 24, 1998
II-6
<PAGE>
P & L COAL GROUP
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE AT CHARGED TO BALANCE AT
BEGINNING COSTS AND END
DESCRIPTION OF PERIOD EXPENSES DEDUCTIONS(/1/) OTHER OF PERIOD
----------- ---------- ---------- --------------- ----- ----------
<S> <C> <C> <C> <C> <C>
YEAR ENDED MARCH 31,
1998
Reserves deducted from
asset accounts:
Land and coal
interests............ $61,276 $9,256 $(2,648) $67,884
Reserve for materials
and supplies......... 9,433 35 (2,908) (244)(/2/) 6,316
Allowance for doubtful
accounts............. 5,525 (378) 3,953 (/3/) 9,100
SIX MONTHS ENDED MARCH
31, 1997
Reserves deducted from
asset accounts:
Land and coal
interests............ 52,825 3,323 (3,424) 8,552 (/3/) 61,276
Reserve for materials
and supplies......... 10,383 (2,591) 1,641 (/3/) 9,433
Allowance for doubtful
accounts............. 5,072 453 5,525
YEAR ENDED SEPTEMBER 30,
1998
Reserves deducted from
asset accounts:
Land and coal
interests............ 64,815 4,600 (16,590) 52,825
Reserve for materials
and supplies......... 6,010 2,528 (406) 2,251 (/3/) 10,383
Allowance for doubtful
accounts............. 8,170 (3,098) 5,072
YEAR ENDED SEPTEMBER 30,
1995
Reserves deducted from
asset accounts:
Land and coal
interests............ 79,407 3,448 (18,040) 64,815
Reserve for materials
and supplies......... 5,206 1,092 (288) 6,010
Allowance for doubtful
accounts............. 8,398 (228) 8,170
</TABLE>
- --------
(1) Reserves utilized, unless otherwise indicated.
(2) Balances disposed of in Western Associated sale.
(3) Balances transferred from other accounts.
ITEM 22. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the DGCL, the Certificate of
Incorporation and By-laws, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
The Registrant hereby undertakes:
(1) that prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the
II-7
<PAGE>
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(2) that every prospectus: (i) that is filed pursuant to paragraph (1)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 present change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(6) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this
form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
(7) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
P&L COAL HOLDINGS CORPORATION
By: /s/ Irl F. Engelhardt
__________________________________
Chief Executive Officer and Director
POWER OF ATTORNEY
We, the undersigned directors and officers of P&L Coal Holdings Corporation,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on our
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ Irl F. Engelhardt Chief Executive Officer and Director
____________________________________
Irl F. Engelhardt
/s/ Richard M. Whiting President, Chief Operating Officer
____________________________________ and Director
Richard M. Whiting
/s/ George J. Holway Chief Financial Officer
____________________________________
George J. Holway
/s/ Alan H. Washkowitz Director
____________________________________
Alan H. Washkowitz
/s/ Henry E. Lentz Director
____________________________________
Henry E. Lentz
/s/ Roger H. Goodspeed Director
____________________________________
Roger H. Goodspeed
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
ARID OPERATIONS, INC.
/s/ G. J. Holway
By:
----------------------------------
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of ARID OPERATIONS, INC., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ G. J. Holway President
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President
- -------------------------------------
T. L. Bethel
</TABLE>
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
DARIUS GOLD MINE, INC.
/s/ G. J. Holway
By:
----------------------------------
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of DARIUS GOLD MINE, INC., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ G. J. Holway President
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President
- -------------------------------------
T. L. Bethel
</TABLE>
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
GOLD FIELDS CHILE, S.A.
/s/ G. J. Holway
By:
----------------------------------
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of GOLD FIELDS CHILE, S.A., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ G. J. Holway President
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President
- -------------------------------------
T. L. Bethel
</TABLE>
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
GOLD FIELDS MINING CORPORATION
/s/ G. J. Holway
By:
----------------------------------
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of GOLD FIELDS MINING
CORPORATION, do hereby constitute and appoint Felix Herlihy, Christopher G.
Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ G. J. Holway President
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President
- -------------------------------------
T. L. Bethel
</TABLE>
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
GOLD FIELDS OPERATING CO.--ORTIZ
/s/ G. J. Holway
By: ___________________________________
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of GOLD FIELDS OPERATING CO.--
ORTIZ, do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ G. J. Holway President
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President
- -------------------------------------
T. L. Bethel
</TABLE>
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY AMERICA, INC.
/s/ G. J. Holway
By:
----------------------------------
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY AMERICA, INC., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ G. J. Holway President
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President
- -------------------------------------
T. L. Bethel
</TABLE>
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY HOLDING COMPANY, INC.
/s/ I. F. Engelhardt
By: _____________________________________
I. F. Engelhardt
Chairman & Chief Executive
Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY HOLDING COMPANY, INC.,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments for
us and in our names in the capacities indicated below, which said attorneys and
agents, or either of them, may deem necessary or advisable to enable said
Corporation to comply with the Securities Act of 1933 and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ I. F. Engelhardt Chairman, Chief Executive Officer &
- ------------------------------------ Director
I. F. Engelhardt
/s/ G. J. Holway Vice President & Chief Financial
- ------------------------------------ Officer & Director
G. J. Holway
/s/ J. L. Klinger Director
- ------------------------------------
J. L. Klinger
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
AFFINITY MINING COMPANY
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of AFFINITY MINING COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer and
T. L. Bethel Director
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
BIG SKY COAL COMPANY
/s/ W. H. Carson
By: ___________________________________
W. H. Carson
President
POWER OF ATTORNEY
We, the undersigned directors and officers of BIG SKY COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ W. H. Carson President & Director
- -------------------------------------
W. H. Carson
/s/ M. T. Lewis Treasurer
- -------------------------------------
M. T. Lewis
/s/ G. L. Melvin Director
- -------------------------------------
G. L. Melvin
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
BLACKROCK FIRST CAPITAL CORPORATION
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of BLACKROCK FIRST CAPITAL
CORPORATION, do hereby constitute and appoint Felix Herlihy, Christopher G.
Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
BLUEGRASS COAL COMPANY
/s/ John C. Hill
By:
----------------------------------
John C. Hill
Vice President
POWER OF ATTORNEY
We, the undersigned directors and officers of BLUEGRASS COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ John C. Hill Vice President and Director
- -------------------------------------
John C. Hill
/s/ G. J. Holway Vice President, Treasurer and
- ------------------------------------- Director
G. J. Holway
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
CABALLO COAL COMPANY
/s/ L. H. Fox
By:
----------------------------------
L. H. Fox
President
POWER OF ATTORNEY
We, the undersigned directors and officers of CABALLO COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ L. H. Fox President & Director
- -------------------------------------
L. H. Fox
/s/ L. J. Reynolds Vice President, Treasurer & Director
- -------------------------------------
L. J. Reynolds
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
CHARLES COAL COMPANY
/s/ H. D. Dahl
By:
----------------------------------
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of CHARLES COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
COAL PROPERTIES CORP.
/s/ H. D. Dahl
By:
----------------------------------
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of COAL PROPERTIES CORP., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
COOK MOUNTAIN COAL COMPANY
/s/ H. D. Dahl
By:
----------------------------------
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of COOK MOUNTAIN COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-24
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
COTTONWOOD LAND COMPANY
/s/ J. L. Lautenschlager
By:
----------------------------------
J. L. Lautenschlager
President
POWER OF ATTORNEY
We, the undersigned directors and officers of COTTONWOOD LAND COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ J. L. Lautenschlager President & Director
- -------------------------------------
J. L. Lautenschlager
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
II-25
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
COLONY BAY COAL COMPANY
By:Eastern Associated Coal Corp. Its
General Partner
/s/ H. D. Dahl
By:
----------------------------------
H. D. Dahl
President & Director
POWER OF ATTORNEY
We, the undersigned directors of the general partners of COLONY BAY COAL
COMPANY, do hereby constitute and appoint Felix Herlihy, Christopher G.
Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
EASTERN ASSOCIATED COAL CORP. A General Partner
By: /s/ H. D. Dahl President
----------------------------------
H. D. Dahl
/s/ H. D. Dahl Director of Eastern Associated Coal
---------------------------------- Corp.
H. D. Dahl
/s/ T. L. Bethel Director of Eastern Associated Coal
---------------------------------- Corp.
T. L. Bethel
CHARLES COAL COMPANY A General Partner
By: /s/ H. D. Dahl President
----------------------------------
H. D. Dahl
/s/ H. D. Dahl Director of Charles Coal Company
----------------------------------
H. D. Dahl
/s/ T. L. Bethel Director of Charles Coal Company
----------------------------------
T. L. Bethel
II-26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
EACC CAMPS, INC.
/s/ H. D. Dahl
By: __________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of EACC CAMPS, INC., do hereby
constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery L.
Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-27
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
EASTERN ASSOCIATED COAL CORP.
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of EASTERN ASSOCIATED COAL CORP.,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-28
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
EASTERN ROYALTY CORP.
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of EASTERN ROYALTY CORP., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer & Director
T. L. Bethel
II-29
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
GRAND EAGLE MINING, INC.
/s/ John C. Hill
By: ___________________________________
John C. Hill
Vice President
POWER OF ATTORNEY
We, the undersigned directors and officers of GRAND EAGLE MINING, INC., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ John C. Hill Vice President, General Manager &
- ------------------------------------- Director
John C. Hill
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
II-30
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
HAYDEN GULCH TERMINAL, INC.
/s/ G. J. Holway
By: ___________________________________
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of HAYDEN GULCH TERMINAL, INC.,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ G. J. Holway President and Director
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President & Treasurer
- -------------------------------------
T. L. Bethel
/s/ C. G. Farrand Director
- -------------------------------------
C. G. Farrand
II-31
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
INDEPENDENCE MATERIAL HANDLING COMPANY
/s/ J. L. Lautenschlager
By: ___________________________________
J. L. Lautenschlager
President
POWER OF ATTORNEY
We, the undersigned directors and officers of INDEPENDENCE MATERIAL HANDLING
COMPANY, do hereby constitute and appoint Felix Herlihy, Christopher G.
Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ J. L. Lautenschlager President & Director
- -------------------------------------
J. L. Lautenschlager
/s/ G. J. Holway Vice President
- -------------------------------------
G. J. Holway
/s/ C. G. Farrand Director
- -------------------------------------
C. G. Farrand
II-32
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
INTERIOR HOLDINGS CORP.
/s/ I. F. Engelhardt
By: ___________________________________
I. F. Engelhardt
President
POWER OF ATTORNEY
We, the undersigned directors and officers of INTERIOR HOLDINGS CORP., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ I. F. Engelhardt President & Director
- -------------------------------------
I. F. Engelhardt
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
/s/ H. D. Dahl Director
- -------------------------------------
H. D. Dahl
II-33
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
JAMES RIVER COAL TERMINAL COMPANY
/s/ R. M. Whiting
By: ___________________________________
R. M. Whiting
President
POWER OF ATTORNEY
We, the undersigned directors and officers of JAMES RIVER COAL TERMINAL
COMPANY, do hereby constitute and appoint Felix Herlihy, Christopher G.
Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ R. M. Whiting President & Director
- -------------------------------------
R. M. Whiting
/s/ G. J. Holway Vice President & Treasurer &
- ------------------------------------- Director
G. J. Holway
II-34
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
JUNIPER COAL COMPANY
/s/ G. J. Holway
By: ___________________________________
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of JUNIPER COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ G. J. Holway President & Director
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President & Treasurer
- -------------------------------------
T. L. Bethel
/s/ C. G. Farrand Director
- -------------------------------------
C. G. Farrand
II-35
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
KAYENTA MOBILE HOME PARK, INC.
/s/ W. H. Carson
By: ___________________________________
W. H. Carson
President
POWER OF ATTORNEY
We, the undersigned directors and officers of KAYENTA MOBILE HOME PARK,
INC., do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ W. H. Carson President & Director
- -------------------------------------
W. H. Carson
/s/ C. W. Tilly Treasurer
- -------------------------------------
C. W. Tilly
/s/ G. L. Melvin Director
- -------------------------------------
G. L. Melvin
II-36
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
MARTINKA COAL COMPANY
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of MARTINKA COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-37
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
MIDCO SUPPLY AND EQUIPMENT CORPORATION
/s/ G. J. Holway
By: ___________________________________
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of MIDCO SUPPLY AND EQUIPMENT
CORPORATION, do hereby constitute and appoint Felix Herlihy, Christopher G.
Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ G. J. Holway President & Director
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President & Treasurer
- -------------------------------------
T. L. Bethel
/s/ G. P. Wickstra Director
- -------------------------------------
G. P. Wickstra
II-38
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
MIDWEST COAL RESOURCES, INC.
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of MIDWEST COAL RESOURCES, INC.,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President, Treasurer & Director
- -------------------------------------
T. L. Bethel
II-39
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
MOUNTAIN VIEW COAL COMPANY
/s/ H. D. Dahl
By:
----------------------------------
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of MOUNTAIN VIEW COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-40
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
NORTH PAGE COAL CORP.
/s/ H. D. Dahl
By:
----------------------------------
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of NORTH PAGE COAL CORP., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-41
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
OHIO COUNTY COAL COMPANY
/s/ J. C. Hill
By: ___________________________________
J. C. Hill
Vice President
POWER OF ATTORNEY
We, the undersigned directors and officers of OHIO COUNTY COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ J. C. Hill Vice President
- -------------------------------------
J. C. Hill
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
II-42
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PATRIOT COAL COMPANY, L.P.
By:Bluegrass Coal Company Its
Managing Partner
/s/ John C. Hill
By:
----------------------------------
John C. Hill
Its: Vice President
POWER OF ATTORNEY
We, the undersigned directors of the partners of PATRIOT COAL COMPANY, L.P.,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
BLUEGRASS COAL COMPANYIts Managing Partner
By: /s/ J. C. Hill Vice President
----------------------------------
J. C. Hill
/s/ J. C. Hill Director of Bluegrass Coal Company
----------------------------------
J. C. Hill
/s/ G. J. Holway Director of Bluegrass Coal Company
----------------------------------
G. J. Holway
SENTRY MINING COMPANY A Partner
By: /s/ G. J. Holway President
----------------------------------
G. J. Holway
/s/ C. G. Farrand Director of Sentry Mining Company
----------------------------------
C. G. Farrand
II-43
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY COALSALES COMPANY
/s/ R. A. Navarre
By: ___________________________________
R. A. Navarre
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY COALSALES COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ R. A. Navarre President & Director
- -------------------------------------
R. A. Navarre
/s/ G. J. Holway Vice President & Treasurer
- -------------------------------------
G. J. Holway
/s/ C. G. Farrand Director
- -------------------------------------
C. G. Farrand
/s/ R. M. Whiting Director
- -------------------------------------
R. M. Whiting
II-44
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY COALTRADE, INC.
/s/ P. H. Vining
By: ___________________________________
P. H. Vining
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY COALTRADE, INC., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ P. H. Vining President
- -------------------------------------
P. H. Vining
/s/ G. J. Holway Vice President & Treasurer
- -------------------------------------
G. J. Holway
/s/ C. G. Farrand Director
- -------------------------------------
C. G. Farrand
/s/ R. M. Whiting Director
- -------------------------------------
R. M. Whiting
II-45
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY COAL COMPANY
/s/ H. D. Dahl
By:
----------------------------------
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-46
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY DEVELOPMENT COMPANY
/s/ J. L. Lautenschlager
By: ___________________________________
J. L. Lautenschlager
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY DEVELOPMENT COMPANY,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ J. L. Lautenschlager President & Director
- -------------------------------------
J. L. Lautenschlager
/s/ G. J. Holway Treasurer & Director
- -------------------------------------
G. J. Holway
/s/ W. H. Carson Director
- -------------------------------------
W. H. Carson
II-47
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY ENERGY SOLUTIONS, INC.
/s/ R. A. Navarre
By: ___________________________________
R. A. Navarre
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY ENERGY SOLUTIONS,
INC., do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ R. A. Navarre President & Director
- -------------------------------------
R. A. Navarre
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
II-48
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY NATURAL RESOURCES COMPANY
By:Gold Fields Mining Corporation
Its General Partner
/s/ G. J. Holway
By:
----------------------------------
G. J. Holway
President & Director
POWER OF ATTORNEY
We, the undersigned directors of the general partners of PEABODY NATURAL
RESOURCES COMPANY, do hereby constitute and appoint Felix Herlihy, Christopher
G. Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true
and lawful attorneys and agents, to do any and all acts and things in our name
and on behalf in our capacities as directors and officers and to execute any
and all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
--------- -----
GOLD FIELDS MINING CORPORATION A General Partner
By: /s/ G. J. Holway President
----------------------------------
G. J. Holway
/s/ G. J. Holway Director of Gold Fields Mining
---------------------------------- Corporation
G. J. Holway
/s/ C. C. Kennedy Director of Gold Fields Mining
---------------------------------- Corporation
C. C. Kennedy
/s/ J. L. Klinger Director of Gold Fields Mining
---------------------------------- Corporation
J. L. Klinger
PEABODY AMERICA, INC. A General Partner
By: /s/ G. J. Holway President
----------------------------------
G. J. Holway
/s/ G. J. Holway Director of Peabody America, Inc.
----------------------------------
G. J. Holway
/s/ C. C. Kennedy Director of Peabody America, Inc.
----------------------------------
C. C. Kennedy
/s/ J. L. Klinger Director of Peabody America, Inc.
----------------------------------
J. L. Klinger
II-49
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY TERMINALS, INC.
/s/ R. M. Whiting
By: ___________________________________
R.M. Whiting
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY TERMINALS, INC., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ R. M. Whiting President & Director
- -------------------------------------
R. M. Whiting
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
II-50
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY VENEZUELA COAL CORP.
/s/ J. M. Wootten
By: ___________________________________
J. M. Wootten
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY VENEZUELA COAL CORP.,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ J. M. Wootten President & Director
- -------------------------------------
J. M. Wootten
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
II-51
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PEABODY WESTERN COAL COMPANY
/s/ W. H. Carson
By: ___________________________________
W. H. Carson
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PEABODY WESTERN COAL COMPANY,
do hereby constitute and appoint Felix Herlihy, Christopher G. Farrand,
Jeffery L. Klinger and George J. Holway, or any of them, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ W. H. Carson President & Director
- -------------------------------------
W. H. Carson
/s/ C. W. Tilly Treasurer & Assistant Secretary
- -------------------------------------
C. W. Tilly
/s/ G. L. Melvin Director
- -------------------------------------
G. L. Melvin
II-52
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
PINE RIDGE COAL COMPANY
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of PINE RIDGE COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President & Director
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President, Treasurer & Director
- -------------------------------------
T. L. Bethel
II-53
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
POWDER RIVER COAL COMPANY
/s/ L. H. Fox
By: ___________________________________
L. H. Fox
President
POWER OF ATTORNEY
We, the undersigned directors and officers of POWDER RIVER COAL COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ L. H. Fox President & Director
- -------------------------------------
L. H. Fox
/s/ L. J. Reynolds Vice President Finance & Treasurer
- -------------------------------------
L. J. Reynolds
/s/ G. J. Holway Director
- -------------------------------------
G. J. Holway
II-54
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July14, 1998.
RIO ESCONDIDO COAL CORP.
/s/ G. J. Holway
By: ___________________________________
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of RIO ESCONDIDO COAL CORP., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ G. J. Holway President & Director
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President & Treasurer
- -------------------------------------
T. L. Bethel
II-55
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
SENECA COAL COMPANY
/s/ W. H. Carson
By: ___________________________________
W. H. Carson
President
POWER OF ATTORNEY
We, the undersigned directors and officers of SENECA COAL COMPANY, do hereby
constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery L.
Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ W. H. Carson President & Director
- -------------------------------------
W. H. Carson
/s/ M. T. Lewis Treasurer
- -------------------------------------
M. T. Lewis
/s/ G. L. Melvin Director
- -------------------------------------
G. L. Melvin
II-56
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
SENTRY MINING COMPANY
/s/ G. J. Holway
By: ___________________________________
G. J. Holway
President
POWER OF ATTORNEY
We, the undersigned directors and officers of SENTRY MINING COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ G. J. Holway President
- -------------------------------------
G. J. Holway
/s/ T. L. Bethel Vice President & Treasurer
- -------------------------------------
T. L. Bethel
/s/ C. G. Farrand Director
- -------------------------------------
C. G. Farrand
II-57
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14th, 1998.
SNOWBERRY LAND COMPANY
/s/ J. L. Lautenschlager
By: ___________________________________
J. L. Lautenschlager
President
POWER OF ATTORNEY
We, the undersigned directors and officers of SNOWBERRY LAND COMPANY, do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ J. L. Lautenschlager President & Director
- -------------------------------------
J. L. Lautenschlager
/s/ G. J. Holway Vice President, Treasurer & Director
- -------------------------------------
G. J. Holway
II-58
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
STERLING SMOKELESS COAL COMPANY
/s/ H. D. Dahl
By: ___________________________________
H. D. Dahl
President
POWER OF ATTORNEY
We, the undersigned directors and officers of STERLING SMOKELESS COAL
COMPANY, do hereby constitute and appoint Felix Herlihy, Christopher G.
Farrand, Jeffery L. Klinger and George J. Holway, or any of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said Corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ H. D. Dahl President
- -------------------------------------
H. D. Dahl
/s/ T. L. Bethel Vice President--Finance &
- ------------------------------------- Administration, Treasurer &
T. L. Bethel Director
II-59
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused the Registration Statement or amendments thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, on July 14, 1998.
THOROUGHBRED, L.L.C.
/s/ I. F. Engelhardt
By: ___________________________________
I. F. Engelhardt
Chairman
POWER OF ATTORNEY
We, the undersigned directors and officers of THOROUGHBRED, L.L.C., do
hereby constitute and appoint Felix Herlihy, Christopher G. Farrand, Jeffery
L. Klinger and George J. Holway, or any of them, our true and lawful attorneys
and agents, to do any and all acts and things in our name and on behalf in our
capacities as directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed on the 14th day of July, 1998 by the following
persons in the capacities indicated:
SIGNATURE TITLE
/s/ I. F. Engelhardt Chairman
- -------------------------------------
I. F. Engelhardt
/s/ G. J. Holway Vice President & Treasurer
- -------------------------------------
G. J. Holway
II-60
<PAGE>
[ALTERNATE COVER FOR MARKET-MAKER PROSPECTUS]
PROSPECTUS
[LOGO OMITTED]
P&L COAL HOLDINGS CORPORATION
8 7/8% SERIES B SENIOR NOTES DUE 2008
AND
9 5/8% SERIES B SENIOR SUBORDINATED NOTES DUE 2008
-----------------
The 8 7/8% Series B Senior Notes due 2008 (the "Senior Exchange Notes") and
the 9 5/8% Series B Senior Subordinated Notes due 2008 (the "Senior
Subordinated Exchange Notes" and together with the Senior Exchange Notes, the
"Exchange Notes") of P&L Coal Holdings Corporation (the "Company" or "P&L")
were issued in exchange for the 8 7/8% Senior Notes due 2008 (the "Old Senior
Notes") and for the 9 5/8% Senior Subordinated Notes ("Old Senior Subordinated
Notes") respectively (the "Old Senior Notes" together with the "Old Senior
Subordinated Notes", the "Old Notes", and together with the Exchange Notes,
the "Notes") by the Company.
Interest on the Exchange Notes is payable semi-annually on May 15 and
November 15 of each year, commencing November 15, 1998. Prior to May 15, 2003,
each series of the Exchange Notes is redeemable at a redemption price equal to
100% of the principal amount thereof plus either the Senior Notes Make Whole
Premium (as defined) or the Senior Subordinated Notes Make Whole Premium (as
defined), plus, to the extent not included in either the Senior Notes Make
Whole Premium or the Senior Subordinated Notes Make Whole Premium, accrued and
unpaid interest and Liquidated Damages (as defined), if any, to the date of
redemption. On or after May 15, 2003, each series of Exchange Notes is subject
to redemption at the option of the Company, in whole or in part, at the
redemption prices set forth herein, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of redemption. In addition, at
any time prior to May 15, 2001, the Company may, at its option, redeem up to
35% of the aggregate principal amount of each series of the Exchange Notes at
a redemption price equal to (i) 108.875% of the principal amount of the Senior
Exchange Notes and (ii) 109.675% of the principal amount of the Senior
Subordinated Exchange Notes, in each case plus accrued and unpaid interest and
Liquidated Damage, if any, thereon to the date of redemption, with the net
proceeds of one or more Equity Offerings (as defined); provided that, in each
case, at least 65% of the aggregate principal amount of Senior Exchange Notes
and at least 65% of the aggregate principal amount of Senior Subordinated
Exchange Notes remain outstanding immediately after the occurrence of each
such redemption. See "Description of the Senior Exchange Notes--Optional
Redemption and Description of the Senior Subordinated Exchange Notes--Optional
Redemption."
Upon the occurrence of a Change of Control (as defined), the holders of each
series of the Exchange Notes (the "Holders") will have the right to require
the Company to repurchase such series of Exchange Notes, in whole or in part,
at a price equal to 101% of the respective principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date of purchase. See "Description of the Senior Exchange Notes--Repurchase at
the Option of Holders--Change of Control" and "Description of the Senior
Subordinated Exchange Notes--Repurchase at the Option of Holders--Change of
Control."
The Senior Exchange Notes are general unsecured obligations of the Company,
rank senior in right of payment to all subordinated Indebtedness (as defined)
of the Company and rank pari passu in right of payment with all current and
future unsecured senior Indebtedness of the Company. All borrowings under the
Senior Credit Facilities are secured by a first priority Lien (as defined) on
certain of the assets of the Company and its Domestic Subsidiaries (as
defined). Certain of the Company's current and future Restricted Subsidiaries
(as defined) that are Domestic Subsidiaries (the "Guarantors") jointly and
severally guarantee the Senior Exchange Notes on a senior basis (the "Senior
Subsidiary Guarantees"). As of March 31, 1998, after giving pro forma effect
to the Transactions (as defined), approximately $920.0 million would have been
outstanding under the Senior Credit Facilities. See "Capitalization",
"Description of the Senior Exchange Notes", "Description of the Senior
Subordinated Exchange Notes" and "Description of Certain Indebtedness."
The Senior Subordinated Exchange Notes are general unsecured obligations of
the Company, subordinate in right of payment to all existing and future Senior
Debt (as defined) of the Company, including all borrowings under the Senior
Credit Facilities. The Guarantors jointly and severally guarantee the Senior
Subordinated Exchange Notes on a senior subordinated basis (the "Subordinated
Subsidiary Guarantees" and, together with the Senior Subsidiary Guarantees,
the "Subsidiary Guarantees"). As of March 31, 1998, after giving pro forma
effect to the Transactions, the Company would have had approximately $2,098.0
million of indebtedness outstanding (excluding $239.9 million of non-recourse
indebtedness of Citizens Power (as defined), of which $1318.8 million would
have been Senior Debt (excluding letters of credit). See "Capitalization" and
"Description of the Senior Subordinated Exchange Notes--Subordination."
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION
WITH AN INVESTMENT IN THE EXCHANGE NOTES, SEE "RISK FACTORS" BEGINNING ON PAGE
[19].
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus has been prepared for and is to be used by Lehman Brothers
Inc. in connection with offers and sales in market-making transactions of the
Exchange Notes. The Company will not receive any of the proceeds of such
sales. Lehman Brothers Inc. may act as a principal or agent in such
transactions. The Exchange Notes may be offered in negotiated transactions or
otherwise.
-----------------
LEHMAN BROTHERS INC.
-----------------
The date of this Prospectus is , 1998
<PAGE>
[ALTERNATE PAGE FOR MARKET-MAKING PROSPECTUS]
TRADING MARKET FOR THE EXCHANGE NOTES
There is no existing trading market for the Exchange Notes, and there can be
no assurance regarding the future development of a market for the Exchange
Notes or the ability of the Holders of the Exchange Notes to sell their
Exchange Notes or the price at which such Holders may be able to sell their
Exchange Notes. If such market were to develop, the Exchange Notes could trade
at prices that may be higher or lower than their initial offering price
depending on many factors, including prevailing interest rates, the Company's
operating results and the market for similar securities. Although it is not
obligated to do so, Lehman Brothers Inc. intends to make a market in the
Exchange Notes. Any such market-making activity may be discontinued at any
time, for any reason, without notice at the sole discretion of Lehman Brothers
Inc. No assurance can be given as to the liquidity of or the trading market
for the Exchange Notes.
Lehman Brothers Inc. may be deemed to be an affiliate of the Company and, as
such, may be required to deliver a prospectus in connection with its market-
making activities in the Exchange Notes. Pursuant to the Registration Rights
Agreements, the Company agreed to file and maintain a registration statement
that would allow Lehman Brothers Inc. to engage in market-making transactions
in the Exchange Notes. Subject to certain exceptions set forth in the
Registration Rights Agreements, the registration statement will remain
effective for as long as Lehman Brothers Inc. may be required to deliver a
prospectus in connection with market-making transactions in the Exchange
Notes. The Company has agreed to bear substantially all the costs and expenses
related to such registration statement.
1
<PAGE>
[ALTERNATE PAGE FOR MARKET-MAKING PROSPECTUS]
USE OF PROCEEDS
This Prospectus is delivered in connection with the sale of the Exchange
Notes by Lehman Brothers Inc. in market-making transactions. The Company will
not receive any of the proceeds from such transactions.
2
<PAGE>
[ALTERNATE PAGE FOR MARKET-MAKING PROSPECTUS]
PLAN OF DISTRIBUTION
This Prospectus is to be used by Lehman Brothers Inc. in connection with
offers and sales of the Exchange Notes in market-making transactions effected
from time to time. Lehman Brothers Inc. may act as a principal or agent in
such transactions, including as agent for the counterparty when acting as
principal or as agent for both counterparties, and may receive compensation in
the form of discounts and commissions, including from both counterparties when
it acts as agent for both. Such sales will be made at prevailing market prices
at the time of sale, at prices related thereto or at negotiated prices.
Affiliates of Lehman Brothers Inc. currently own 100% of the capital stock
of the Company. See "Ownership of Capital Stock". Lehman Brothers Inc. has
informed the Company that it does not intend to confirm sales of the Exchange
Notes to any accounts over which it exercises discretionary authority without
the prior specific written approval of such transactions by the customer.
The Company has been advised by Lehman Brothers Inc. that, subject to
applicable laws and regulations, Lehman Brothers Inc. currently intends to
make a market in the Exchange Notes following completion of the Exchange
Offer. However, Lehman Brothers Inc. is not obligated to do so and any such
market-making may be interrupted or discontinued at any time without notice.
In addition, such market-making activity will be subject to the limits imposed
by the Securities Act and the Exchange Act. There can be no assurance that an
active trading market will develop or be sustained. See "Risk Factors--Trading
Market for the Exchange Notes."
Lehman Brothers Inc. has provided investment banking services to the Company
in the past and may provide such services and financial advisory services to
the Company in the future. Lehman Brothers Inc. acted as purchaser in
connection with the initial sale of the Notes and received an underwriting
discount of $27.0 million in connection therewith. See "Related Party
Transactions."
Lehman Brothers Inc. and the Company have entered into a registration rights
agreement with respect to the use by Lehman Brothers Inc. of this Prospectus.
Pursuant to such agreement, the Company agreed to bear all registration
expenses incurred under such agreement, and the Company agreed to indemnify
Lehman Brothers Inc. against certain liabilities, including liabilities under
the Securities Act.
3
<PAGE>
[ALTERNATE PAGE FOR MARKET-MAKING PROSPECTUS]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary....................................................... 1
Risk Factors............................................................. 19
Use of Proceeds.......................................................... 33
Capitalization........................................................... 33
Unaudited Pro Forma Condensed Combined Financial Statements.............. 34
Selected Combined Financial Data......................................... 43
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 44
Coal Industry Overview................................................... 56
Business................................................................. 67
Regulatory Matters....................................................... 91
Management............................................................... 97
Ownership of Capital Stock............................................... 104
The Acquisition.......................................................... 105
Related Party Transactions............................................... 107
Description of Certain Indebtedness...................................... 109
The Senior Exchange Offer................................................ 110
The Senior Subordinated Exchange Offer................................... 121
Description of the Senior Exchange Notes................................. 135
Description of the Senior Subordinated Exchange Notes....................
Description of the Senior Subordinated Exchange Notes.................... 204
Certain United States Federal Tax Considerations......................... 207
Plan of Distribution..................................................... 210
Legal Matters............................................................ 210
Experts.................................................................. 211
Available Information....................................................
Glossary of Selected Terms............................................... 211
Index to Financial Statements............................................ 212
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
P&L COAL HOLDINGS CORPORATION
[LOGO OMITTED]
8 7/8% SERIES B SENIOR
NOTES DUE 2008 AND
9 5/8% SERIES B SENIOR SUBORDINATED
NOTES DUE 2008
-----------------
PROSPECTUS
-----------------
LEHMAN BROTHERS INC.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 1.1
$900,000,000
P&L COAL HOLDINGS CORPORATION
$400,000,000 8-7/8% Senior Notes due 2008
$500,000,00 9-5/8% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
------------------
May 13, 1998
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
P&L Coal Holdings Corporation, a Delaware corporation (the
"COMPANY"), proposes to issue and sell to you (the "INITIAL PURCHASER"), $400.0
million in aggregate principal amount at maturity of its 8-7/8% Senior Notes due
2008 (the "SERIES A SENIOR NOTES") and $500.0 million in aggregate principal
amount at maturity of its 9-5/8% Senior Subordinated Notes due 2008 (the "SERIES
A SUBORDINATED NOTES" and together with the Series A Senior Notes, the "SERIES A
NOTES"), the Series A Senior Notes to be issued pursuant to the terms of an
Indenture (the "SENIOR NOTE INDENTURE") between the Company and State Street
Bank and Trust Company, as trustee (the "SENIOR NOTE TRUSTEE"), the Series A
Subordinated Notes to be issued pursuant to the terms of an Indenture (the
"SUBORDINATED NOTE INDENTURE" and together with the Senior Note Indenture, the
"INDENTURES") between the Company and State Street Bank and Trust Company, as
trustee (the "SUBORDINATED NOTE TRUSTEE" and together with the Senior Note
Trustee, the "TRUSTEES"), relating to the Series A Notes. Capitalized terms used
but not defined herein shall have the meanings given to such terms in the
Indentures.
Each tranche of the Series A Notes will be offered and sold to
you pursuant to exemptions from the registration requirements under the
Securities Act of 1933, as amended (the "SECURITIES ACT"). The Company has
prepared a preliminary offering memorandum, dated May 4, 1998 (the "PRELIMINARY
OFFERING MEMORANDUM"), and a final offering memorandum (the "OFFERING
MEMORANDUM"), dated May 13, 1998, relating to the Company and each tranche of
the Series A Notes.
It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Securities Act, each tranche of the Series A
Notes (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE UNITED STATES SECURITIES ACT OF 1933, AS
<PAGE>
2
AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE."
You have represented and warranted to the Company that you will
make offers (the "EXEMPT RESALES") of each tranche of the Series A Notes
purchased by you hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom you reasonably believe to be
"qualified institutional buyers," as defined in Rule 144A under the Securities
Act ("QIBS"), and (ii) to persons other than U.S. persons in offshore
transactions meeting the requirements of Rule 903 or 904 of Regulation S (such
persons specified in clauses (i) and (ii) being referred to herein as the
"ELIGIBLE PURCHASERS"). As used herein, the terms "OFFSHORE TRANSACTION" and
"U.S. PERSON" have the respective meanings given to them in Regulation S. You
will offer each tranche of the Series A Notes to Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof. Such price may be
changed at any time without notice.
Holders (including subsequent transferees) of the Series A Senior
Notes will have the registration rights set forth in the registration rights
agreement (the "SENIOR REGISTRATION RIGHTS AGREEMENT"), to be dated May 18, 1998
(the "CLOSING DATE"), for so long as such Series A Senior Notes constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Senior Registration Rights
Agreement). Holders (including subsequent transferees) of the Series A
Subordinated Notes will have the registration rights set forth in the
registration rights agreement (the "SUBORDINATED REGISTRATION RIGHTS AGREEMENT"
and, together with the Senior Registration Rights Agreement, the "REGISTRATION
RIGHTS AGREEMENTS"), to be dated the Closing Date, for so long as such Series A
Subordinated Notes constitute "TRANSFER RESTRICTED SECURITIES" (as defined in
the Subordinated Registration Rights Agreement). Pursuant to the Registration
Rights Agreements, the Company will agree to file with the Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the Company's 8-7/8% Series B Senior
Notes due 2008 (the "SERIES B SENIOR NOTES"), its 9-5/8% Series B Senior
Subordinated
<PAGE>
3
Notes due 2008 (the "SERIES B SUBORDINATED NOTES" and together with the Series B
Senior Notes, the "SERIES B NOTES;" the Series B Notes together with the Series
A Notes, the "NOTES") to be offered in exchange for each tranche of the Series A
Notes (such offer to exchange being referred to collectively as the "EXCHANGE
OFFER") and (ii) a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION STATEMENT," and together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS") relating
to the resale of each tranche of the Series A Notes by certain holders of such
Notes, and to use its best efforts to cause such Registration Statements to be
declared effective. This Agreement, the Indentures and the Registration Rights
Agreements are hereinafter referred to collectively as the "OPERATIVE
DOCUMENTS." This is to confirm the agreement concerning the purchase of each
tranche of the Series A Notes from the Company by the Initial Purchaser.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company (as of the date hereof and the Closing Date) represents, warrants and
agrees as follows:
The Preliminary Offering Memorandum and Offering Memorandum have
been prepared by the Company for use by the Initial Purchaser in connection with
the Exempt Resales. No order or decree preventing the use of the Preliminary
Offering Memorandum or the Offering Memorandum, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the Securities Act, has been issued and no proceeding for that
purpose has commenced or is pending or, to the knowledge of the Company, is
contemplated.
The Preliminary Offering Memorandum and the Offering Memorandum
as of their respective dates did not, and the Offering Memorandum as of the
Closing Date will not, contain an untrue statement of a material fact or omit to
state a material fact necessary, in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
The market-related and industry data included in the Preliminary
Offering Memorandum and the Offering Memorandum are based upon estimates by the
Company derived from sources which the Company believes to be reliable and
accurate in all material respects.
The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of Delaware with all requisite
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Preliminary Offering Memorandum and the
Offering Memorandum, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify or to be in
good standing would not reasonably be expected to have a material adverse effect
on the financial condition, business, properties or results of operations of the
Company (a "MATERIAL ADVERSE EFFECT").
The Company has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Indentures and the
Registration Rights Agreements.
The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under each tranche of the Notes.
This Agreement has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by the
Initial Purchaser, constitutes the legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms subject to
(i) the effects of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable
<PAGE>
4
principles (whether considered in a proceeding in equity or at law), (iii) an
implied covenant of good faith and fair dealing and (iv) except as rights to
indemnity and contribution hereunder may be limited by Federal or state
securities laws or principles of public policy.
The Senior Registration Rights Agreement has been duly authorized
by the Company and, upon its execution and delivery by the Company and, assuming
due authorization, execution and delivery by the Initial Purchaser, will
constitute the legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law), (iii) an implied covenant of good faith and fair dealing and (iv) except
as rights to indemnity and contribution hereunder may be limited by Federal or
state securities laws or principles of public policy.
The Subordinated Registration Rights Agreement has been duly
authorized by the Company and, upon its execution and delivery by the Company
and, assuming due authorization, execution and delivery by the Initial
Purchaser, will constitute the legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms subject to
(i) the effects of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered in a
proceeding in equity or at law), (iii) an implied covenant of good faith and
fair dealing and (iv) except as rights to indemnity and contribution hereunder
may be limited by Federal or state securities laws or principles of public
policy.
The Senior Note Indenture has been duly authorized by the
Company, and upon its execution and delivery by the Company and, assuming due
authorization, execution and delivery by the Senior Note Trustee, will
constitute the legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii) by
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing; no
qualification of the Senior Note Indenture under the Trust Indenture Act of
1939, as amended ("TIA") is required in connection with the offer and sale of
the Series A Senior Notes contemplated hereby or in connection with the Exempt
Resales other than in connection with the performance of the Company's
obligations under the Senior Registration Rights Agreement.
The Subordinated Note Indenture has been duly authorized by the
Company, and upon its execution and delivery by the Company and, assuming due
authorization, execution and delivery by the Subordinated Note Trustee, will
constitute the legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii) by
general principles (whether considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing; no qualification of
the Subordinated Note Indenture under the TIA is required in connection with the
offer and sale of the Series A Subordinated Notes contemplated hereby or in
connection with the Exempt Resales other than in connection with the performance
of the Company's obligations under the Subordinated Registration Rights
Agreement.
The Series A Senior Notes have been duly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Senior Note Indenture and, assuming
<PAGE>
5
due authentication of the Series A Senior Notes by the Senior Note Trustee, upon
delivery to the Initial Purchaser against payment therefor in accordance with
the terms hereof, will have been validly issued and delivered, and will
constitute legally valid and binding obligations of the Company entitled to the
benefits of the Senior Note Indenture, enforceable against the Company in
accordance with their terms subject to (i) the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws relating to or affecting creditors' rights generally, (ii) by general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing.
The Series A Subordinated Notes have been duly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Subordinated Note Indenture and, assuming due authentication of the Series A
Subordinated Notes by the Subordinated Notes Trustee, upon delivery to the
Initial Purchaser against payment therefor in accordance with the terms hereof,
will have been validly issued and delivered, and will constitute legally valid
and binding obligations of the Company entitled to the benefits of the
Subordinated Note Indenture, enforceable against the Company in accordance with
their terms subject to (i) the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws
relating to or affecting creditors' rights generally, (ii) by general equitable
principles (whether enforcement is considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
On or before the Closing Date the Series B Senior Notes will have
been duly authorized by the Company and if and when duly issued and
authenticated in accordance with the terms of the Senior Note Indenture and
delivered in accordance with the Exchange Offer provided for in the Senior
Registration Rights Agreement, will constitute legally valid and binding
obligations of the Company entitled to the benefits of the Senior Note
Indenture, enforceable against the Company in accordance with their terms
subject to (i) the effects of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally, (ii) by general equitable principles
(whether enforcement is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing.
On or before the Closing Date, the Series B Subordinated Notes
will have been duly authorized by the Company and if and when duly issued and
authenticated in accordance with the terms of the Subordinated Note Indenture
and delivered in accordance with the Exchange Offer provided for in the
Subordinated Registration Rights Agreement, will constitute legally valid and
binding obligations of the Company entitled to the benefits of the Subordinated
Note Indenture enforceable against the Company in accordance with their terms
subject to (i) the effects of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally, (ii) by general equitable principles
(whether enforcement is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing.
The senior credit facilities, dated as of May 18, 1998, by and
among P&L Coal Holdings Corporation and Lehman Commercial Paper Inc., as
Administrative Agent, Syndication Agent and Documentation Agent, and Lehman
Brothers Inc., as Arranger, (the "CREDIT FACILITIES"), and any and all other
agreements and instruments ancillary to or entered into in connection with the
transaction contemplated by the credit agreement (the "CREDIT DOCUMENTS"), were
duly and validly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the other parties thereto,
constitute the valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms subject to (i) the effects
of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors'
<PAGE>
6
rights generally, (ii) by general equitable principles (whether enforcement is
considered in a proceeding in equity or at law) and (iii) an implied covenant
of good faith and fair dealing.
All the shares of capital stock, partnership, membership or other
equity interest of the Company outstanding prior to the issuance of each tranche
of the Series A Notes have been duly authorized and validly issued and are fully
paid and nonassessable.
The Company does not own capital stock or other equity interests
of any corporation or entity other than as disclosed in the Offering Memorandum.
There are no legal or governmental proceedings pending or, to the
knowledge of the Company, contemplated by, or threatened, against the Company or
to which any of its properties are subject, that are not disclosed in the
Offering Memorandum and which, are reasonably likely to have a Material Adverse
Effect or to materially and adversely affect the issuance of each tranche of the
Notes or the consummation of the other transactions contemplated by the
Operative Documents. The Company is not involved in any strike, job action or
labor dispute with any group of employees, and, to the knowledge of the Company,
no such action or dispute is threatened.
No material relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers, shareholders,
members, partners, customers or suppliers of the Company on the other hand, that
would be required to be described in the Offering Memorandum pursuant to
Regulation S-K of the Securities Act if Regulation S-K were applicable to the
Offering Memorandum, which is not so described in the Offering Memorandum.
The execution, delivery and performance of this Agreement and the
other Operative Documents and the issuance of each tranche of the Series A Notes
and each tranche of the Series B Notes and the consummation of the transactions
contemplated hereby and thereby will not conflict with, or result in a breach or
violation of any of the terms or provisions of, or (including with the giving of
notice or the lapse of time or both) constitute a default under (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the properties or assets of the Company are subject, (ii) the
provisions of the charter, by-laws or other organizational documents of the
Company or (iii) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties or assets, except in the cases of clause (i) or (iii), such breaches,
violations or defaults that in the aggregate would not reasonably be expected to
have a Material Adverse Effect; and no consent, approval, authorization or order
of, or filing or registration with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement and the
other Operative Documents and the issuance of each tranche of the Series A Notes
and each tranche of the Series B Notes and the consummation of the transactions
contemplated hereby and thereby except (A) as may be required by the securities
or "blue sky" laws of any state of the United States in connection with the sale
of each tranche of the Series A Notes and each tranche of the Series B Notes,
and (B) as contemplated by the Registration Rights Agreements and (C) as
required under the TIA for the issuance of each tranche of the Series B Notes,
and (D) in connection with trading of the Notes on PORTAL.
The accountants, Ernst & Young LLP, who have certified certain of
the financial statements included as part of the Offering Memorandum, are
independent public accountants as required by the Securities Act and its Rules
and Regulations.
<PAGE>
7
The John T. Boyd Company, whose report is referred to in the
Offering Memorandum, as of the date of such report, and is, as of the date
hereof, independent mining and geological consultants with respect to the
Company.
The combined historical financial statements, and pro forma
financial information, together with the related notes thereto, set forth in the
Offering Memorandum comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act applicable to
registration statements under the Securities Act. Such historical financial
statements fairly present in all material respects the financial position of the
Company at the respective dates indicated and the results of operations and cash
flows for the respective periods indicated, subject in the case of unaudited
combined financial statements to year-end audit adjustments, in each case in
accordance with generally accepted accounting principles ("GAAP") consistently
applied throughout such periods. Such pro forma financial information has been
prepared on a basis consistent with such historical and proposed transactions
contemplated by the Offering Memorandum and this Agreement. The other financial
information and data included in the Offering Memorandum, historical and pro
forma, are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company.
Since the date of the latest audited combined financial
statements of the Company included in the Offering Memorandum, the Company has
not incurred any liability or obligation, direct or contingent, or entered into
any transaction, in each case not in the ordinary course of business, that is
material to the Company and there has been no Material Adverse Effect and,
except as disclosed in or contemplated by the Offering Memorandum, since the
date of the latest audited combined financial statements of the Company included
in the Offering Memorandum, there has been no (i) dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital stock
(other than the payment of regular quarterly cash dividends), (ii) issuance of
securities (other than pursuant to the Company's employee benefit plans and
agreement and the issuance of the Series A Notes offered hereby) or (iii)
material increase in short-term or long-term debt of the Company.
The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
it, in each case free and clear of all liens, claims, security interests or
other encumbrances and defects except such as are described in the Offering
Memorandum, other than to be granted pursuant to the Senior Credit Facilities,
or such as do not materially affect the value of such property by the Company or
would not reasonably be expected to have a Material Adverse Effect; and all
material real property and buildings held under lease by the Company is held
under valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company.
The Company has such permits, licenses, franchises, certificates,
consents, orders and other approvals or authorizations of any governmental or
regulatory authority ("PERMITS"), including, without limitation, any permits or
approvals required by the United States Environmental Protection Agency, the
United States Office of Surface Mining Reclamation and Enforcement and
corresponding state agencies and any other entity or agency regulating the
environment in countries other than the United States, as are necessary under
applicable law to own its properties and to conduct its businesses in the manner
described in the Offering Memorandum and, except to the extent that the failure
to have such Permits would not reasonably be expected to have a Material Adverse
Effect. The Company has fulfilled and performed in all material respects, all
its material obligations with respect to the Permits, and, to the best knowledge
of the Company, no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit, subject in
each case to such qualification as may be set forth in the
<PAGE>
8
Offering Memorandum and except to the extent that any such revocation or
termination would not reasonably be expected to have a Material Adverse Effect.
The Company is not currently and will not be, upon sale of each
tranche of the Series A Notes in accordance herewith and the application of the
net proceeds therefrom as described in the Offering Memorandum under the caption
"Use of Proceeds," an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("REGULATION D") under the Securities Act) of the Company, other
than the Initial Purchaser, has directly, or through any agent (provided that no
representation is made as to the Initial Purchaser or any person acting on their
behalf), (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act) which
is or could be integrated with the offering and sale of each tranche of the
Notes in a manner that would require the registration of each tranche of the
Series A Notes under the Securities Act or (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D,
including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising) in
connection with the offering of each tranche of the Series A Notes. No
securities of the same class as each tranche of the Series A Notes have been
issued and sold by the Company within the six-month period immediately prior to
the date hereof.
Except as permitted by the Securities Act, the Company has not
distributed and, prior to the Closing Date will not distribute, any offering
material in connection with the offering and sale of each tranche of the Series
A Notes other than the Preliminary Offering Memorandum and Offering Memorandum.
When each tranche of the Series A Notes is issued and delivered
pursuant to this Agreement, neither tranche of such Series A Notes will be of
the same class (within the meaning of Rule 144A under the Securities Act) as
securities of the Company that are listed on a national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") or that are quoted in a United States automated inter-
dealer quotation system.
Assuming (i) that each tranche of the Series A Notes is issued,
sold and delivered under the circumstances contemplated by the Offering
Memorandum and this Agreement, (ii) that your representations and warranties in
Section 2 are true, (iii) compliance by you with your covenants set forth in
Section 2 and (iv) that each of the Eligible Purchasers is either (A) an entity
that you reasonably believe to be a QIB or (B) a person who is not a "U.S.
person" and who acquires the Series A Notes outside the United States in an
"offshore transaction" (within the meaning of Regulation S), the purchase of
each tranche of the Series A Notes by you pursuant hereto and the initial resale
of each tranche of the Series A Notes pursuant to the Exempt Resales is exempt
from the registration requirements of the Securities Act.
Except as would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect: the Company is in compliance
in all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any liability; the Company
has not incurred and does not reasonably expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii)
<PAGE>
9
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the "CODE"). Each
"pension plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification, except as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
The execution and delivery of this Agreement, the other Operative
Documents and the sale of each tranche of the Series A Notes to be purchased by
the Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code. The representation
made by the Company in the preceding sentence is made in reliance upon and
subject to the accuracy of, and compliance with, the representations and
covenants made or deemed made by the Eligible Purchasers as set forth in the
Offering Memorandum under the section entitled "Notice to Investors."
Except as described in the Offering Memorandum, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statements
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
To the knowledge of the Company, the Company carries, or is
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of its businesses and the value of its properties and as is
customary for companies engaged in similar businesses in similar industries.
The Company has filed (or obtained extensions in filing) all
Federal, state and local income and franchise tax returns required to be filed
through the date hereof (other than those the nonfiling of which would not have
a Material Adverse Effect) and have paid all taxes due thereon, other than those
being contested in good faith and for which reserves have been provided in
accordance with GAAP, those currently payable without penalty or interest, or
the nonpayment of which would not have a Material Adverse Effect. No tax
deficiency has been determined adversely to the Company nor does the Company
have any knowledge of any tax deficiency which, if determined adversely to the
Company, would have a Material Adverse Effect.
Except as set forth in the Offering Memorandum, there has been no
storage, disposal, generation, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the Company
(or, to the knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the property now or previously owned or leased by the
Company in violation of any applicable law, ordinance, rule, regulation or
order, or which would require remedial action under any applicable law,
ordinance, rule, regulation or order, except for any violation or remedial
action which would not be reasonably likely to have, singularly or in the
aggregate, a Material Adverse Effect; except as set forth in, or specifically
contemplated by, the Offering Memorandum there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any kind
onto such property or into the environment surrounding such property of any
toxic wastes, solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or with respect to which the Company has knowledge, except
for any such spill, discharge, leak, emission, injection, escape, dumping or
release which would not be reasonably likely to have, singularly or in the
aggregate, a Material Adverse Effect; and the terms "hazardous wastes," "medical
wastes," "toxic wastes," and "hazardous substances"
<PAGE>
10
shall have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
None of the Company or any of its affiliates (other than the
Initial Purchaser) or any person acting on its or their behalf has engaged or
will engage during the applicable restricted period in any directed selling
efforts within the meaning of Rule 902(b) of Regulation S with respect to each
tranche of the Notes, and the Company and its affiliates and all persons acting
on its or their behalf have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of
each tranche of the Notes outside of the United States; provided, that, no
representation or covenant is made as to the Initial Purchaser or any person
acting on their behalf.
The sale of each tranche of the Series A Notes pursuant to
Regulation S are "offshore transactions" and are not part of a plan or scheme to
evade the registration provisions of the Securities Act.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INITIAL
PURCHASER. The Initial Purchaser represents and warrants that:
The Initial Purchaser is a QIB with such knowledge and experience
in financial and business matters as are necessary in order to evaluate the
merits and risks of an investment in each tranche of the Series A Notes.
The Initial Purchaser (i) is not acquiring each tranche of the
Series A Notes with a view to any distribution thereof or with any present
intention of offering or selling any of either tranche of the Series A Notes in
a transaction that would violate the Securities Act or the securities laws of
any State of the United States or any other applicable jurisdiction; (ii) in
connection with the Exempt Resales, will solicit offers to buy the Notes only
from, and will offer to sell either tranche of the Notes only to, the Eligible
Purchasers in accordance with this Agreement and on the terms contemplated by
the Offering Memorandum; and (iii) will not offer or sell either tranche of the
Notes pursuant to, nor has it offered or sold either tranche of the Notes by, or
otherwise engaged in, any form of general solicitation or general advertising
(within the meaning of Regulation D; including, but not limited to,
advertisements, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising) in connection with the offering of each
tranche of the Series A Notes.
It understands that neither tranche of the Notes has been and
will not be registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
pursuant to an exemption from the registration requirements of the Securities
Act or outside the U.S. or to, or for the account or benefit of non-U.S. persons
in accordance with Regulation S. The Initial Purchaser represents that it has
not offered, sold or delivered either tranche of the Notes, and will not offer,
sell or deliver either tranche of the Notes (i) as part of its distribution at
any time or (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date or such longer period as may then be
applicable under Regulation S (such period, the "RESTRICTED PERIOD"), within the
United States or to, or for the account or benefit of U.S. persons, except in
accordance with Rule 144A under the Securities Act or another applicable
exemption. Accordingly, the Initial Purchaser represents and agrees that neither
it, its affiliates nor any persons acting on its or their behalf has engaged or
will engage in any directed selling efforts within the meaning of Rule 902(b) of
Regulation S with respect to either tranche of the Notes, and it, its affiliates
and all persons acting on its behalf have complied and will comply with the
offering restriction requirements of Regulation S.
<PAGE>
11
The Initial Purchaser agrees that at or prior to confirmation of
all sales of each tranche of the Notes pursuant to Regulation S, it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Notes from it during the Restricted Period
a confirmation or notice substantially to the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering or the closing date, except in either case in accordance with
Rule 144A if available under the Securities Act. Terms used above have
the meanings assigned to them in Regulation S."
The Initial Purchaser further agrees that it has not entered and will
not enter into any contractual arrangement with respect to the distribution or
delivery of either tranche of the Notes, except with its affiliates or with the
prior written consent of the Company.
The Initial Purchaser agrees not to cause any advertisement of
either tranche of the Notes to be published in any newspaper or periodical or
posted in any public place and not to issue any circular relating to each
tranche of the Notes, except such advertisements as may be permitted by
Regulation S.
The sale of each tranche of the Series A Notes pursuant to
Regulation S are "offshore transactions" and are not part of a plan or scheme to
evade the registration provisions of the Securities Act.
The Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to you pursuant to Section 7 hereof,
counsel to the Company and counsel to the Initial Purchaser, will rely upon the
accuracy and truth of the foregoing representations and you hereby consent to
such reliance.
The terms used in this Section 2 that have meanings assigned to them
in Regulation S are used herein as so defined.
PURCHASE OF THE NOTES BY THE INITIAL PURCHASER. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell $400.0 million in
aggregate principal amount of Series A Senior Notes to the Initial Purchaser and
the Initial Purchaser will purchase such aggregate principal amount of Series A
Senior Notes at an aggregate purchase price equal to 97.0% of the principal
amount thereof (the "SENIOR NOTES PURCHASE PRICE") and the Company agrees to
sell $500.0 million in aggregate principal amount of Series A Subordinated Notes
to the Initial Purchaser and the Initial Purchaser will purchase such aggregate
principal amount of Series A Subordinated Notes at an aggregate purchase price
equal to 97.0% of the principal amount thereof (the "SUBORDINATED NOTES PURCHASE
PRICE").
The Company shall not be obligated to deliver any of the Series A
Notes to be delivered, except upon payment for all of each tranche of the Series
A Notes to be purchased on such Closing Date as provided herein.
<PAGE>
12
DELIVERY OF AND PAYMENT.
Delivery to the Initial Purchaser of and payment for each tranche
of the Series A Notes shall be made at 10:00 a.m., New York City time, on the
Closing Date at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, New York 10017-3954, or such other place or time as you and the
Company shall designate.
One or more of each tranche of Series A Notes in definitive form,
registered in the name of Cede & Co., as nominee of The Depository Trust Company
("DTC"), or such other names as the Initial Purchaser may request upon at least
one business days' notice to the Company, having an aggregate principal amount
at maturity corresponding to the aggregate principal amount of each tranche of
the Series A Notes sold pursuant to Exempt Resales (collectively, the "GLOBAL
NOTES"), shall be delivered by the Company to the Initial Purchaser, against
payment by the Initial Purchaser of the purchase price thereof by wire transfer
of immediately available funds as the Company may direct by written notice
delivered to you one business day prior to the Closing Date. The Global Notes in
definitive form shall be made available to you for inspection not later than
10:00 a.m. on the day immediately preceding the Closing Date.
Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
the Initial Purchaser hereunder.
FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
To advise you promptly and, if requested by you, to confirm such
advice in writing, of (i) the issuance by any state securities commission of any
stop order suspending the qualification or exemption from qualification of each
tranche of any Series A Notes for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by the Commission or any state
securities commission or other regulatory authority, and (ii) the happening of
any event that makes any statement of a material fact made in the Offering
Memorandum untrue or that requires the making of any additions to or changes in
the Offering Memorandum in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company shall use
its reasonable efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of each tranche of the Series A Notes
under any state securities or Blue Sky laws and, if at any time any state
securities commission shall issue any stop order suspending the qualification or
exemption of each tranche of the Series A Notes under any state securities or
Blue Sky laws, the Company shall use every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
To furnish to you, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as you may reasonably request. The Company consents to
the use of the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments and supplements thereto required pursuant to this Agreement, by
you in connection with the Exempt Resales that are in compliance with this
Agreement.
Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless you shall previously have been advised of, and shall not
have reasonably objected to, such amendment or supplement within a reasonable
time, but in any event not longer than two Business Days after being furnished a
copy of such amendment or supplement. If, in connection with any Exempt Resales
or market-making transactions after the date of this Agreement and prior to the
consummation of the Exchange Offer, any event shall occur that, in the judgment
of the Company or in the judgment of counsel to you, makes any statement of a
material fact in the Offering Memorandum untrue or that
<PAGE>
13
requires the making of any additions to or changes in the Offering Memorandum in
order to make the statements in the Offering Memorandum, in light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not misleading, or if it is necessary to amend
or supplement the Offering Memorandum to comply with any applicable laws, the
Company shall promptly notify you of such event and prepare an appropriate
amendment or supplement to the Offering Memorandum so that (i) the statements in
the Offering Memorandum as amended or supplemented will, in light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not be misleading and (ii) the Offering
Memorandum will comply with applicable law.
To cooperate with you and your counsel in connection with the
qualification of each tranche of the Series A Notes for offer and sale by you
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request (provided, however, that the Company shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which it is not now
so qualified or to take any action that would subject it to general consent to
service of process in any jurisdiction in which it is not now so subject or
subject itself to taxation in excess of a nominal amount in any such
jurisdiction where it is not then so subject). Subject to the provisions in the
first sentence of this Section 5(d), the Company shall continue such
qualification in effect so long as required by law for distribution of each
tranche of the Series A Notes.
Not to voluntarily claim the benefit of any usury law against the
holders of each tranche of the Series A Notes.
Prior to the Closing Date, to furnish to you, any internal
combined financial statements of the Company that have been prepared by the
Company for any period subsequent to the period covered by the financial
statements appearing in the Offering Memorandum.
To use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or after
the Closing Date and to satisfy all conditions precedent on its part to the
delivery of each tranche of the Series A Notes.
Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
would be integrated with the sale of either tranche of the Series A Notes in a
manner that would require the registration under the Securities Act of the sale
to you or the Eligible Purchasers of either tranche of Series A Notes.
For a period of 90 days from the date of the Offering Memorandum,
not to, directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
otherwise transfer or dispose of, any debt securities of the Company in a public
or private offering for cash having a maturity of more than one year from the
date of issue of such securities, except (i) for each tranche of the Series B
Notes in connection with the Exchange Offer or (ii) with the prior consent of
the Initial Purchaser, which consent shall not be unreasonably withheld.
For the period that is two years after the Closing Date or for so
long as necessary to comply with Rule 144A in connection with resales by
registered holders or beneficial owners of each tranche of Series A Notes,
whichever is longer, to make available to such registered holder or beneficial
owner of each tranche of Series A Notes in connection with any sale thereof and
any prospective purchaser of each tranche of such Series A Notes from such
registered holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act (or any successor provision thereto).
<PAGE>
14
To comply with its agreements in the Registration Rights
Agreements, and all agreements set forth in the representation letters of the
Company to DTC relating to the approval of each tranche of the Notes by DTC for
"book-entry" transfer.
To use its reasonable best efforts to effect the inclusion of
each tranche of the Notes in the National Association of Securities Dealers,
Inc. Automated Quotation System - PORTAL ("PORTAL").
To apply the net proceeds from the sale of each tranche of the
Series A Notes being sold by the Company as set forth in the Offering Memorandum
under the caption "Use of Proceeds."
During the period that is two years after the Closing Date, to
take such steps as shall be necessary to ensure that the Company does not become
an "investment company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the Commission thereunder.
EXPENSES. The Company agrees that, whether or not the
transactions contemplated by this Agreement are consummated or this Agreement
becomes effective or is terminated, to pay all costs, expenses, fees and taxes
incident to and in connection with: (i) the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum and the Offering Memorandum
(including, without limitation, financial statements) and all amendments and
supplements thereto (but not, however, legal fees and expenses of your counsel
incurred in connection therewith), (ii) the preparation, printing (including,
without limitation, word processing and duplication costs) and delivery of this
Agreement, the Indentures, any Blue Sky Memoranda and any other agreements,
memoranda, correspondence and other documents printed and delivered in
connection herewith and with the Exempt Resales (but not, however, legal fees
and expenses of your counsel incurred in connection with any of the foregoing
other than reasonable fees of such counsel plus reasonable disbursements
incurred in connection with the preparation, printing and delivery of such Blue
Sky Memoranda), (iii) the issuance and delivery by the Company of each tranche
of the Notes, (iv) the qualification of each tranche of the Notes for offer and
sale under the securities or Blue Sky laws of the several states (including,
without limitation, the reasonable fees and disbursements of your counsel
relating to such registration or qualification), (v) furnishing such copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and all
amendments and supplements thereto, as may be reasonably requested by the
Initial Purchaser for use in connection with the initial Exempt Resales, (vi)
the preparation of certificates for each tranche of the Notes including, without
limitation, printing and engraving, (vii) the fees, disbursements and expenses
of the Company's counsel and accountants, (viii) all expenses and listing fees
in connection with the application for quotation of each tranche of the Series A
Notes in PORTAL, (ix) all fees and expenses (including fees and expenses of
counsel) of the Company in connection with approval of each tranche of the Notes
by DTC for "book-entry" transfer and (x) the performance by the Company of its
other obligations under this Agreement to the extent not provided for above.
CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of
the Initial Purchaser hereunder are subject to the accuracy, when made and again
on the Closing Date (as if made again on and as of such date), of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
<PAGE>
15
The Offering Memorandum shall have been printed and copies made
available to you not later than 6:00 p.m., New York City time, on the Business
Day following the date of this Agreement, or at such later date and time as you
may approve in writing.
The Initial Purchaser shall not have discovered and disclosed to
the Company on or prior to such Closing Date that the Offering Memorandum or any
amendment or supplement thereto contains an untrue statement of a fact which, in
the opinion of Latham & Watkins, counsel for the Initial Purchaser, is material
or omits to state a fact which, in the opinion of such counsel, is material and
is necessary to make the statements, in the light of the circumstances under
which they were made, not misleading.
All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the other Operative
Documents, the Offering Memorandum and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Initial Purchaser, and
the Company shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
Simpson Thacher & Bartlett shall have furnished to the Initial
Purchaser, its written opinion, as counsel to the Company, addressed to the
Initial Purchaser and dated as of the Closing Date, substantially in the form of
Exhibit A hereto:
The Initial Purchaser shall have received from Latham & Watkins,
counsel for the Initial Purchaser, such opinion or opinions, dated as of the
Closing Date, with respect to the issuance and sale of each tranche of the
Series A Notes, the Offering Memorandum and other related matters as the Initial
Purchaser may reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
The Company shall have entered into the Senior Credit Facilities
and any Credit Documents and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
The Company and the Senior Note Trustee shall have entered into
the Senior Note Indenture and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
The Company and the Subordinated Note Trustee shall have entered
into the Subordinated Note Indenture and the Initial Purchaser shall have
received counterparts, conformed as executed, thereof.
The Company and the Initial Purchaser shall have entered into
each of the Senior Registration Rights Agreement and the Subordinated
Registration Rights Agreement and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
The Initial Purchaser shall have received from Ernst & Young LLP,
independent certified public accountants, letters addressed to the Initial
Purchaser, substantially in the form heretofore approved by the Initial
Purchaser, and dated the date hereof and the Closing Date, (i) confirming that
they are independent auditors as required by the Securities Act and its Rules
and Regulations, (ii) stating, as of the date of each letter (or, with respect
to matters involving changes or developments since the respective dates as of
which specified financial information is given in the Offering Memorandum, as of
a date not more than two Business Days prior to the date of each letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the letter delivered concurrently with this
Agreement and (iii) with respect to the letter delivered on the Closing Date,
<PAGE>
16
confirming in all material respects the conclusions and findings set forth in
the letter delivered concurrently with this Agreement.
The Company shall have furnished to the Initial Purchaser a
certificate, dated as of the Closing Date, of a Vice President and its Chief
Financial Officer or Treasurer stating that:
The representations, warranties and agreements of the
Company (after giving effect to all materiality qualifiers therein) in
Section 1 are true and correct as of such Closing Date and giving effect to
the consummation of the transactions contemplated by this Agreement; the
Company has complied in all material respects with all its agreements
contained herein; and the conditions set forth in Sections 7(l) and 7(n)
has been fulfilled; and
They have examined the Preliminary Offering Memorandum and
the Offering Memorandum and, in their opinion, the Preliminary Offering
Memorandum as of its date and the Offering Memorandum as of its date and
the Closing Date did not include any untrue statement of a material fact
and did not omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (ii) since the date of the Offering Memorandum, no event
has occurred which should have been set forth in a supplement or amendment
to the Offering Memorandum.
The Company shall not have sustained since the date of the latest
audited financial statements included in the Offering Memorandum any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company or
any Material Adverse Effect otherwise than as set forth or contemplated in the
Offering Memorandum, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Initial Purchaser, so material and
adverse as to make it impracticable or inadvisable to proceed with the payment
for and delivery of the Notes being delivered on such Closing Date on the terms
and in the manner contemplated in the Offering Memorandum.
Latham & Watkins shall have been furnished with such other
documents and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Agreement and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall
<PAGE>
17
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Initial Purchaser, impracticable or inadvisable to proceed with the public
offering or delivery of each tranche of the Notes being delivered on such
Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchaser.
INDEMNIFICATION AND CONTRIBUTION.
The Company agrees to indemnify and hold harmless the Initial
Purchaser, its officers and employees and each person, if any, who controls the
Initial Purchaser within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of either tranche of Notes), to which the
Initial Purchaser, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Offering Memorandum or the Offering Memorandum (in each case as amended or
supplemented), or (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum or the Offering Memorandum (in each case as
amended or supplemented) any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (iii) any act or failure to act or any alleged act or failure to
act by the Initial Purchaser in connection with, or relating in any manner to,
either tranche of the Notes or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clauses (i) or (ii) above
(provided that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by the Initial Purchaser through its gross negligence or willful misconduct);
and shall reimburse the Initial Purchaser and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Initial Purchaser, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Offering Memorandum or the
Offering Memorandum (in each case as amended or supplemented) in reliance upon
and in conformity with written information concerning the Initial Purchaser
furnished to the Company by or on behalf of the Initial Purchaser specifically
for inclusion therein; and provided further that with respect to any such untrue
statement or omission made in the Preliminary Offering Memorandum, the foregoing
indemnity shall not inure to the benefit of the Initial Purchaser (or any person
who controls the Initial Purchaser or any officer or director thereof) from whom
the person asserting such loss, claim, damage, liability or action purchased the
Notes, to the extent that such sale was an initial resale by the Initial
Purchaser and any such loss, claim, damage, liability or action of the Initial
Purchaser is a result of the fact that both (i) to the extent required by
applicable law, a copy of the Offering Memorandum was not sent or given to such
person at or prior to the written confirmation of the
<PAGE>
18
sale of such Securities to such person, and (ii) the untrue statement or
omission in the Preliminary Offering Memorandum was corrected in the Offering
Memorandum unless, in either case, such failure to deliver the Offering
Memorandum was a result of noncompliance by the Company with section 5(c). The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to the Initial Purchaser or to any officer, employee or
controlling person of the Initial Purchaser.
The Initial Purchaser shall indemnify and hold harmless the
Company, its officers and employees, each of its respective directors, and each
person, if any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such director,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering Memorandum or
the Offering Memorandum (in each case as amended or supplemented) or in any Blue
Sky application or (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum or the Offering Memorandum (in each case as
amended or supplemented) or in any Blue Sky application any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
the Initial Purchaser furnished to the Company by or on behalf of the Initial
Purchaser specifically for inclusion therein, and shall reimburse the Company
and any such director, officer, employee or controlling person for any legal or
other expenses reasonably incurred by the or any such director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which the Initial Purchaser may otherwise have to the Company or any
such director, officer, employee or controlling person.
Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Initial Purchaser shall have the right to employ one counsel to represent
jointly the Initial Purchaser and its respective officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Initial Purchaser against the
Company under this Section 8 if, in the reasonable judgment of outside counsel
to the Initial Purchaser, it is advisable for the Initial Purchaser, officers,
employees and controlling persons to be jointly represented by separate counsel,
and in that event the reasonable fees and expenses of such separate counsel
shall be paid by the Company. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
<PAGE>
19
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Initial Purchaser on the other
from the offering of each tranche of the Series A Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Initial Purchaser on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchaser on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of each tranche of the Series A Notes purchased under this Agreement (before
deducting expenses) received by the Company, on the one hand, and the total
discounts and commissions received by the Initial Purchaser with respect to each
tranche of the Series A Notes purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of each tranche of the Series
A Notes under this Agreement, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Initial Purchaser, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Initial Purchaser agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for purposes of
this Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which each tranche of the Series A Notes purchased
by it was resold to Eligible Purchasers exceeds the amount of any damages which
the Initial Purchaser has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The Initial Purchaser confirms and the Company acknowledges that
the last paragraph on the cover page, the stabilization legend on page iii and
the information contained in the second, fifth, sixth, seventh, ninth, tenth and
thirteenth paragraphs of the section entitled "Plan of
<PAGE>
20
Distribution" constitute the only information concerning the Initial Purchaser
furnished in writing to the Company by or on behalf of the Initial Purchaser
specifically for inclusion in the Preliminary Offering Memorandum or the
Offering Memorandum.
TERMINATION. The obligations of the Initial Purchaser hereunder
may be terminated by Lehman Brothers Inc. by notice given to the Company prior
to delivery of and payment for each tranche of the Series A Notes if, prior to
that time, any of the events described in Sections 7(l), 7(n) or 7(o) shall have
occurred or if the Initial Purchaser shall decline to purchase either tranche of
the Series A Notes for any reason permitted under this Agreement.
REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If the Company
shall fail to tender either tranche of the Series A Notes for delivery to the
Initial Purchaser by reason of any failure, refusal or inability on the part of
the Company to perform any agreement on its part to be performed, or because any
other condition of the Initial Purchaser's obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Initial Purchaser for all reasonable out-of-pocket expenses (including the
reasonable fees and disbursements of its counsel) (accompanied by documentation)
incurred by the Initial Purchaser in connection with this Agreement and the
proposed purchase of each tranche of the Series A Notes, and upon demand the
Company shall pay the full amount thereof to the Initial Purchaser.
NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
if to the Initial Purchaser, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax: 212-526-
6588), with a copy to Latham & Watkins, 885 Third Avenue, Suite 1000, New York,
New York 10022, Attention: Raymond Y. Lin (Fax: 212-751-4864); and
if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to P&L Coal Holdings Corporation, 701 Market Street, St.
Louis, Missouri, 63101, Attention: General Counsel (Fax: 314-342-3449), with a
copy to Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York
10017, Attention Rise B. Norman (Fax: 212-455-2502).
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made by the Initial
Purchaser. Any notice of a change of address or facsimile transmission number
must be given by the Company or by the Initial Purchaser, as the case may be, in
writing, at least three days in advance of such change.
PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (i) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Initial Purchaser within the meaning of Section
15 of the Securities Act and (ii) the representations, warranties, indemnities
and agreements of the Initial Purchaser contained in this Agreement shall be
deemed to be for the benefit of directors, officers and employees of the Company
and any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this
<PAGE>
21
Section 12, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Initial Purchaser and the Company contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Notes and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
DEFINITION OF THE TERMS "BUSINESS DAY." For purposes of this
Agreement, "BUSINESS DAY" means any day on which the New York Stock Exchange,
Inc. is open for trading.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature page(s) follow]
<PAGE>
1
If the foregoing correctly sets forth the agreement between the
Initial Purchaser and the Company, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
P&L Coal Holdings Corporation
By: _______________________________
Name:
Title:
Accepted:
Lehman Brothers Inc.
By: ____________________________
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF OPINION OF SIMPSON THACHER & BARTLETT TO BE DELIVERED AS OF THE CLOSING
DATE
<PAGE>
EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
P&L COAL HOLDINGS CORPORATION
-----------------------------
P&L COAL HOLDINGS CORPORATION (the "Corporation"), a corporation
organized and existing under the laws of the State of Delaware, DOES HEREBY
CERTIFY:
1. The name of the corporation is P&L Coal Holdings Corporation. The
date of the filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware was February 27, 1998 under the name
of P&L Coal Holdings Corporation.
2. This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with Sections 103, 242 and 245 of the General
Corporation Law of the State of Delaware. The Corporation has received payment
for its stock.
3. The Board of Directors of the Corporation, pursuant to a
unanimous written action in lieu of a meeting pursuant to Section 141(f) of the
General Corporation Law of the State of Delaware, adopted resolutions proposing
and declaring advisable that the Corporation amend and restate its Certificate
of Incorporation to read in its entirety as follows:
<PAGE>
FIRST: The name of the Corporation is P&L Coal Holdings Corporation.
SECOND: The registered office and registered agent of the Corporation
is The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of stock that the Corporation
shall have the authority to issue is 35,000,000 shares, consisting of 25,000,000
shares of Common Stock, par value $0.01 per share (the "Common Stock") and
10,000,000 shares of Non-Convertible, Exchangeable Preferred Stock, par value of
$0.01 per share (the "Preferred Stock"). Set forth below with respect to each
type of stock of the Corporation is a statement of the voting powers and the
designations, preferences, rights, qualifications, limitations and restrictions
thereof:
A. Common Stock.
------------
1. Voting Rights. Except as may otherwise be required by law, each
-------------
holder of Common Stock (together with the holders of any Preferred Stock)
shall have one vote in respect of each share of Common Stock held on all
matters voted upon by the stockholders of the Corporation.
2. Dividends. The holders of Common Stock (together with the holders
---------
of any Preferred Stock) shall be entitled to receive such dividends as may
be declared from time to time by the Board of Directors of the Corporation
ratably in proportion to the number of shares of Common Stock (and
Preferred Stock) held by them.
3. Distributions. Subject to the limitations set forth in Section
-------------
B.3 of this Article FOURTH, in the event of any Liquidation Event,
following Payment in Full of the Preference Amount to the holders of
Preferred Stock, the holders of Common Stock shall be entitled to receive
all of the remaining Available Assets ratably in proportion to the number
of shares of Common Stock held by them until they receive Payment in Full
of the Preference Amount. If such remaining Available Assets shall be
insufficient to distribute to the holders of shares of Common Stock the
Payment in Full of the Preference Amount to which they are entitled (after
Payment in Full of the Preference Amount to the holders of shares of
Preferred Stock), the holders of shares of Common Stock shall share ratably
in any distribution of Available Assets in proportion to the number of
shares of Common Stock held by them. After Payment in Full of the
Preference Amount to the holders of shares of Common Stock, the holders of
Common Stock shall be entitled
2
<PAGE>
(together with the holders of Preferred Stock) to receive any remaining
Available Assets ratably in proportion to the number of shares of Common
Stock (and Preferred Stock) held by them.
B. Preferred Stock. Subject to the limitations and modifications set
---------------
forth below, each share of Preferred Stock shall have the voting powers and the
designations, preferences, rights, qualifications, limitations and restrictions
of a share of Common Stock.
1. Voting Rights. Each holder of a share of Preferred Stock shall
-------------
have the same voting rights as the holder of a share of Common Stock, and
all holders of shares of Preferred Stock shall vote as a single class with
all holders of shares of Common Stock, and not as a separate class, upon
all matters in which the holders of the Common Stock are entitled to vote.
2. Dividends. The holders of the shares of Preferred Stock (together
---------
with the holders of any Common Stock) shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors of
the Corporation ratably in proportion to the number of shares of Preferred
Stock (and Common Stock) held by them.
3. Distributions. In the event of any Liquidation Event, the holders
-------------
of Preferred Stock shall be entitled to receive all of the Available Assets
ratably in proportion to the number of shares of Preferred Stock held by
them, in priority to any distribution to the holders of the Common Stock,
until such holders of Preferred Stock receive Payment in Full of the
Preference Amount. If the Available Assets shall be insufficient to
distribute to the holders of shares of Preferred Stock the Payment in Full
of the Preference Amount to which they are entitled, the holders of shares
of Preferred Stock shall share ratably in any distribution of Available
Assets in proportion to the number of shares of Preferred Stock held by
them. After Payment in Full of the Preference Amount to the holders of
shares of Preferred Stock pursuant to the foregoing provisions and to the
holders of shares of Common Stock pursuant to Section A.3 of this Article
FOURTH, the holders of Preferred Stock shall be entitled (together with the
holders of Common Stock) to receive any remaining Available Assets ratably
in proportion to the number of shares of Preferred Stock (and Common Stock)
held by them.
4. Exchange.
--------
a. At any time and from time to time, the Corporation may
exchange, at the option of the Corporation in its sole discretion, in
whole or in
3
<PAGE>
part, the shares of Preferred Stock, share for share, into shares of
Common Stock.
b. The Corporation may exercise the right to exchange shares of
Preferred Stock into shares of Common Stock by resolution of the Board
of Directors to that effect (which may specify an event or events upon
which such exercise and exchange will be effective).
c. On the date for the exchange of the shares of Preferred Stock
into shares of Common Stock (the "Exchange Date"), such shares of
Preferred Stock (the "Exchanged Shares") shall be exchanged, share for
share, for shares of Common Stock. As a condition of receipt of the
certificate or certificates representing such Common Stock, each
holder of Exchanged Shares must surrender the certificate or
certificates representing the Exchanged Shares to the Corporation.
Each surrendered certificate shall be canceled and retired promptly
after receipt by the Corporation and the capital stock evidenced
thereby may be reissued by the Corporation.
d. From and after the Exchange Date, (i) the rights of the
holders of Exchanged Shares in respect thereof will cease (other than
the right to receive any dividend or other distribution that has been
declared by the Board of Directors of the Corporation to be payable on
or following the Exchange Date to holders of record of Preferred Stock
on a date prior to the Exchange Date), (ii) the person or persons in
whose name or names the certificate or certificates for the Exchanged
Shares were issued shall be deemed to have become the holder or
holders of record of an equivalent number of shares of Common Stock
and (iii) any certificate or certificates representing Exchanged
Shares shall thereafter, and without any action on the part of the
holder thereof, be deemed to represent an equivalent number of shares
of Common Stock.
e. If the Corporation in any manner subdivides or combines the
outstanding shares of Common Stock or Preferred Stock, the outstanding
shares of the other class will be proportionately subdivided or
combined.
f. The Corporation shall at all times reserve and keep available
out of its authorized and unissued Common Stock, solely for the
purpose of effecting the exchange of the Preferred Stock, such number
of shares of Common Stock as shall from time to time be sufficient to
effect the exchange of all then outstanding shares of Preferred Stock.
The Corporation shall from time to time, subject to and in accordance
with the laws of Delaware, increase the authorized
4
<PAGE>
amount of Common Stock if at any time the number of authorized shares
of Common Stock remaining unissued shall not be sufficient to permit
the exchange at such time of all then outstanding shares of Preferred
Stock.
5. Redemption.
----------
a. At any time during the six-month period immediately following
the issuance of shares of Preferred Stock by the Corporation and from
time to time during such period, the Corporation may redeem, at the
option of the Corporation in its sole discretion, in whole or in part,
the shares of Preferred Stock for a price of $20 per share without
interest thereon (the "Redemption Price").
b. The Corporation may exercise the right to redeem shares of
Preferred Stock by resolution of the Board of Directors to that effect
(which may specify an event or events upon which such exercise and
redemption will be effective).
c. On the date for the redemption of the shares of Preferred
Stock (the "Redemption Date"), the full Redemption Price shall become
payable in cash for the shares of Preferred Stock being redeemed on
such Redemption Date (the "Redeemed Shares"). As a condition of
payment of the Redemption Price, each holder of Redeemed Shares must
surrender the certificate or certificates representing the Redeemed
Shares to the Corporation. Each surrendered certificate shall be
canceled and retired promptly after receipt by the Corporation and the
capital stock evidenced thereby may be reissued by the Corporation.
d. On the Redemption Date, unless the Corporation defaults in
the payment in full of the Redemption Price, all rights of holders of
the Redeemed Shares shall terminate (other than the right to receive
any dividend or other distribution that has been declared by the Board
of Directors of the Corporation to be payable on or following the
Redemption Date to holders of record of Preferred Stock on a date
prior to the Redemption Date and the right to receive the Redemption
Price).
e. If the Corporation in any manner subdivides or combines the
outstanding shares of Preferred Stock, the Redemption Price will be
adjusted proportionately.
C. Certain Definitions. For purposes of this Article FOURTH, the
-------------------
following terms shall have the following meanings:
5
<PAGE>
"Available Assets" means (i) in the case of a Business Combination,
----------------
all cash, securities and other assets to be received by stockholders of the
Corporation pursuant thereto and (ii) in the case of any other Liquidation
Event, all assets of the Corporation, tangible and intangible, of whatever
kind available for distribution to stockholders.
"Liquidation Event" means any of the following: (i) any voluntary or
-----------------
involuntary liquidation, dissolution or winding up of the Corporation, (ii)
any acquisition of the Corporation by means of merger or other form of
corporate reorganization in which outstanding shares of the Corporation are
exchanged for cash, securities or other consideration issued or given, or
caused to be issued or given, by the acquiring corporation or its
subsidiary (other than a mere reincorporation transaction) (a "Business
Combination"), or (iii) a sale or disposition by the Corporation or any
subsidiary of the Corporation, if any, of all or substantially all of the
assets of the Corporation or such subsidiary (if, with respect to such
subsidiary, the assets so sold would have constituted all or substantially
all of the assets of the Corporation if the assets were held directly by
the Corporation).
"Payment in Full of the Preference Amount" is deemed to have been made
----------------------------------------
at such time as the holders of the shares of Preferred Stock or Common
Stock, as the case may be, shall have received in respect of each such
share an aggregate amount of cash, or securities or other assets, or any
combination thereof, with a fair market value equal to $20 in connection
with a Liquidation Event (without giving effect to prior unrelated
dividends or distributions), and in the event that the Corporation in any
manner subdivides or combines the outstanding shares of Common Stock or
Preferred Stock, such Payment in Full of the Preference Amount shall be
adjusted accordingly.
FIFTH: The Board of Directors of the Corporation, acting by the
affirmative vote of a majority of the directors then in office, may alter, amend
or repeal the Bylaws of the Corporation.
SIXTH: The number of directors of the Corporation shall be determined
in the manner provided in the Bylaws of the Corporation.
SEVENTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law, as the same exists or hereafter
6
<PAGE>
may be amended, or (iv) for any transaction from which the director derived an
improper personal benefit. If the General Corporation Law hereafter is amended
to authorize the further elimination or limitation of the liability of the
directors, then the liability of a director shall be eliminated or limited to
the fullest extent permitted by the amended General Corporation Law. In
addition to the limitation on personal liability of directors provided herein,
the Corporation shall, to the fullest extent permitted by the General
Corporation Law: (x) indemnify its officers and directors and (y) advance
expenses incurred by such officers or directors in relation to any action, suit
or proceeding. Any repeal or modification of this paragraph by the stockholders
of the Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability or right to indemnification or advancement
of expenses hereunder existing at the time of such repeal or modification.
EIGHTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws of the Corporation may provide. The books of
the Corporation may be kept outside the State of Delaware at such place or
places as may be designated by the Board of Directors or in the Bylaws of the
Corporation.
NINTH: Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of the directors of the Corporation
need not be by written ballot.
TENTH: Notwithstanding the provisions of Section 228 of the General
Corporation Law of the State of Delaware, the stockholders of the Corporation
may take action by written consent only if all of the stockholders entitled to
vote on the matter sign such consent. This Article TENTH may not be amended
without the unanimous consent of all stockholders entitled to vote on the
matter.
ELEVENTH: Each person who is or was or had agreed to become a
director or officer of the Corporation, or each such person who is or was
serving or who had agreed to serve at the request of the Board of Directors or
an officer of the Corporation as an employee or agent of the Corporation or as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person), shall be indemnified by the
Corporation to the fullest extent permitted by the General Corporation Law of
the State of Delaware or any other applicable law as presently or hereafter in
effect. Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person which provide
for indemnification greater or different than that provided in this Article
ELEVENTH. Any repeal or modification of this Article ELEVENTH shall not
adversely affect any right or protection existing hereunder immediately prior to
such repeal or modification.
7
<PAGE>
4. In Lieu of a meeting and vote of the stockholders, the
stockholders have given written consent to such amendment and restatement of the
Certificate of Incorporation of the Corporation in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation this 14th day of May 1998.
P&L COAL HOLDINGS CORPORATION
By /s/ Henry E. Lentz
--------------------------------
Name: Henry E. Lentz
Title: Director and President
8
<PAGE>
EXHIBIT 3.2
P&L COAL HOLDINGS CORPORATION
BY-LAWS
ARTICLE I
MEETING OF STOCKHOLDERS
-----------------------
Section 1. Place of Meeting and Notice. Meetings of the stockholders
---------------------------
of the Corporation shall be held at such place either within or without the
State of Delaware as the Board of Directors may determine.
Section 2. Annual and Special Meetings. Annual meetings of
---------------------------
stockholders shall be held, at a date, time and place fixed by the Board of
Directors and stated in the notice of meeting, to elect a Board of Directors and
to transact such other business as may properly come before the meeting.
Special meetings of the stockholders may be called by the President or any Vice
President for any purpose and shall be called by the President or Secretary if
directed by the Board of Directors or requested in writing by the holders of not
less than 25% of the capital stock of the Corporation. Each such stockholder
request shall state the purpose of the proposed meeting.
Section 3. Notice. Except as otherwise provided by law, at least ten
------
and not more than 60 days before each meeting of stockholders, written notice of
the time, date and place of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be given to each
stockholder.
Section 4. Quorum. At any meeting of stockholders, the holders of
------
record, present in person or by proxy, of a majority of the Corporation's issued
and outstanding capital stock shall constitute a quorum for the transaction of
business, except as otherwise provided by law. In the absence of a quorum, any
officer entitled to preside at or to act as secretary of the meeting shall have
power to adjourn the meeting from time to time until a quorum is present.
Section 5. Voting. Except as otherwise provided by law, all matters
------
submitted to a meeting of stockholders shall be decided by vote of the holders
of record of a majority of the Corporation's issued and outstanding capital
stock present in person or by proxy.
<PAGE>
ARTICLE II
DIRECTORS
---------
Section 1. Number, Election and Removal of Directors. The number of
-----------------------------------------
Directors that shall constitute the Board of Directors shall be not less than
one nor more than 15. The first Board of Directors shall consist of one
Director. Thereafter, within the limits specified above, the number of
Directors shall be determined by the Board of Directors or by the stockholders.
The Directors shall be elected by the stockholders at their annual meeting.
Vacancies and newly created directorships resulting from any increase in the
number of Directors may be filled by a majority of the Directors then in office,
although less than a quorum, or by the sole remaining Director or by the
stockholders. A Director may be removed with or without cause by the
stockholders.
Section 2. Meetings. Regular meetings of the Board of Directors
--------
shall be held at such times and places as may from time to time be fixed by the
Board of Directors or as may be specified in a notice of meeting. Special
meetings of the Board of Directors may be held at any time upon the call of the
President and shall be called by the President or Secretary if directed by a
majority of the Directors. Telegraphic or written notice of each special
meeting of the Board of Directors shall be sent to each Director not less than
two days before such meeting. A meeting of the Board of Directors may be held
without notice immediately after the annual meeting of the stockholders. Notice
need not be given of regular meetings of the Board of Directors.
Section 3. Quorum. One-third of the total number of Directors shall
------
constitute a quorum for the transaction of business. If a quorum is not present
at any meeting of the Board of Directors, the Directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until such a quorum is present. Except as otherwise provided by law,
the Certificate of Incorporation of the Corporation, these By-Laws or any
contract or agreement to which the Corporation is a party, the act of a majority
of the Directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors.
Section 4. Committees of Directors. The Board of Directors may, by
-----------------------
resolution adopted by a majority of the whole Board, designate one or more
committees, including without limitation an Executive Committee, to have and
exercise such power and authority as the Board of Directors shall specify. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another Director
to act at the meeting in place of any such absent or disqualified member.
2
<PAGE>
ARTICLE III
OFFICERS
--------
The officers of the Corporation shall consist of a President, one or
more Vice Presidents, a Secretary, a Treasurer and such other additional
officers with such titles as the Board of Directors shall determine, all of whom
shall be chosen by and shall serve at the pleasure of the Board of Directors.
Such officers shall have the usual powers and shall perform all the usual duties
incident to their respective offices. All officers shall be subject to the
supervision and direction of the Board of Directors. The authority, duties or
responsibilities of any officer of the Corporation may be suspended by the
President with or without cause. Any officer elected or appointed by the Board
of Directors may be removed by the Board of Directors with or without cause.
ARTICLE IV
INDEMNIFICATION
---------------
To the fullest extent permitted by the Delaware General Corporation
Law, the Corporation shall indemnify any current or former Director or officer
of the Corporation and may, at the discretion of the Board of Directors,
indemnify any current or former employee or agent of the Corporation against all
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding brought by or in the right of the
Corporation or otherwise, to which he was or is a party or is threatened to be
made a party by reason of his current or former position with the Corporation or
by reason of the fact that he is or was serving, at the request of the
Corporation, as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.
ARTICLE V
GENERAL PROVISIONS
------------------
Section 1. Notices. Whenever any statute, the Certificate of
-------
Incorporation or these By-Laws require notice to be given to any Director or
stockholder, such notice may be given in writing by mail, addressed to such
Director or stockholder at his address as it appears on the records of the
Corporation, with postage thereon prepaid. Such notice shall be deemed to have
been given when it is deposited in the United States mail. Notice to Directors
may also be given by telegram.
3
<PAGE>
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
-----------
fixed by the Board of Directors.
4
<PAGE>
EXHIBIT 3.3
I. The undersigned agree to become a corporation by the name of
AFFINITY MINING COMPANY
II. The principal place of business of the corporation shall be
located at 1302 South Eisenhower Drive, in the City of Beckley, P.O. Box 1065,
in the County of Raleigh, and State of West Virginia, (25801), and its chief
works shall be located in said Raleigh County, State of West Virginia, and
elsewhere in the State of West Virginia. The Corporation may transact business
and have an office or offices at any other place or places as may be provided by
its By-Laws.
III. The objects and purposes for which the corporation is formed are
as follows:
To mine, sell, purchase, deal in, export, or import coal, coke and
wood and other similar combustible material, and to purchase, lease and sell
coal lands, coal rights, coal and timber lands and to manufacture, buy, sell and
deal in or deal with coal and coke and all products and by-products of any such
lands, rights and materials.
To purchase or otherwise acquire, and to hold, own, maintain, work and
develop, and to sell, lease, convey, mortgage or otherwise dispose of, within or
without the State of West Virginia, and in any part of the world, lands and
leaseholds and any interest, estate and rights in real property, and in personal
or mixed property, or any franchises, rights, licenses of
<PAGE>
privileges necessary, convenient or appropriate for any of the purposes herein
expressed.
To acquire, own, lease, mortgage, occupy, sell, use or develop any
lands containing coal, iron manganese, or other ores or oil and gas and any
woodlands or other lands, for any purpose of the company, and to mine, or
otherwise to extract or remove, coal, oil, gas, ores or other minerals, and to
take or remove such minerals from any lands owned, acquired, leased or occupied
by the corporation or from any other lands, and to buy and sell, import and
export, or otherwise to deal or to traffic in or to use or consume coal, coke,
oil, gas, wood, lumber and other materials or ores and any part of the products
thereof, and any articles consisting, or partly consisting thereof.
To manufacture or otherwise produce, import, export, buy, sell, and in
every way deal with and in, either as principal or agent or otherwise, goods,
wares and merchandise and personal property of every kind and description.
To purchase, lease, erect, or otherwise acquire, exchange, sell, let
or otherwise dispose of, own, maintain, develop and improve any and all
property, real or personal, mines, coke ovens, plants, oil and gas wells,
depots, factories, warehouses, stores, buildings or otherwise useful in
connection with the business of the corporation.
To apply for, obtain, purchase or otherwise acquire any and all
patents, patent rights, copyrights, licenses and privileges, inventions,
improvements and processes, trade-marks, trade names, labels, designs, and
brands relating to or useful in
2
<PAGE>
connection with any business of the corporation; and to use, exercise, develop,
grant licenses in respect of, sell, traffic in and exchange the same.
To subscribe to, purchase, acquire, hold, own, invest in, assign,
pledge or otherwise dispose of or deal in the stocks, bonds and other securities
and obligations of any other corporation, domestic or foreign, and issue in
exchange therefor its stock, bonds, or other obligations, and while the owner of
any such stock, bonds or other obligations, to possess and exercise in respect
thereof all the rights, powers and privileges of individual owners thereof,
including any and all voting powers.
To acquire the good will, rights and property, and to undertake the
whole or any part of the assets and liabilities, of any person, firm,
association or corporation and to pay for the same in cash, stock or bonds of
this corporation or otherwise, and to issue its stock or bonds in whole or
fractional shares thereof in payment of real and personal property for its use
and for its other corporate purposes and business upon such terms and conditions
as may be agreed upon by the owners and the directors or stockholders of this
corporation.
To borrow money for the purposes of the corporation and to issue
bonds, notes, debentures and other obligations and to secure the same by pledge
or mortgage of the whole or any part of the property of the corporation, either
real or personal, or to issue bonds, notes, debentures or other obligations
without any such security, and to sell or pledge such bonds, notes or other
3
<PAGE>
obligations; and to confer upon the holder of any bonds, notes, debentures and
other obligations of the corporation, secured or unsecured, the right to convert
the same into stock of the corporation.
To conduct its business so far as permitted by law, in the State of
West Virginia and in other states of the United States of America and in the
territories and the District of Columbia, and in any and all dependencies or
possessions of the United States and in foreign countries.
The foregoing clauses in this Article shall be construed as stating
both purposes and powers. It is the intention that the purposes and powers
specified in said clauses shall be in no wise limited or restricted by reference
to or inference from the terms of any other clause of this or any other Article
in this certificate, but that the purposes and powers specified in each of the
clauses of this Article shall be regarded as independent and cumulative purposes
and powers.
IV. The amount of the total authorized capital stock of said
corporation shall be Five Thousand (5,000) shares of common stock of a par value
of One Dollar ($1.00) per share.
The amount of capital with which the corporation will commence
business in One Thousand Dollars ($1,000.00).
V. Ownership of any class of shares of stock of the corporation
shall not entitle the holders thereof to any preemptive rights to subscribe for
or purchase or to have offered to them for subscription or purchase any new or
additional share or shares of stock of any class, or any options, bonds,
4
<PAGE>
debentures, warrants, certificates of indebtedness or other securities
convertible into or representing, the right to purchase shares of any class of
stock, either of that authorized in the Certificate of Incorporation or
thereafter authorized or any shares or securities convertible into shares
however acquired, issued or sold by the corporation, it being the purpose and
intent that the Board of Directors shall have full right, power and authority to
offer for subscription or sale or to make any disposal of any or all unissued
shares of any class of stock of the corporation or any or all shares issued and
thereafter acquired by the corporation or any and all options, bonds,
debentures, warrants, certificates of indebtedness or other securities of the
corporation convertible into stock whether unissued or issued and reacquired by
the corporation as the Board of Directors in its discretion may deem advisable.
VI. At all elections of Directors each stockholder shall be
entitled to as many votes as shall equal the number of votes which (except for
the provisions of this Article VI) such stockholder would be entitled to cast
for the election of Directors with respect to such shares multiplied by the
number of Directors to be elected, and such stockholder may cast all of his
votes for a single director or may distribute them upon the number to be voted
for, or any two or more of them, as he may see fit.
VII. This corporation shall have perpetual existence.
VIII. The number of directors, who need not be stockholders or
residents of the State of West Virginia, shall be
5
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not less than three (3) nor more than twenty (20), as determined in the By-Laws
of this corporation.
IX. The names and post office addresses of the incorporators and the
number of shares of stock subscribed for by each are as follows:
Number of
Names P. O. Addresses Shares
----- --------------- ---------
R. H. Freeman Washington Plaza Apartments 1
1420 Centre Avenue
Pittsburgh, Pennsylvania
C. A. Stefl 4750 South Emblem Drive 1
Pittsburgh, Pennsylvania
D. B. Shupe 2701 West Munroe Street 1
Bethel Park, Pennsylvania
X. The following provisions are inserted for the regulation and
conduct of the affairs of the corporation and it is expressly provided that they
are intended to be in furtherance and not in limitation or exclusion of the
powers conferred by statute:
(a) Meetings of the stockholders and directors of the corporation for
all purposes may be held at its office or elsewhere in the State of
WestVirginia, and meetings of the directors and stockholders may be held outside
of the State of West Virginia at such place or places as may from time to time
be designated in the By-Laws, or by resolution of the Board of Directors.
(b) All corporate powers except those which by law expressly require
the consent of the stockholders shall be exercised by the Board of Directors.
6
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(c) The Board of Directors shall have power from time to time to fix
and determine and vary the amount of the corporation's funds to be reserved for
any proper purpose and to direct and determine the use and disposition of any
surplus over and above its capital. In its discretion the Board of Directors may
use and apply any such surplus in purchasing or acquiring bonds or other
obligations of the corporation or shares of its own capital stock to such extent
and in such manner and upon such terms as the Board of Directors shall deem
expedient. If any shares of stock of the corporation shall have been purchased
or otherwise acquired by the corporation, the Board of Directors may, without
action by the stockholders, at any time or from time to time, restore all or
part of said shares to the status of authorized but unissued shares; provided
that nothing herein contained shall be deemed to limit the right of the Board of
Directors to cause the corporation to hold any such shares as treasury stock and
to sell or otherwise deal with such treasury stock as the Board of Directors
shall deem expedient. Any shares restored to the status of authorized but
unissued shares as hereinabove provided may be issued to the same extent and
subject to the same conditions as if such shares had not been previously issued.
Whenever shares are restored as hereinabove provided, any resulting surplus may
be used for such lawful purposes as shall be determined by the Board of
Directors.
(d) Subject always to By-Laws made by the stockholders, the Board of
Directors may make By-Laws and from time to time may alter, amend or repeal any
By-Laws, but any By-
7
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Laws made by the Board of Directors may be altered or repealed by the
stockholders.
(e) The Board of Directors shall have power to the extent permitted
by law to make distributions or pay dividends to its stockholders in cash or in
property including, but not limited to, stocks, bonds or other securities of the
corporation.
(f) No contract or other transaction between the corporation and any
other corporation shall be affected or invalidated by the fact that any one or
more of the directors of this corporation is or are interested in, or is a
director or officer, or are directors of officers of such other corporation, and
any director or directors, individually or jointly, may be a party or parties to
or may be interested in any contract or transaction of this corporation or in
which this corporation is interested; and no contract, act or transaction of
this corporation with any persons, firms or corporations, shall be affected or
invalidated by the fact that any director or directors of this corporation is a
party, or are parties to or interested in such contract, act or transaction, or
in any way connected with such persons, firms or corporation, and each and every
person who may become a director of this corporation is hereby relieved from any
liability that might otherwise exist from contracting with the corporation for
the benefit of himself or any firm or corporation in which he may be in any wise
interested.
(g) Any person made a party to any action, suit or proceeding by
reason of the fact that he, his testator or
8
<PAGE>
intestate, is or was a director, officer or employee of the corporation or of
any corporation which he served as such at the request of this corporation,
shall be indemnified by this corporation against the reasonable expenses,
including attorney's fees actually and necessarily incurred by him in connection
with the defense of such action, suit or proceeding, or in connection with any
appeal therein, except in relation to matters as to which it shall be adjudged
in such action, suit or proceeding that such officer, director or employee is
liable for negligence or misconduct in the performance of his duties, provided,
however, that if any such amount is paid otherwise than pursuant to court order
or action by the stockholders, the corporation shall within eighteen (18) months
from the date of such payment mail to its stockholders at the time entitled to
vote for the election of directors a statement specifying the person paid, the
amount of the payment and the final disposition of the litigation. Except as
otherwise provided by law, and in addition to any other rights provided by law,
any such person shall be entitled, without demand by him upon the corporation,
or any action by the corporation, to enforce the right of indemnification or
reimbursement hereinabove provided in an action at law against the corporation.
The right of indemnification or reimbursement hereinabove provided or under any
applicable statutes shall not be deemed exclusive of any other right to which
any such person may now or hereafter be otherwise entitled.
9
<PAGE>
XI. The following person prepared this agreement:
DaCosta Smith, Jr., Esq.
Weston, West Virginia
WE, THE UNDERSIGNED, for the purposes of forming a Corporation under
the laws of the State of West Virginia do make and file this Agreement; and we
have accordingly hereunto set our respective hands this 10th day of July, 1970.
/s/ R. H. Freeman
-----------------------------
R. H. Freeman
/s/ C. A. Stefl
-----------------------------
C. A. Stefl
/s/ D. B. Shupe
-----------------------------
D. B. Shupe
10
<PAGE>
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF ALLEGHENY )
I, Mary Sipula, a Notary Public in and for the County and State
aforesaid, hereby certify that
R. H. Freeman /s/ R. H. Freeman
-----------------------------
C. A. Stefl /s/ C. A. Stefl
-----------------------------
D. B. Shupe /s/ D. B. Shupe
-----------------------------
whose names are signed to the foregoing agreement bearing date on the 10th day
of July, 1970, this day personally appeared before me in my said county and
severally acknowledged their signatures to the same.
Given under my hand and official seal this 24th day of July, 1970.
/s/ Mary Sipula
-----------------------------
Notary Public
My commission expires on the 4th day of March, 1972.
11
<PAGE>
EXHIBIT 3.4
BY-LAWS Of
AFFINITY MINING COMPANY
----------------------
ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. Annual Meeting. The annual meeting of stockholders shall
--------------
be held on the second Wednesday of April in each year, beginning in the year
1971 (or, if that be a legal holiday, on the next succeeding business day) at
three o'clock in the afternoon or at such other hour as may from time to time be
designated by the Board of Directors and specified in the notice of the meeting.
SECTION 2. Special Meetings. Special meetings of the stockholders
----------------
for any purpose or purposes may be called by the President or by order of the
Board of Directors, and it shall be the duty of the Secretary to call such a
meeting upon a request in writing therefor stating the purpose or purposes
thereof, delivered to the Secretary, signed by the holders of record of not less
than one-tenth of the outstanding capital stock of the corporation.
SECTION 3. Place of Meeting. Meetings of the stockholders may be
----------------
held at its principal office in Beckley, West Virginia, or elsewhere within the
State of West Virginia, or may be held outside the State of West Virginia at
such place or places as the Board of Directors may from time to time determine.
SECTION 4. Notice of Stockholders' Meeting. Notice of the annual and
-------------------------------
of any special meeting of stockholders shall be given to each stockholder of
record at least ten and not more than forty days before the meeting by
personally delivering to such stockholder or by depositing in the United States
mails, addressed to the address last left by such stockholder with the Transfer
Agent, or in the absence of a Transfer Agent, the Registrar, or in the absence
of a Transfer Agent and a Registrar, the Secretary of the corporation, a written
or printed notice, signed by the President or a Vice President or the Secretary
or an Assistant Secretary, stating the place, day and hour of the meeting and
the purpose or purposes for which the meeting is called, and any such notice
shall be deemed given when personally delivered or deposited postage prepaid in
the United States mail. Any stockholder, or his attorney hereunto authorized,
may waive notice of any meeting either before, at or after the meeting.
SECTION 5. Quorum. At all meetings of stockholders the holders of
------
record of a majority of the issued and outstanding capital stock of the
corporation, present in person or by proxy, shall constitute a quorum for the
transaction of business. In the
<PAGE>
absence of a quorum, a majority in interest of those present or represented may
adjourn the meeting by resolution to a date fixed therein, and no further notice
thereof shall be required. At any such adjourned meeting at which a quorum may
be present, any business may be transacted which might have been transacted at
the meeting as originally called.
SECTION 6. Voting. At each meeting of the stockholders every
------
stockholder holding one or more shares of the capital stock of the corporation
shall be entitled to one vote for each such share registered in his name on the
books of the corporation at the time of the closing of the transfer books of the
corporation for such meeting or on the record date therefor, as the case may be,
except that, in the case of an election of directors, each stockholder shall be
entitled to as many votes as shall equal the number of votes which (except for
this cumulative voting provision) such stockholder would be entitled to cast for
the election of directors with respect to his shares of stock, multiplied by the
number of directors to be elected, and such stockholder may cast all of such
votes for a single director or may distribute them among the number to be voted
for, or any two or more of them, as he may see fit. Except for the election of
directors, all resolutions shall be adopted by a majority of votes properly cast
at the meeting; at elections of directors, those nominees up to the number to be
elected, receiving the largest number of votes shall be deemed elected. All
elections for directors shall be by ballot, but this requirement shall be deemed
to have been waived if at the meeting no stockholder shall demand a ballot vote.
SECTION 7. Proxies. Every stockholder entitled to vote at any
-------
meeting of stockholders may vote by proxy. Every proxy must be executed in
writing by the stockholder or by his duly authorized attorney. No proxy shall be
voted after the expiration of three years from the date of its execution unless
the stockholder executing it shall have specified a longer duration, and then
only within the period specified. Every proxy shall be revocable at the pleasure
of the person executing it or of his personal representatives or assigns except
as otherwise provided by law.
SECTION 8. Inspectors of Election. Two inspectors of election, who
----------------------
shall act as such at elections of directors, shall be elected by and shall serve
at the pleasure of the Board of Directors. If one or both of such inspectors
fails to appear at any meeting for the election of directors, the Chairman of
the meeting may appoint a substitute or substitutes to act at such meeting in
place of such absent inspector or inspectors. Each inspector shall be entitled
to a reasonable compensation for his services, to be paid by the corporation.
The inspectors, before entering upon the discharge of their duties, shall be
sworn faithfully to execute the duties of inspectors at such meeting with strict
impartiality and according to the best of their ability, and the oath so taken
shall be subscribed by them.
2
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Powers. The property, affairs and business of the
--------------
corporation shall be managed by the Board of Directors.
SECTION 2. Number. The number of directors shall be not less than
------
three (3) nor more than twenty (20), as may be determined from time to time by
the Board of Directors.
SECTION 3. Term of Office and Qualification. Directors need not be
--------------------------------
stockholders and shall be elected to serve until the next annual election of
directors and until their successors are elected and shall have qualified.
SECTION 4. Chairman of the Board. The Board of Directors may elect a
---------------------
Chairman of the Board from among its members to serve at its pleasure, who shall
preside at all meetings of the Board of Directors and shall have such other
duties as from time to time may be assigned to him by the Board of Directors or
by the Executive Committee.
SECTION 5. Vacancies. Vacancies in the Board of Directors because of
---------
death, resignation, disqualification, physical or mental incapacity to act, an
increase in the number of members of the Board of Directors, or resulting from
any other cause whatsoever, shall be filled for the unexpired portion of the
term by a majority vote of the remaining directors, although less than a quorum,
given at a regular meeting, or at a special meeting called for the purpose.
SECTION 6. Place of Meeting. The Board of Directors shall hold its
----------------
meetings at such places within or without the State of West Virginia as it may
decide.
SECTION 7. Regular Meetings: Notice. The Board of Directors by
------------------------
resolution may establish regular periodic meetings and notice of such meetings
need not be given.
SECTION 8. Special Meetings. Special meetings of the Board of
----------------
Directors shall be called by the Secretary or an Assistant Secretary whenever
ordered by the Board of Directors or requested in writing by the President or
any two other directors. Such meetings shall be held at the principal office of
the corporation unless the Board of Directors, by its order calling a special
meeting, shall fix a different place for such meeting. Notice of each special
meeting shall be mailed to each director, addressed to his residence or usual
place of business, at least four days before the day on which the meeting is to
be held, or shall be sent to such address by telegraph, or be given personally
or by telephone, not later than two days before the day on which the meeting is
to be held. Notice of any meeting may
3
<PAGE>
be waived in writing by any director before, at or after the meeting.
SECTION 9. Quorum and Manner of Acting. A majority of the members of
---------------------------
the Board of Directors then in office shall constitute a quorum for the
transaction of any business at any meeting of the Board of Directors and, except
as herein otherwise provided, the act of a majority of those present at the
meeting at which a quorum is present shall be the act of the Board of Directors.
In the absence of a quorum of the Board of Directors a majority of the members
present may adjourn the meeting from time to time until a quorum be had, and no
notice of any such adjournment need be given.
SECTION 10. Fees. The Board of Directors may from time to time
----
prescribe reasonable fees for attendance by members of the Board of Directors
and members of the Executive Committee and other committees, and for
reimbursement for travel and other expenses incidental to such attendance.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. How Constituted and the Powers Thereof. The Board of
--------------------------------------
Directors by the vote of a majority of the entire Board, may designate three or
more directors to constitute an Executive Committee, who shall serve during the
pleasure of the Board of Directors. Except as otherwise provided by law, by
these by-laws or by resolution adopted by a majority of the whole Board of
Directors, the Executive Committee shall possess and may exercise during the
intervals between the meetings of the directors, all of the powers of the Board
of Directors in the management of the business, affairs and property of the
corporation, including the power to cause the seal of the corporation to be
affixed to all papers that may require it.
SECTION 2. Organization, etc. The Executive Committee shall choose
------------------
its own Chairman and its Secretary and may adopt rules for its procedure. The
Committee shall keep a record of its acts and proceedings and report the same
from time to time to the Board of Directors.
SECTION 3. Meetings. Meetings of the Executive Committee may be
--------
called by the Chairman of the Committee, and shall be called by him at the
request of any member of the Committee, or by any member if there shall be no
Chairman. Notice of each meeting of the Committee shall be sent to each member
of the Committee by mail at least two days before the meeting is to be held, or
given personally or by telegraph or telephone at least one day before the day on
which the meeting is to be held. Notice of any meeting may be waived before, at
or after the meeting.
4
<PAGE>
SECTION 4. Quorum and Manner of Acting. A majority of the Executive
---------------------------
Committee shall constitute a quorum for the transaction of business, and the act
of a majority of those present at the meeting at which a quorum is present shall
be the act of the Executive Committee.
SECTION 5. Removal. Any member of the Executive Committee may be
-------
removed, with or without cause, at any time, by the Board of Directors.
SECTION 6. Vacancies. Any vacancy in the Executive Committee shall
---------
be filled by the Board of Directors.
SECTION 7. Other Committees. The Board of Directors or the Executive
----------------
Committee may by resolution provide for such other standing or special
committees as it deems desirable, and discontinue the same at pleasure. Each
committee shall have such powers and perform such duties, not inconsistent with
law, as may be assigned to it by the Board of Directors or by the Executive
Committee.
ARTICLE IV
OFFICES AND OFFICERS
SECTION 1. Officers--Number. The officers of the corporation shall
----------------
be the Chairman, the President, one or more Vice Presidents as the Board of
Directors or Executive Committee may determine, a Treasurer and a Secretary. The
Board of Directors or Executive Committee may from time to time appoint one or
more Assistant Secretaries and Assistant Treasurers. The same person may hold
any two or more offices except those of President and Vice-President. No officer
except the President need be a member of the Board of Directors.
SECTION 2. Salaries. The Board of Directors or Executive Committee
--------
may from time to time fix the salary of the President, as well as the salaries
of other officers of the corporation.
SECTION 3. Election, Term of Office and Qualification. All officers
------------------------------------------
of the corporation shall be elected annually (unless otherwise specified at the
time of election) by the Board of Directors or Executive Committee and each
officer shall hold office until his successor shall have been duly chosen and
shall have qualified, or until he shall resign or shall have been re moved in
the manner hereinafter provided.
SECTION 4. Vacancies. If any vacancy shall occur in any office of
---------
the corporation, such vacancy shall be filled by the Board of Directors or by
the Executive Committee.
SECTION 5. Other Officers, Agents and Employees. The Board of
------------------------------------
Directors or the Executive Committee may from time to
5
<PAGE>
time appoint such other officers, agents and employees of the corporation as may
be deemed proper, and may authorize any officer to appoint and remove agents and
employees. The Board of Directors or the Executive Committee or the President
may from time to time prescribe the powers and duties of such officers, agents
and employees of the corporation in the management of its property, affairs and
business.
SECTION 6. Removal. Any officer of the corporation may be removed,
-------
either with or without cause, by vote of a majority of the Board of Directors or
of the Executive Committee, or, in the case of any officer, agent or employee
not elected by the Board of Directors or the Executive Committee, by any
committee or superior officer upon whom such power of removal may be conferred
by the Board of Directors or by the Executive Committee.
SECTION 7. Chairman. The Chairman shall preside at all meetings of
--------
the stockholders and of the Board of Directors, and shall perform such other
duties as shall be delegated to him at any time or from time to time by the
Board of Directors.
SECTION 8. President. The President shall be the chief executive
---------
officer of the corporation and shall have general direction of its business,
affairs and property and over its several officers. He shall see that all orders
and resolutions of the Board of Directors and of the Executive Committee are
carried into effect, and he shall have the power to execute in the name of the
corporation all authorized deeds, mortgages, ship mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof
shall have been expressly delegated to some other officer or agent of the
corporation; and in general, he shall perform all duties, incident to the office
of a president of a corporation, and such other duties as from time to time may
be assigned to him by the Board of Directors or by the Executive Committee. He
shall be ex officio a member of all committees. He shall from time to time
report to the Board of Directors or to the Executive Committee all matters
within his knowledge which the interest of the corporation may require to be
brought to their notice.
SECTION 9. Vice-Presidents. The Vice-President or Vice-Presidents of
---------------
the corporation, under the direction of the President, shall have such powers
and perform such duties as the Board of Directors or Executive Committee or
President may from time to time prescribe, and shall perform such other duties
as may be prescribed in these by-laws. In case of the absence or inability of
the President to act, then the Vice-Presidents, in the order designated therefor
by the Board of Directors or Executive Committee, shall have the powers and
discharge the duties of the President.
6
<PAGE>
SECTION 10. Treasurer. The Treasurer, under the direction of the
---------
President, shall have charge of the funds, securities, receipts and
disbursements of the corporation. He shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such banks or trust
companies or with such other depositories as the Board of Directors or Executive
Committee may from time to time designate. He shall supervise and have charge of
keeping correct books of account of all the corporation's business and
transactions. If required by the Board of Directors, he shall give a bond in
such sum as the Board of Directors or Executive Committee may designate,
conditioned upon the faithful performance of the duties of his office and the
restoration to the corporation, at the expiration of his term of office, or in
case of his death, resignation or removal from office, of all books, papers,
vouchers, money or other property of whatever kind in his possession belonging
to the corporation. He shall also have such other powers and perform such other
duties as pertain to his office, or as the Board of Directors or the Executive
Committee or the President may from time to time prescribe.
SECTION 11. Assistant Treasurers. In the absence of or disability of
--------------------
the Treasurer, the Assistant Treasurers, in the order designated by the Board of
Directors or by the Executive Committee, shall perform the duties of the
Treasurer, and, when so acting, shall have all the powers of, and be subject to
all restrictions upon, the Treasurer. They shall also perform such other duties
as from time to time may be assigned to them by the Board of Directors or by the
Executive Committee or the President.
SECTION 12. Secretary. The Secretary shall attend all meetings of
---------
the stockholders of the corporation and of its Board of Directors and shall keep
the minutes of all such meetings in a book or books kept by him for that
purpose. He shall keep in safe custody the seal of the corporation, and, when
authorized by the Board of Directors or the Executive Committee, he shall affix
such seal to any instrument requiring it. In the absence of a Transfer Agent or
a Registrar, the Secretary shall have charge of the stock certificate books, and
the Secretary shall have charge of such other books and papers as the Board of
Directors or Executive Committee may direct. He shall also have such other
powers and perform such other duties as pertain to his office, or as the Board
of Directors or the Executive Committee or the President may from time to time
prescribe.
SECTION 13. Assistant Secretaries. In the absence or disability of
---------------------
the Secretary, the Assistant Secretaries, in the order designated by the Board
of Directors or Executive Committee, shall perform the duties of the Secretary,
and, when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the Secretary. They shall also perform such other duties as
from time to time may be assigned to them by the Board of Directors or Executive
Committee or the President.
7
<PAGE>
ARTICLE V
CHECKS, DRAFTS, ETC.
All checks, drafts or orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents, person or persons, to whom the
Board of Directors or Executive Committee shall have delegated the power, but
under such conditions and restrictions as in said resolutions may be imposed.
The signature of any officer upon any of the foregoing instruments may be a
facsimile whenever authorized by the Board of Directors or by the Executive
Committee.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. Issue of Certificates of Stock. The Board of Directors or
------------------------------
Executive Committee shall provide for the issue and transfer of the certificates
of capital stock of the corporation, and prescribe the form of such
certificates. Every owner of stock of the corporation shall be entitled to a
certificate of stock, which shall be under the seal of the corporation (which
seal may be a facsimile, engraved or printed), specifying the number of shares
owned by him, and which certificate shall be signed by the President or Vice-
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the corporation. Said signatures may, wherever permitted
by law, be facsimile, engraved or printed. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on any such certificate or certificates shall cease to be such officer or
officers of the corporation, whether because of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the corporation.
SECTION 2. Transfer Agents and Registrars. The corporation may have
------------------------------
one or more Transfer Agents and one or more Registrars of its stock whose
respective duties the Board of Directors may, from time to time, prescribe. If
the corporation shall have a Transfer Agent, no certificate of stock shall be
valid until countersigned by such Transfer Agent, and if the corporation shall
have a Registrar, until registered by the Registrar. The duties of the Transfer
Agent and Registrar may be combined.
SECTION 3. Transfer of Shares. The shares of the corporation shall
------------------
be transferable only upon its books and by the
8
<PAGE>
holders thereof in person or by their duly authorized attorneys or legal
representatives, and upon such transfer the old certificates shall be
surrendered to the corporation by the delivery thereof to the person in charge
of the stock transfer books and ledgers or to such other person as the Directors
may designate for such purpose, and new certificates shall thereupon be issued.
SECTION 4. Addresses of Stockholders. Every stockholder shall
-------------------------
furnish the Transfer Agent, or in the absence of a Transfer Agent, the
Registrar, or in the absence of a Transfer Agent and a Registrar, the Secretary,
with an address at or to which notices of meetings and all other notices may be
served upon or mailed to him, and in default thereof, notices may be addressed
to him at the office of the corporation.
SECTION 5. Closing of Transfer Books: Record Date. The Board of
--------------------------------------
Directors shall have power to close the stock transfer books of the corporation
for a period not exceeding forty (40) days and not less than ten (10) days prior
to the date of any meeting of stockholders; provided, however, that in lieu of
closing the stock transfer books as aforesaid the Board of Directors may fix a
date not exceeding forty (40) days and not less than ten (10) days prior to the
date of any such meeting as the time as of which stockholders entitled to notice
of and to vote at such meeting shall be determined, and all persons who were
holders of record of voting stock at such time and no others shall be entitled
to notice of and to vote at such meeting. The Board of Directors shall also have
power to close the stock transfer books of the corporation for a period not
exceeding forty (40) days preceding the date fixed for the payment of any
dividend or the making of any distribution or for the delivery of any evidence
of right or evidence of interest; provided, however that in lieu of closing the
stock transfer books as aforesaid the Board of Directors may fix a date not
exceeding forty (40) days preceding the date fixed for the payment of any such
dividend or the making of any such distribution or for the delivery of any such
evidence of right or interest as a record time for the determination of the
stockholders entitled to receive any such dividend, distribution, right or
interest, and in such case only stockholders of record at the time so fixed
shall be entitled to receive such dividend, distribution, right or interest.
SECTION 6. Lost and Destroyed Certificates. The Board of Directors
-------------------------------
or Executive Committee may direct a new certificate or certificates of stock to
be issued in the place of any certificate or certificates theretofore issued and
alleged to have been lost or destroyed; but the Board of Directors or Executive
Committee when authorizing such issue of a new certificate or certificates, may
in its discretion require the owner of the stock represented by the certificate
so lost or destroyed or his legal representative to furnish proof by affidavit
or otherwise to the satisfaction of the Board of Directors or Executive
Committee of the ownership of the stock
9
<PAGE>
represented by such certificate alleged to have been lost or destroyed and the
facts which tend to prove its loss or destruction. The Board of Directors or
Executive Committee may also require such person to execute and deliver to the
corporation a bond, with or without sureties in such sum as the Board of
Directors or Executive Committee may direct, indemnifying the corporation
against any claim that may be made against it by reason of the issue of such new
certificate. The Board of Directors or Executive Committee, however, may, in its
discretion, refuse to issue any such new certificate, except pursuant to court
order.
ARTICLE VII
SEAL
The corporate seal of the corporation shall be circular in form, shall
bear around the circumference the words "AFFINITY MINING COMPANY - WEST
VIRGINIA" and in the center the words "INCORPORATED - 1970," or words of similar
import. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. Examination of Books and Records. The Board of Directors
--------------------------------
or Executive Committee may determine from time to time whether and to what
extent and at what times and places and under what conditions and regulations
the accounts and books of the corporation, or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the corporation, except as provided
by the statutes of the State of West Virginia, or authorized by the Board of
Directors or Executive Committee.
SECTION 2. Voting of Stock in Other Corporations. Any shares of
-------------------------------------
stock in any other corporation, which may from time to time be held by the
corporation, may be represented and voted at any of the stockholders' meetings
thereof by the President or a Vice-President of the corporation or by proxy
appointed by the President or one of the Vice-Presidents of the corporation. The
Board of Directors or Executive Committee, however, may by resolution appoint
any other person or persons to vote such shares, in which case such other person
or persons shall be entitled to vote such shares upon the production of a
certified copy of such resolution.
SECTION 3. Fiscal Year. The fiscal year of the corporation shall
-----------
begin on the first day of January in each year.
10
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ARTICLE IX
INDEMNIFICATION
Any person made a party to any action, suit or proceeding by reason of
the fact that he, his testator or intestate, is or was a director, officer or
employee of the corporation or of any corporation which he served as such at the
request of the corporation, shall be indemnified by the corporation against the
reasonable expenses, including attorney's fees, actually and necessarily
incurred by him in connection with the defense of such action, suit, proceeding,
or in connection with any appeal therein, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such officer,
director or employee is liable for negligence or misconduct in the performance
of his duties; provided, however, that if any such amount is paid otherwise than
pursuant to court order or action by the stockholders, the corporation shall
within eighteen (18) months from the date of such payment mail to its
stockholders at the time entitled to vote for the election of directors a
statement specifying the person paid, the amount of the payment and the final
disposition of the litigation. Except as otherwise provided by law, and in
addition to any other right provided by law, every such person shall be
entitled, without demand by him upon the corporation, or any action by the
corporation, to enforce the right of indemnification or reimbursement
hereinabove provided in an action at law against the corporation. The right of
indemnification or reimbursement hereinabove provided or under any applicable
statutes shall not be deemed exclusive of any other right to which any such
person may now or hereafter be otherwise entitled.
ARTICLE X
AMENDMENTS
SECTION 1. By Stockholders. These by-laws may be made, amended,
---------------
altered or repealed, by the affirmative vote of the holders of a majority of the
stock of the corporation, or their proxies, who shall be present and entitled to
vote at any annual or special meeting of stockholders, provided that notice of
the proposed amendment, alteration or repeal shall have been included in the
notice of the meeting.
SECTION 2. By Directors. The Board of Directors shall have the
------------
power, by a vote of a majority of the Directors then in office, at a meeting
upon waiver of notice or called pursuant to a notice in which any such proposed
modification of the by-laws is set forth, to make, amend, alter or repeal these
by-laws except that the Board of Directors shall have no power to alter, amend,
or repeal a by-law adopted by the stockholders subsequent to any original
adoption of these by-laws by the stockholders.
11
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* * * * * * * * * * * * * * * * * *
Thereupon, the Secretary reported that the Articles of Incorporation
had been filed in the office of the Secretary of State of the State of West
Virginia, and that a certificate had Been issued by that officer, which bears
date on the 29th day of July, 1970, and which certificate has been duly recorded
in the office of the Clerk of the County Court of Raleigh County, West Virginia,
in Book No. 490, at page No. 242.
Thereupon, the meeting proceeded to the election of ten (10) directors
as prescribed by Article II of the by-laws. An election was held and each person
entitled to vote announced his vote to the Secretary in accordance with the by-
laws of the company, and after the same had been done, it was ascertained and
reported by the Secretary that the following named persons had been elected and
were thereupon duly declared to be the Directors of this company for the ensuing
year and until their successors shall be duly elected and shall qualify, namely:
R. S. Bailey
H. H. Cobb
R. H. Freeman
Eli Goldston
F. S. Holway
William Laird
J. N. Philips
D. B. Shupe
DaCosta Smith, Jr.
C. A. Stefl
Upon motion, the report was received and ordered spread upon the minutes.
There being no further business to be transacted, upon motion the
meeting adjourned.
12
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[Executed]
----------------------------------------
- ---------------- Chairman
[Executed]
- -------------------------------------------
Secretary
13
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Amendment of Bylaws
- -------------------
RESOLVED, That Section 1 of Article I of the Bylaws of the Company is repealed
in its entirety and the following provision substituted in lieu thereof.
"Section 1. The annual meeting of the stockholders, commencing with
the year 1988, shall be held in April, at such time as shall be determined by
the Board of Directors, for the purpose of electing directors, and for the
transaction of such other business as may be brought before the meeting."
14
<PAGE>
EXHIBIT 3.5
CERTIFICATE OF INCORPORATION
OF
Arid Operations Inc.
1. The name of the corporation is:
Arid Operations Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is One Hundred (100) all of such shares shall be without
par value.
5. The board of directors is authorized to make, alter or repeal the
by-laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the incorporator is:
M. C. Kinnamon
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
<PAGE>
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 31st day of January, 1992.
/s/ M. C. Kinnamon
-------------------
M. C. Kinnamon
2
<PAGE>
EXHIBIT 3.6
BY-LAWS OF
ARID OPERATIONS INC.
(A Delaware Corporation)
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the
-----------------
Corporation within the State of Delaware shall be in the City of Wilmington,
County of New Castle, or such other location of the Corporation's registered
agent as the Corporation may from time to time determine by resolution of the
Board of Directors.
SECTION 2. Other Offices. The Corporation may also have an office or
-------------
offices other than said registered office at such place or places, either within
or without the State of Delaware, as the Board of Directors shall from time to
time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of the stockholders for
-----------------
the election of directors or for any other purpose shall be held at any such
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of meeting
or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders,
--------------
commencing with the year 1992, shall be held at 9:00 a.m. on the sixth day of
October, if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, at 9:00 a.m., or at such other date and time
as shall be designated from time to time by the Board of Directors and stated in
the notice of meeting or in a duly executed waiver thereof. At such annual
meeting, the stockholders shall elect, by a plurality vote, a Board of Directors
and transact such other business as may properly be brought before the meeting.
SECTION 3. Special Meetings. Special meetings of stockholders,
----------------
unless otherwise prescribed by statute, may be called at any time by the Board
of Directors or the Chairman of the Board, if one shall have been elected, or
the President and shall be called by the Secretary upon the request in writing
of a stockholder or stockholders holding of record at least 51 percent of the
voting power of the issued and outstanding shares of stock of the Corporation
entitled to vote at such meeting.
<PAGE>
SECTION 4. Notice of Meetings. Except as otherwise expressly
------------------
required by statute, written notice of each annual and special meeting of
stockholders stating the date, place and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder of record entitled to vote thereat not less
than ten nor more than sixty days before the date of the meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice. Notice shall be given personally or by mail and,
if by mail, shall be sent in a postage prepaid envelope, addressed to the
stockholder at his address as it appears on the records of the Corporation.
Notice by mail shall be deemed given at the time when the same shall be
deposited in the United States mail, postage prepaid. Notice of any meeting
shall not be required to be given to any person who attends such meeting, except
when such person attends the meeting in person or by proxy for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened, or who, either
before or after the meeting, shall submit a signed written waiver of notice, in
person or by proxy. Neither the business to be transacted at, nor the purpose
of, an annual or special meeting of stockholders need be specified in any
written waiver of notice.
SECTION 5. List of Stockholders. The officer who has charge of the
--------------------
stock ledger of the Corporation shall prepare and make, at least ten days before
each meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing the address of and
the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city, town or village where
the meeting is to be held, which place shall be specified in the notice of
meeting, or, if not specified, at the place where the meeting is to be held.
The list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
SECTION 6. Quorum, Adjournments. The holders of a majority of the
--------------------
voting power of the issued and outstanding stock of the Corporation entitled to
vote thereat, present in person or represented by proxy shall constitute a
quorum for the transaction or business at all meetings of stockholders, except
as otherwise provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented by proxy at any meeting
of stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented by proxy.
2
<PAGE>
At such adjourned meeting at which a quorum shall be present or represented by
proxy, any business may be transacted which might have been transacted at the
meeting as originally called. If the adjournment is for more than thirty days;
or, if after adjournment a new record date is set, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 7. Organization. At each meeting of stockholders, the
------------
Chairman of the Board, if one shall have been elected, or, in his absence or if
one shall not have been elected, the President shall act as chairman of the
meeting. The Secretary or, in his absence or inability to act, the person whom
the chairman of the meeting shall appoint secretary of the meeting shall act as
secretary of the meeting and keep the minutes thereof.
SECTION 8. Order of Business. The order of business at all meetings
-----------------
of the stockholders shall be as determined by the chairman of the meeting.
SECTION 9. Voting. Except as otherwise provided by statute or the
------
Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each meeting of stockholders to one vote for each share of capital
stock of the Corporation standing in his name on the record of stockholders of
the Corporation;
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these By-Laws as the record date for the determination of
the stockholders who shall be entitled to notice of and to vote at
such meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of
business on the date next preceding the day on which the meeting is
held.
Each stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for him by a proxy signed by such stockholder
or his attorney-in-fact, but no proxy shall be voted after three years from its
date, unless the proxy provides for a longer period. Any such proxy shall be
delivered to the secretary of the meeting at or prior to the time designated in
the order of business for so delivering such proxies. When a quorum is present
at any meeting, the vote of the holders of a majority of the voting power of the
issued and outstanding stock of the Corporation entitled to vote thereon,
present in person or represented by proxy, shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of statute or of the Certificate
3
<PAGE>
of Incorporation or of these By-Laws, a different vote is required, in which
case such express provision shall govern and control the decision of such
question. Unless required by statute, or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by ballot. On a
vote by ballot, each ballot shall be signed by the stockholder voting, or by his
proxy, if there by such proxy, and shall state the number of shares voted.
SECTION 10. Inspectors. The Board of Directors may, in advance of
----------
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed shall
fail to appear or act, the chairman of the meeting shall, or if inspectors shall
not have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares or capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the results, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the
office or director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
SECTION 11. Action by Consent. Whenever the vote of stockholders at
-----------------
a meeting thereof is required or permitted to be taken for or in connection with
any corporate action, by any provision of statute or of the Certificate of
Incorporation of these By-Laws, the meeting and vote of stockholders may be
dispensed with, and the action taken without such meeting and vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares of
stock of the Corporation entitled to vote thereon were present and voted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the
--------------
Corporation shall be managed by or under the direction of
4
<PAGE>
the Board of Directors. The Board of Directors may exercise all such authority
and powers of the Corporation and do all such lawful acts and things as are not
by statute or the Certificate of Incorporation directed or required to be
exercised or done by the stockholders.
SECTION 2. Number, Qualification, Election and Term of Office. The
--------------------------------------------------
number of directors constituting the Board of Directors shall be not less than
one nor more than 15. Thereafter, the number of directors may be fixed, from
time to time, by the affirmative vote of a majority of the entire Board of
Directors of by action of the stockholders of the Corporation. Any decrease in
the number of directors shall be effective at the time of the next succeeding
annual meeting of stockholders unless there shall be vacancies in the Board of
Directors, in which case such decrease may become effective at any time prior to
the next succeeding annual meeting to the extent of the number of such
vacancies. Directors need not be stockholders. Except as otherwise provided by
statute or these By-Laws, the directors (other than members of the initial Board
of Directors) shall be elected at the annual meeting of stockholders. Each
director shall hold office until his successor shall have been elected and
qualified, or until his death, or until he shall have resigned, or have been
removed, as hereinafter provided in these By-Laws.
SECTION 3. Place of Meetings. Meetings of the Board of Directors
-----------------
shall be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet for the
--------------
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of stockholders, on
the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. In the event such annual meeting is
not so held, the annual meeting of the Board of Directors may be held at such
other time or place (within or without the State of Delaware) as shall be
specified in a notice thereof given as hereinafter provided in Section 7 of this
Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board of
----------------
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting which would otherwise be
held on that day shall be held at the same hour on the next succeeding business
day. Notice of regular meetings of the Board of Directors need not be given
except as otherwise required by statute or these By-Laws.
5
<PAGE>
SECTION 6. Special Meetings. Special meetings of the Board of
----------------
Directors may be called by the Chairman of the Board, if one shall have been
elected, or by two or more directors of the Corporation or by the President.
SECTION 7. Notice of Meetings. Notice of each special meeting of the
------------------
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 7, in which notice shall be stated the time and place of the meeting.
Except as otherwise required by these By-Laws, such notice need not state the
purpose of such meeting. Notice of each such meeting shall be mailed, postage
prepaid, to each director, addressed to him at his residence or usual place of
business, by first class mail, at least two days before the day on which such
meeting is to be held, or shall be sent addressed to him at such place by
telegraph, cable, telex, telecopier or other similar means, or be delivered to
him personally or be given to him by telephone or other similar means, at least
twenty-four hours before the time at which such meeting is to be held. Notice
of any such meeting need not be given to any director who shall, either before
or after the meeting, submit a signed waiver of notice or who shall attend such
meeting, except when he shall attend for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
SECTION 8. Quorum and Manner of Acting. A majority of the entire
---------------------------
Board of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, and, except as otherwise expressly
required by statute or the Certificate of Incorporation or these By-Laws, the
act of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors. In the absence of a quorum
at any meeting of the Board of Directors, a majority of the directors present
thereat may adjourn such meeting to another time and place. Notice of the time
and place of any such adjourned meeting shall be given to all of the directors
unless such time and place were announced at the meeting at which the
adjournment was taken, in which case such notice shall only be given to the
directors who were not present thereat. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called. The directors shall act only as
a Board and the individual directors shall have no power as such.
SECTION 9. Organization. At each meeting of the Board of Directors,
------------
the Chairman of the Board, if one shall have been elected, or, in the absence of
the Chairman of the Board or if one shall not have been elected, the President
(or, in his absence, another director chosen by a majority of the directors
present) shall act as chairman of the meeting and preside thereat. The
Secretary or, in his absence, any person appointed
6
<PAGE>
by the chairman shall act as secretary of the meeting and keep the minutes
thereof.
SECTION 10. Resignations. Any director of the Corporation may resign
------------
at any time by giving written notice of his resignation to the Corporation. Any
such resignation shall take effect at the time specified therein or, if the time
when it shall become effective shall not be specified therein, immediately upon
its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 11. Vacancies. Any vacancy in the Board of Directors,
---------
whether arising from death, resignation, removal (with or without cause), an
increase in the number of directors or any other cause, may be filled by the
vote of a majority of the directors then in office, though less than a quorum,
or by the sole remaining director or by the stockholders at the next annual
meeting thereof or at a special meeting thereof. Each director so elected shall
hold office until his successor shall have been elected and qualified.
SECTION 12. Removal of Directors. Any director may be removed,
--------------------
either with or without cause, at any time, by the holders of a majority of the
voting power of the issued and outstanding capital stock of the Corporation
entitled to vote at an election of directors.
SECTION 13. Compensation. The Board of Directors shall have
------------
authority to fix the compensation, including fees and reimbursement of expenses,
of directors for services to the Corporation in any capacity.
SECTION 14. Committees. The Board of Directors may, by resolution
----------
passed by a majority of the entire Board of Directors, designate one or more
committees, including an executive committee, each committee to consist of one
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
addition, in the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
Except to the extent restricted by statute or the Certificate of Incorporation,
each such committee, to the extent provided in the resolution creating it, shall
have and may exercise all the powers and authority of the Board of Directors and
may authorize the seal of the Corporation to be affixed to all papers which
require it. Each such committee shall serve at the pleasure of
7
<PAGE>
the Board of Directors and have such name as may be determined from time to time
by resolution adopted by the Board of Directors. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors.
SECTION 15. Action by Consent. Unless restricted by the Certificate
-----------------
of Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board of Directors or such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or such committee, as the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate
------------------
of Incorporation, any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means or which all persons participating in the meeting can hear each other.
Participation by such means shall constitute presence in person at a meeting.
ARTICLE IV
OFFICERS
SECTION 1. Number and Qualifications. The officers of the
-------------------------
Corporation shall be elected by the Board of Directors or by the stockholders
and shall include the President, one or more Vice-Presidents, the Secretary and,
if appropriate, the General Manager and/or the Treasurer. If the Board of
Directors or the stockholders wish, either may also elect as an officer of the
Corporation a Chairman of the Board and may elect other officers (including one
or more Assistant Treasurers and one or more Assistant Secretaries) as may be
necessary or desirable for the business of the Corporation. Any two or more
offices may be held by the same person, and no officer except the Chairman of
the Board need be a director. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified, or until his
death, or until he shall have resigned or have been removed, as hereinafter
provided in these By-Laws.
SECTION 2. Resignations. Any officer of the Corporation may resign
------------
at any time by giving written notice of his resignation to the Corporation. Any
such resignation shall take effect at the time specified therein or, if the time
when it shall become effective shall not be specified therein, immediately upon
receipt. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective.
8
<PAGE>
SECTION 3. Removal. Any officer of the Corporation may be removed,
-------
either with or without cause, at any time, by the Board of Directors at any
meeting thereof.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one
---------------------
shall have been elected, shall be a member of the Board, an officer of the
Corporation and, if present, shall preside at each meeting of the Board of
Directors or the stockholders. He shall advise and counsel with the President,
and in his absence with other executives of the Corporation, and shall perform
such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 5. The President. The President shall be the chief executive
-------------
officer of the Corporation. He shall, in the absence of the Chairman of the
Board or if a Chairman of the Board shall not have been elected, preside at each
meeting of the Board of Directors or the stockholders. He shall perform all
duties incident to the office of President and chief executive officer and such
other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 6. Vice-President. Each Vice-President shall perform all
--------------
such duties as from time to time may be assigned to him by the Board of
Directors or the President. At the request of the President or in his absence
or in the event or his inability or refusal to act, the Vice-President, or if
there shall be more than one, the Vice-Presidents in the order determined by the
Board of Directors (or if there be no such determination, then the Vice-
Presidents in the order of their election), shall perform the duties of the
President, and, when so acting, shall have the powers of and be subject to the
restrictions placed upon the President in respect of the performance of such
duties.
SECTION 7. Treasurer. The Treasurer shall
---------
(a) have charge and custody of, and be responsible for, all the
funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
9
<PAGE>
(e) disburse the funds of the Corporation and supervise the
investment of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of
Directors may require, an account of the financial condition of the
Corporation; and
(g) in general, perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 8. Secretary. The Secretary shall
---------
(a) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board of Directors,
the committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation
and affix and attest the seal to all certificates for shares of the
Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and attest
the seal to all other documents to be executed on behalf of the
Corporation under its seal;
(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 9. The Assistant Treasurer. The Assistant Treasurer, or if
-----------------------
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the Treasurer or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the Treasurer and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 10. The Assistant Secretary. The Assistant Secretary, or if
-----------------------
there be more than one, the Assistant
10
<PAGE>
Secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election), shall, in the absence
of the Secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties as from time to time may be assigned by the Board of Directors.
SECTION 11. Officers' Bonds or Other Security. If required by the
---------------------------------
Board of Directors, any officer of the Corporation shall give a bond or other
security for the faithful performance of his duties, in such amount and with
such surety as the Board of Directors may require.
SECTION 12. Compensation. The compensation of the officers of the
------------
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that he is also a director of
the Corporation.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. Stock Certificates. Every holder of stock in the
------------------
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the Chairman of the Board or the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation. If the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restriction of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of the State of
Delaware, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a
--------------------
certificate may be a facsimile. In case any
11
<PAGE>
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a
-----------------
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as it may direct sufficient to indemnify it
against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate of the issuance of
such new certificate.
SECTION 4. Transfers of Stock. Upon surrender to the Corporation or
------------------
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its records; provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever
any transfer of stock shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of transfer if, when the certificates are
presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
SECTION 5. Transfer. The Board of Directors may appoint, or
--------
authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
SECTION 6. Regulations. The Board of Directors may make such
-----------
additional rules and regulations, not inconsistent with these By-Laws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
SECTION 7. Fixing the Record Date. In order that the Corporation may
----------------------
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action,
12
<PAGE>
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 8. Registered Stockholders. The Corporation shall be
-----------------------
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of stock to receive dividends and to vote as such owner,
shall be entitled to hold liable for calls and assessments a person registered
on its records as the owner of shares of stock, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares of
stock on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. General. The Corporation shall indemnify any person who
-------
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2. Derivative Actions. The Corporation shall indemnify any
------------------
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director,
13
<PAGE>
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorney's fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, provided that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
SECTION 3. Indemnification in Certain Cases. To the extent that a
--------------------------------
director, officer, employee or agent of the Corporation (or anyone who is or was
serving at the request of the Corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust or other
enterprise) has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article VI,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorney's fees) actually and reasonably incurred by
him in connection therewith.
SECTION 4. Procedure. Any indemnification under Sections 1 and 2 of
---------
this Article VI (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
such Sections 1 and 2. Such determination shall be made (a) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
stockholders.
SECTION 5. Advances for Expenses. Expenses (including reasonable
---------------------
attorney's fees) incurred in defending a civil, administrative, investigative,
or criminal action, suit or proceeding may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall be ultimately determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article VI.
14
<PAGE>
SECTION 6. Rights Not Exclusive. The indemnification and advancement
--------------------
of expenses provided by, or granted pursuant to, the other subsections of this
Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
SECTION 7. Insurance. The Corporation shall have power to purchase
---------
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article VI.
SECTION 8. Definition of Corporation. For the purposes of this
-------------------------
Article VI, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a director, officer, employee or
agent of such a constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this Article VI with respect
to the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity.
SECTION 9. Survival of Rights. The indemnification and advancement
------------------
of expenses provided by, or granted pursuant to this Article VI shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. Dividends. Subject to the provisions of statute and the
---------
Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of stock of
the
15
<PAGE>
Corporation, unless otherwise provided by statute or the Certificate of
Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be
--------
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think
conducive to the interests of the Corporation. The Board of Directors may
modify or abolish any such reserves in the manner in which it was created.
SECTION 3. Seal. The seal of the Corporation shall be in such form
----
as shall be approved by the Board of Directors.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be
-----------
fixed, and once fixed, may thereafter be changed, by resolution of the Board of
Directors.
SECTION 5. Checks, Notes, Drafts, Etc. All checks, notes, drafts or
---------------------------
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer, officers,
person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers authorized by the Board of Directors to
make such designation.
SECTION 6. Execution of Contracts, Deeds, Etc. The Board of
-----------------------------------
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation to enter into or execute and deliver any and
all deeds, bonds, mortgages, contracts and other obligations or instruments, and
such authority may be general or confined to specific instances.
SECTION 7. Voting of Stock in Other Corporations. Unless otherwise
-------------------------------------
provided by resolution of the Board of Directors, the Chairman of the Board or
the President, from time to time, may (or may appoint one or more attorneys or
agents to) cast the votes which the Corporation may be entitled to cast as a
shareholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation. In the event one or more
attorneys or agents are appointed, the Chairman of the Board or the President
may instruct the attorneys or agents appointed to execute or cause to be
executed in the name and on behalf of the Corporation and under its seal or
otherwise such written proxies, consents, waivers or other instrument as may be
necessary or proper in the circumstances.
16
<PAGE>
ARTICLE VIII
AMENDMENTS
These By-Laws may be amended or repealed or new by-laws adopted (a) by
action of the stockholders entitled to vote thereon at any annual or special
meeting of stockholders or (b) if the Certificate of Incorporation so provides,
by action of the Board of Directors at a regular or special meeting thereof.
Any by-laws made by the Board of Directors may be amended or repealed by action
of the stockholders at any annual or special meeting of stockholders.
17
<PAGE>
EXHIBIT 3.7
CERTIFICATE OF INCORPORATION
OF
BIG SKY COAL COMPANY
* * * * *
1. The name of the corporation is
BIG SKY COAL COMPANY
2. The address of its registered office in the State of Delaware is
Corporation Trust-Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
<PAGE>
5A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
D. A. Hampton Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as
a director until the first annual meeting of the stockholders or until a
successor is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
W. M. Landuyt 99 Wood Avenue, South
Iselin, New Jersey 08330
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter
2
<PAGE>
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
10. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 4th day of October, 1991.
/s/ K. A. Widdoes
-----------------------------------
K. A. Widdoes
/s/ D. A. Hampton
-----------------------------------
D. A. Hampton
/s/ M. A. Brzoska
-----------------------------------
M. A. Brzoska
3
<PAGE>
EXHIBIT 3.8
BIG SKY COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Flagstaff, State of Arizona, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware r as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1992, shall be held on the first day of April if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 A. M., or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at
<PAGE>
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall
be specified in the notice of the meeting or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request tin writing of a majority of the board of
directors, or at the request in writing of stockholder owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2
<PAGE>
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than ten. The first board shall
consist of one director. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution or the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in
3
<PAGE>
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall
be called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of
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business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of
directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by -the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of, directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the board of directors, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which n:lay require it; but no such committee shall have
the power or authority in reference -to amending the certificate of
incorporation, (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151 ta) fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of
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the corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meetings of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed co mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and
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such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice president (or in the event there be more
than one vice president, the vice~presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the boa:rd of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, tin case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation. Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or
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other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificate or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to -the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon tits books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FILING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or
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allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may file, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting: provided, however
that the board of directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and 'co vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof' except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from of the board of directors or at any special meeting of the
stockholders or of the board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal by-laws is conferred
upon the board of directors by the certificate of incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal by-laws.
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EXHIBIT 3.9
ARTICLES OF INCORPORATION
OF
BLACKROCK FIRST CAPITAL CORPORATION
The undersigned, acting as incorporators of a corporation under Chapter 31,
Article 1, Section 27 of the West Virginia Code, adopt the following Articles of
Incorporation for such corporation:
1. The undersigned agree to become a West Virginia corporation by
the name of
BLACKROCK FIRST CAPITAL CORPORATION
2. The address at the physical location and the mailing address of
the principal office of the corporation, which is also the principal place of
business in West Virginia of the corporation, will be 800 Laidley Tower, in the
city of Charleston, County of Kanawha, State of West Virginia, Zip Code 25301.
3. This corporation is organized as a stock corporation, for profit,
and the aggregate value of the authorized capital stock of said profit
corporation will be Twenty Thousand Dollars ($20,000.00), which shall be one
class of two thousand (2,000) common shares of a par value of Ten Dollars
($10.00) each.
4. The period of duration of the corporation is perpetual.
5. The purpose for which this corporation is formed is to engage in
the transaction of any or all lawful business for which corporations may be
incorporated in West Virginia, including, without limiting in any way the scope
of the foregoing purposes, for the purpose of making venture or risk capital
available for
<PAGE>
qualified investments as contemplated by the West Virginia Capital Company Act,
Article 1, Chapter 5E of the West Virginia Code, as amended.
6. The Corporation shall indemnify each member of the Board and each
officer of the Corporation now or hereafter serving as such, who was, is or is
threatened to be made a party to any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative
(including an action by, or in the right of, the Corporation), by reason of the
fact that he is or was a Board member, officer, or agent of the Corporation or
is or was serving at the request of the Corporation as a Board member, officer
or agent of another corporation, partnership, joint venture, trust or other
enterprise.
Said indemnification shall be against expenses (including attorney's
fees), judgements, fines, and amounts paid in settlement actually and reasonably
incurred by the aforementioned individuals in connection with such action, suit
or proceeding, including any appeal thereof, if they acted in good faith and in
a manner reasonably believed to be in, or not opposed to, the best interest of
the Corporation.
No indemnification shall be made in respect to any claim, issue, or
matter as to which such person shall have been adjudged in such action, suit or
proceeding to be liable for gross negligence or willful misconduct in the
performance of his duties to the Corporation, except to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability and in view of all the
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circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses that such court shall deem proper. Indemnity with
respect to any criminal action or proceeding will be provided only when the
board member or officer had no reasonable cause to believe his act was unlawful.
The amount paid to any board member, officer or agent of the
corporation by way of indemnification shall not exceed the actual, reasonable
and necessary expenses incurred in connection with the matter involved. The
foregoing right of indemnification shall be in addition to but not exclusive of,
any other right to which such board member, or officer of the corporation may
other wise be entitled by law.
7. The full names and addresses of the incorporators including street
and street numbers, if any, and the city, town or village, including tile zip
code, are as follows:
NAME ADDRESS
Frank L. Ungerott 906 Olive Street
St. Louis, Missouri 63101
Jonathan L. Miles 906 Olive Street
St. Louis, Missouri 63101
Steven A. Gramlich 906 Olive Street
St. Louis, Missouri 63101
8. The number of directors constituting the initial board of
directors of the corporation is two (2) and the names and addresses of the
persons who are to serve as directors until the first annual meeting of
shareholders, or until their successors are elected and shall qualify, are as
follows:
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NAME ADDRESS
Francis L. Barkofske 301 North Memorial Drive
St. Louis, Missouri 63102
Michael M. Scharf 301 North Memorial Drive
St. Louis, Missouri 63102
9. The name and address of the appointed person to whom notice or
process may be sent is C T CORPORATION SYSTEM, 1200 Charleston National Plaza,
Charleston, West Virginia 25301.
ACKNOWLEDGEMENT
We, the undersigned, for the purpose of forming a corporation under the laws of
the State of West Virginia, do make and file this "Articles of Incorporation".
In witness whereof, we have accordingly hereunto set our respective
hands this 23rd day of February, 1990.
/s/ Frank L. Ungerott
----------------------
Frank L. Ungerott
/s/ Jonathan L. Miles
----------------------
Jonathan L. Miles
/s/ Steven A. Gramlich
-----------------------
Steven A. Gramlich
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STATE OF MISSOURI
CITY OF ST. LOUIS
I, C. Patton McGee, a Notary Public in and for the city and state aforesaid,
hereby certify that Frank L. Ungerott, Jonathan L. Miles and Steven A. Gramlich,
whose names are signed to the foregoing Articles of Incorporation, this day
personally appeared before me in my said city and acknowledged their signatures.
/s/ C. Patton McGree
-------------------------------
C. Patton McGree, Notary Public
My commission expires November 1, 1993.
ARTICLES OF INCORPORATION PREPARED BY Michael Hyer, Attorney, whose mailing
address is Peabody Holding Company, Inc., Legal Department, 301 North Memorial
Drive, St. Louis, Missouri 63102.
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EXHIBIT 3.10
BLACKROCK FIRST CAPITAL CORPORATION
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office of the corporation in the State of
West Virginia shall be located in the City of Charleston, County of Kanawha.
Section 2. The corporation may have such other offices, either within
or without the State of West Virginia, as the board of directors may designate
or as the business of the corporation may require.
ARTICLE II
ANNUAL MEETING OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in City of St. Louis, State of Missouri, at such place as may be
fixed from time to time by the board of directors, or at such other place either
within or without the State of West Virginia as shall be designated from time to
time by the board of directors and stated in the notice of the meeting.
Section 2. Annual meetings of shareholders, commencing with the year
1991, shall be held on the second Tuesday of April at 10:00 A.M. if not a legal
holiday, and if a legal holiday, then on the next secular day following, at
10:00 A.M., for the purpose of
<PAGE>
electing directors and for the transaction of such other business as may come
before the meeting.
Section 3. Written notice stating the place, day and hour of the
meeting shall be delivered not less than ten nor more than fifty days before the
date of the meeting, either personally or by mail, by or at the direction of
tile president, or the secretary, or the officer or other persons calling the
meeting, to each shareholder of record entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other
than the election of directors may be held at such time and place within or
without the State of West Virginia as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by the president
or by the board of directors, and shall be called by the president at the
request of the holders of not less than one-tenth of all outstanding shares of
the corporation entitled to vote at the meeting.
Section 3. Written notice stating the place, day, hour and purpose or
purposes for which the meeting is called shall be delivered not less than ten
nor more than fifty days before the date of the meeting, either personally or by
mail, by or at the direction of the president, or the secretary, or the officer
or
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other persons calling the meeting, to each shareholder of record entitled to
vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders, but in no event shall a quorum
consist of less than one-third of the shares entitled to vote. If, however,
such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders present in person or represented by proxy may
adjourn the meeting from time to time without further notice. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
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Section 3. Each outstanding share of stock, having voting power,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
At each election for directors every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected and
for whose election he has a right to vote, or to cumulate his votes by giving
one candidate as many votes as the number of such directors multiplied by the
number of his shares shall equal, or by distributing such votes on the same
principle among any number of such candidates.
Section 4. Any action required or permitted to be taken at a meeting
of the shareholders may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The Board of Directors of the Corporation shall consist of
one or more members as fixed from time to time by resolution of the Board of
Directors or the Shareholders. Directors need not be residents of the State of
West Virginia nor shareholders of the corporation. The directors, other than
the first board of directors, shall be elected at the annual meeting of the
shareholders, and each director elected shall serve until the
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<PAGE>
next succeeding annual meeting and until his successor shall have been elected
and qualified. The first board of directors shall hold office until the first
meeting of shareholders.
Section 2. Any vacancy occurring in the board of directors may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the board of directors. A director elected to fill a
vacancy shall be elected for the unexpired portion of the term of his
predecessor in office.
Any directorship to be filled by reason of an increase in the number
of directors may be filled by the affirmative vote of a majority of the
directors present at a meeting at which a quorum is present. A director elected
to fill a newly created directorship shall serve until the next succeeding
annual meeting of shareholders.
The board of directors shall fill vacancies occurring in the board by
reason of the removal of directors without cause or for cause.
Section 3. The business affairs of the corporation shall be managed
by its board of directors which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the articles
of incorporation or by these bylaws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation,
except such as are required by law to be kept within the state, outside of the
State of West Virginia, at such place or places as they may from time to time
determine.
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Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special,
may be held either within or without the State of West Virginia.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held
upon such notice, or without notice, and at such time and at such place as shall
from time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called
by or at the request of the president or any two directors. Notice of any
special meeting shall be given at least ten days, but not more than fifty days,
previously thereto by written notice delivered personally or mailed to each
director at
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his business address, or by telegram. Any director may waive notice of any
meeting.
Section 5. The attendance of a director at a meeting shall constitute
a waiver of notice of such meeting, except where a director attends a meeting
for the express purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened. With the exception of meetings
for the purpose of amending the bylaws or authorizing the sales of all or
substantially all of the assets of the corporation, neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the number of directors shall constitute a
quorum for the transaction of business at any meeting of the board of directors,
but if less than such majority is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time without further
notice.
The act of the majority of the directors present at a meeting at which
a quorum is present shall be the act of the board of directors.
Section 7. Any action required or permitted to be taken at a meeting
of the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
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<PAGE>
ARTICLE VII
EXECUTIVE COMMITTEES
Section 1. The board of directors by resolution adopted by a majority
of the full board, may designate two or more of its members to constitute an
executive committee. The designation of such committee and the delegation
thereto of authority shall not operate to relieve the board of directors, or any
member thereof, of any responsibility imposed by law.
The executive committee, when the board of directors is not in session
shall have and may exercise all of the authority of the board of directors
except to the extent, if any, that such authority shall be limited by the
resolution appointing the executive committee and except also that the executive
committee shall not have the authority of the board of directors in reference to
amending the articles of incorporation, adopting a plan of merger or
consolidation, recommending to the shareholders the sale, lease, exchange or
other disposition of all or substantially all of the property and assets of the
corporation otherwise than in the usual and regular course of its business,
recommending to the shareholders a voluntary dissolution of the corporation or a
revocation thereof, or amending the bylaws of the corporation.
Any vacancy in the executive committee may be filled by a resolution
adopted by a majority of the full board of directors.
The executive committee shall keep regular minutes of its proceedings
and report the same to the board of directors for its information at the meeting
thereof held next after the proceedings shall have been taken.
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ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
charter or of these bylaws, notice is required to be given to any director or
shareholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail, addressed to such director or shareholder, at
his address as it appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice to directors may
also be given by telegram. If notice be given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph company.
Section 2. Whenever any notice is required to be given to any
shareholder or director of the corporation under the provisions of these bylaws
or under the provisions of the Articles of Incorporation or under the provisions
of the West Virginia Corporation Act, a waiver thereof in writing signed by the
person or persons entitled to such notice, filed with the records of the
meeting, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of
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directors may also choose additional vice-presidents, and one or more assistant
secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer, none of whom need be a member of the
board.
Section 3. The board of directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
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Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
death, inability or refusal to act, the vice-president (or in the event there be
more than one vice-president, the vice-presidents in the order designated at the
time of their election, or in the absence of any designation, then in the order
of their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the president. Any vice-president may sign, with the secretary or an assistant
secretary, certificates for shares of the corporation; and shall perform such
other duties as from time to time may be assigned to him by the president or by
the board of directors.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders and of the board of directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of
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the corporation is affixed to all documents the execution of which on behalf of
the corporation under its seal is duly authorized; (d) keep a register of the
post office address of each shareholder which shall be furnished to the
secretary by such shareholder; (e) sign with the president, or a vice-president,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the board of directors; (f) have general charge
of the stock transfer books of the corporation; and (g) in general perform all
duties incident to the office of secretary and such other duties as from time to
time may be assigned to him by the president or by the board of directors.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors,
shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as the board of directors or president may from time to
time prescribe.
The assistant secretaries, when authorized by the board of directors,
may sign with the president or a vice-president certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the board of directors.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the
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corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated
by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
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ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of a corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof.
Every certificate representing shares issued by a corporation which is
authorized to issue shares of more than one class shall set forth upon the face
or back of the certificate, or shall state that the corporation will furnish to
any shareholder upon request and without charge, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued, and if the corporation is authorized to
issue any preferred or special class in series, the variations in the relative
rights and preferences between the shares of each such series so far as the same
have been fixed and determined and the authority of the board of directors to
fix and determine the relative rights and preferences of subsequent series.
Each certificate representing shares shall state upon the face
thereof: that the corporation is organized under the laws of this state; the
name of the person to whom issued; the number and class of shares, and the
designation of the series, if any, which such certificate represents; and the
par value of each share represented by such certificate, or a statement that the
shares are without par value.
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Section 2. The signatures of the president or vice-president and the
secretary or assistant secretary upon a certificate may be facsimiles if the
certificate is manually signed on behalf of a transfer agent or a registrar,
other than the corporation itself or an employee of the corporation. In case
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFER OF SHARES
Section 4. Transfer of shares of the corporation shall be made only
on the stock transfer books of the corporation by the holder of record thereof
or by his legal representative, who shall furnish proper evidence of authority
to transfer, or by his
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attorney thereunto authorized by power of attorney duly executed and filed with
the secretary of the corporation, and on surrender for cancellation of the
certificate for such shares. The person in whose name shares stand on the books
of the corporation shall be deemed by the corporation to be the owner thereof
for all purposes.
CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof,
or shareholders entitled to receive payment of any dividend, or in order to make
a determination of shareholders for any other proper purpose, the board of
directors of the corporation may provide that the stock transfer books shall be
closed for a stated period but not to exceed, in any case, fifty days. If the
stock transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books shall
be closed for at least ten days immediately preceding such meeting. In lieu of
closing the stock transfer books, the board of directors may fix in advance a
date as the record date for any such determination of shareholders, such date in
any case to be not more than fifty days and, in case of a meeting of
shareholders, not less than ten days prior to the date on which the particular
action, requiring such determination of shareholders, is to be taken. If the
stock transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is
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mailed or the date on which the resolution of the board of directors declaring
such dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided in this section,
such determination shall apply to any adjournment thereof.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
West Virginia.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the stock transfer
books for shares of the corporation shall make a complete record of the
shareholders entitled to vote at each meeting of shareholders or any adjournment
thereof, arranged in alphabetical order, with the address of and the number of
shares held by each. Such record shall be produced and kept open at the time
and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting for the purposes thereof.
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ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. The board of directors may, from time to time, declare and
the corporation may pay dividends on its outstanding shares in the manner and
upon the terms and conditions provided by law and its Articles of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
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SEAL
Section 5. The board of directors may provide a corporate seal
which shall have inscribed thereon the name of the corporation and the words
"Corporate Seal, West Virginia".
ARTICLE XII
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed and new
bylaws may be adopted by the board of directors or by the shareholders at any
regular or special meeting.
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EXHIBIT 3.11
CERTIFICATE OF INCORPORATION
OF
BLUEGRASS COAL COMPANY
* * * * *
1. The name of the corporation is:
BLUEGRASS COAL COMPANY
2. The address of its registered office in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of common stock which the corporation
shall have authority to issue is one hundred (100) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to One Thousand
Dollars ($1,000.00).
<PAGE>
5A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
J. J. Masters 906 Olive Street
St. Louis, Missouri 63101
M. S. Kinkead 906 Olive Street
St. Louis, Missouri 63101
S. A. Gramlich 906 Olive Street
St. Louis, Missouri 63101
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
Francis L. Barkofske 301 N. Memorial Drive
St. Louis, Missouri 63102
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided, however, this provision shall not eliminate or limit the liability of
a director: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the Delaware Corporation Law; or (iv)
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for any transaction from which the director derived an improper personal
benefit.
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WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 26th day of
April, 1989.
/s/ J. J. Masters
---------------------------------------
J. J. Masters, Incorporator
/s/ M. S. Kinkead
---------------------------------------
M. S. Kinkead, Incorporator
/s/ S. A. Gramlich
---------------------------------------
S. A. Gramlich, Incorporator
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EXHIBIT 3.12
BLUEGRASS COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
<PAGE>
Section 2. Annual meetings of stockholders, commencing with the year
1990, shall be held on the second Tuesday in April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced
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and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
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represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
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Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders the corporation, or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without
a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than six (6). The first board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
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Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like
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manner and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons
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participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the
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issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation) adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of
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<PAGE>
directors. The directors may be paid their expenses, if any, of attendance at
each meeting of the board of directors and may be paid a fixed sum for
attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same
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shall be deposited in the United States mail. Notice to directors may also be
given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a
treasurer.
Section 3. The board of directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
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Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-
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presidents in the order designated by the directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the president, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the president. The vice-presidents shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
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Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall
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be satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the
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information required to be set forth or stated on certificates pursuant to
Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
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destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
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distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors
at any regular or special meeting, pursuant to law. Dividends may be paid in
cash, in property, or in shares of the capital stock, subject to the provisions
of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
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CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. (a) The Company shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof) who was or is made, or threatened to be made, a party to
an action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether involving any actual or alleged breach of duty, neglect
or error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or
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administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is serving or served in
any capacity at the request of the Company, by reason of the fact that he, his
testator or intestate is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, incurred therein or in any appeal thereof.
(b) The Company shall indemnify other persons and reimburse the
expenses thereof, to the extent required by applicable law, and may indemnify
any other person to whom the Company is permitted to provide indemnification or
the advancement of expenses, whether pursuant to rights granted pursuant to, or
provided by, the Delaware General Corporation Law or otherwise.
(c) The Company shall, from time to time, reimburse or advance to any
person referred to in paragraph (a) the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in paragraph (a) above, upon receipt of a written
undertaking by or on behalf of such person to repay such
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amount(s) if a judgment or other final adjudication adverse to the director or
officer establishes that (i) his acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were material to
the cause of action so adjudicated, (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled, or
(iii) his conduct was otherwise of a character such that Delaware law would
require that such amount(s) be repaid.
(d) Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred in clause (i), in any capacity shall be
deemed to be doing so at the request of the Company.
(e) Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article may elect
to have the right to indemnification (or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action, suit or proceeding, to the extent
permitted by applicable law, or on the basis of the applicable law in effect at
the time indemnification is sought.
(f) The right to be indemnified or to the reimbursement or advancement
of expenses pursuant to this Article (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth
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in a separate written contract between the Company and the director or officer,
(ii) is intended to be retroactive and shall be available with respect to events
occurring prior to the adoption hereof, and (iii) shall continue to exist after
the rescission or restrictive modification hereof with respect to events
occurring prior thereto.
(g) If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the company (including its Board
of Directors, independent legal counsel, or its stockholders) that the claimant
is not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
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ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
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EXHIBIT 3.13
CERTIFICATE OF INCORPORATION
OF
CABALLO COAL COMPANY
* * * *
1. The name of the corporation is
CABALLO COAL COMPANY
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is:
To carry on and conduct the general business of mining; to conduct
general mining operations for recovery of minerals, coal, products and
substances; to mine, extract, remove and recover the same; to buy, sell,
exchange, lease, acquire and generally deal in and with mines, mineral rights,
mineral properties and mining claims and licenses; to construct, own and operate
all necessary facilities; to do all things necessary or convenient therewith;
To acquire, own, lease, mortgage, occupy, sell, let out or develop
real estate, and any interest therein, particularly but not exclusively, mineral
properties, and develop, use and turn the same to account;
To buy, sell, exchange, manufacture, produce, process, convert,
import, export and generally trade in and deal in and with goods, wares,
merchandise, natural products, commodities, articles of commerce and personal
property, of every kind and nature; and
To engage in any lawful act or activity in connection with the
foregoing, and for which corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is One Hundred Dollars ($100.00) amounting in the aggregate to One
Hundred Thousand Dollars ($100,000.00).
5. The name and mailing address of each incorporator is as follows:
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NAME MAILING ADDRESS
- ---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
D. M. Dembkowski Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provisions contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provisions contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
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WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 12th day of
September, 1994.
/s/ M.A. Brzoska
----------------------------------
M. A. Brzoska, Incorporator
/s/ K.A. Widdoes
----------------------------------
K. A. Widdoes, Incorporator
/s/ D.M. Dembrowski
----------------------------------
D. M. Dembrowski, Incorporator
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EXHIBIT 3.14
CABALLO COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of St. Louis, State of Missouri, at such place as may
be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1994,
shall be held on the second Tuesday in April if not
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a legal holiday, and if a legal holiday, then on the next secular day following,
at 10 A.M., or at such other date and time as shall be designated from time to
time by the board of directors and stated in the notice of the meeting, at which
they shall elect by a plurality vote a board of directors, and transact such
other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by
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the certificate of incorporation, may be called by the president and shall be
called by the president or secretary at the request in writing of a majority of
the board of directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as
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originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would
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be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be not less than one nor more than six. The first board shall consist of
two directors. Thereafter, within the limits above specified, the number of
directors shall be determined by resolution of the board of directors or by the
stockholders at the annual meeting. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly
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created directorship, the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of
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directors, or in the event such meeting is not held at the time and place so
fixed by the stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written waiver
signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
one day's notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
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Section 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a
8
<PAGE>
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
9
<PAGE>
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
10
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ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
11
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Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof
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shall be expressly delegated by the board of directors to some other officer or
agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give or cause to be given, notice of all meetings of the
stockholders and special meetings of the board of directors, and shall perform
such other duties as may be prescribed by the board of directors or president,
under whose supervision he shall be. He shall have custody of the corporate seal
of the corporation and he, or an assistant secretary, shall have authority to
affix the same
13
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to any instrument requiring it and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
14
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Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
15
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Within a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a written
notice containing the information required to be set forth or stated on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that
the corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its
16
<PAGE>
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to
17
<PAGE>
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting: provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
18
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
19
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CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The Company shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof) who was or is made, or threatened to be made, a party to
an action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether involving any actual or alleged breach of duty, neglect
or error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or
20
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agency, including an action by or in the right of the Company to procure a
judgment in its favor and an action by or in the right of any other corporation
of any type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, which any director or officer
of the Company is serving or served in any capacity at the request of the
Company, by reason of the fact that he, his testator or intestate is or was a
director or officer of the Company, or is serving or served such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in
settlement, and costs, charges and expenses, including attorneys' fees, incurred
therein or in any appeal thereof.
(b) The Company shall indemnify other persons and reimburse the expenses
thereof, to the extent required by applicable law, and may indemnify any other
person to whom the Company is permitted to provide indemnification or the
advancement of expenses, whether pursuant to rights granted pursuant to, or
provided by, the Delaware General Corporation Law or otherwise.
(c) The Company shall, from time to time, reimburse or advance to any
person referred to in paragraph (a) the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in paragraph (a) above, upon receipt of a written
undertaking by or on behalf of such person to repay such amount(s) if a judgment
or other final adjudication adverse to the director or officer establishes that
(i) his acts were committed in bad faith or were
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the result of active and deliberate dishonesty and, in either case, were
material to the cause of action so adjudicated, (ii) he personally gained in
fact a financial profit or other advantage to which he was not legally entitled,
or (iii) his conduct was otherwise of a character such that Delaware law would
require that such amount(s) be repaid.
(d) Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred in clause (i), in any capacity shall be
deemed to be doing so at the request of the Company.
(e) Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article may elect
to have the right to indemnification (or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action, suit or proceeding, to the extent
permitted by applicable law, or on the basis of the applicable law in effect at
the time indemnification is sought.
(f) The right to be indemnified or to the reimbursement or advancement of
expenses pursuant to this Article (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to
22
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events occurring prior to the adoption hereof, and (iii) shall continue to exist
after the rescission or restrictive modification hereof with respect to events
occurring prior thereto.
(g) If a request to be indemnified or for the reimbursement or advancement
of expenses pursuant hereto is not paid in full by the Company within thirty
days after a written claim has been received by the Company, the claimant may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled also to be paid the expenses of prosecuting such claim. Neither the
failure of the Company (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of or reimbursement or
advancement of expenses to the claimant is proper in the circumstances, nor an
actual determination by the company (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant is not
entitled to indemnification or to the reimbursement or advancement of expenses,
shall be a defense to the action or create a presumption that the claimant is
not so entitled.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-
laws may be adopted by the stockholders or by the board of directors, when such
power is conferred upon the board of directors by the certificate of
incorporation at any regular
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meeting of the stockholders or of the board of directors or at any special
meeting of the stockholders or of the board of directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal by-laws
is conferred upon the board of directors by the certificate of incorporation it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal by-laws.
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EXHIBIT 3.15
CERTIFICATE OF INCORPORATION
OF
CHARLES COAL COMPANY
-----ooOoo-----
1. The name of the corporation is
CHARLES COAL COMPANY
2. The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one hundred (100) and the par value of each of such
shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars
($100.00).
5A. The name and mailing address of each incorporator is as follows:
<PAGE>
NAME MAILING ADDRESS
---- ---------------
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19801
M. A. Ferrucci 100 West Tenth Street
Wilmington, Delaware 19801
E. L. Kinsler 100 West Tenth Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
R. H. Freeman One Beacon Street Boston,
Massachusetts 02108
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
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<PAGE>
9. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 7th day of
April, 1980.
/s/ K. L. Husfelt
-------------------------
K. L. Husfelt
/s/ M. A. Ferrucci
-------------------------
M. A. Ferrucci
/s/ E. L. Kinsler
-------------------------
E. L. Kinsler
3
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
CHARLES COAL COMPANY, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable an amendment to the Certificate of
Incorporation of said corporation as follows:
RESOLVED, That this Board of Directors considers the amendment of the
Company's Certificate of Incorporation by the addition thereto after
paragraph "9" of a new paragraph numbered "10" and reading as set forth
below to be advisable and in accordance with the desire of the Company's
stockholders that the personal liability of the Company's directors be
eliminated or limited except in certain specified instances:
10. A director of this corporation shall under no circumstance
have any personal liability to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director except for
those specific breaches and acts or omissions with respect to which
the Delaware General Corporation Law expressly provides that this
provision shall not eliminate or limit such personal liability of
directors.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
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THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said CHARLES COAL COMPANY has caused this certificate
to be signed by H. W. Williams, its President, and attested by J. L. Klinger,
its Secretary, this 29th day of September, 1987.
(SEAL)
By: /s/ H. W. Williams
-----------------------------
H. W. Williams, President
ATTEST:
By: /s/ J.L. Klinger
------------------------
J. L. Klinger, Secretary
5
<PAGE>
EXHIBIT 3.16
CHARLES COAL COMPANY
------ooOoo------
B Y - L A W S
------ooOoo------
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1981, shall be held on the second Tuesday of April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and
<PAGE>
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in
2
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writing of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for
3
<PAGE>
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt
4
<PAGE>
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than ten. The first board shall
consist of one director. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
5
<PAGE>
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as
6
<PAGE>
hereinafter provided for special meetings of the board of directors, or as shall
be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on twenty-four hours' notice to each director, either personally or by
telephone, mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required
7
<PAGE>
or permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of
8
<PAGE>
directors to act at the meeting in the place of any such absent or disqualified
member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of
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<PAGE>
directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in
10
<PAGE>
the United States mail. Notice to directors may also be given by telegram or
telephone.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
11
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Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election)
12
<PAGE>
shall perform the duties of the president, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary
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<PAGE>
or in the event of his inability or refusal to act, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and
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<PAGE>
other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a vice-
president and the treasurer or an assistant treasurer, or the secretary or an
assistant secretary of the corporation, certifying the number of shares owned by
him in the corporation.
Section 2. Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
15
<PAGE>
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
16
<PAGE>
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
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CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board
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of directors by the certificate of incorporation at any regular meeting of the
stockholders or of the board of directors or at any special meeting of the
stockholders or of the board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal by-laws is conferred
upon the board of directors by the certificate of incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal by-laws.
20
<PAGE>
EXHIBIT 3.17
CERTIFICATE OF INCORPORATION
OF
COAL PROPERTIES CORP.
-----ooOoo-----
1. The name of the corporation is
COAL PROPERTIES CORP.
2. The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one hundred (100) and the par value of each of such
shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars
($100.00).
<PAGE>
5A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19810
B. A. Schuman 100 West Tenth Street
Wilmington, Delaware 19810
E. L. Kinsler 100 West Tenth Street
Wilmington, Delaware 19810
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
R. H. Freeman One Beacon Street
Boston, Massachusetts 02108
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the
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<PAGE>
corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the board of directors or in the by-laws of the corporation.
9. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators herein before
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying, that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 13th day of
May, 1980.
/s/ K. L. Husfelt
-------------------------
K. L. Husfelt
/s/ B. A. Schuman
-------------------------
B. A. Schuman
/s/ E. L. Kinsler
-------------------------
E. L. Kinsler
3
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
COAL PROPERTIES CORP., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written amount of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable an amendment to the Certificate of
Incorporation of said corporation as follows:
RESOLVED, That this Board of Directors considers the amendment of
the Company's Certificate of Incorporation by the addition thereto
after paragraph "9" of a new paragraph numbered "10" and reading as
set forth below to be advisable and in accordance with the desire of
the Company's sole stockholder that the personal liability of the
Company's directors be eliminated or limited except in certain
specified instances:
10. A director of this corporation shall under no
circumstance have any personal liability to the corporation or
its stockholders for monetary damages for breach of fiduciary
duty as a director except for those specific breaches and acts or
omissions with respect to which the Delaware General Corporation
Law expressly provides that this provision shall not eliminate or
limit such personal liability of directors.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of sections 242 and 228 of the General Corporation Law
of the State of Delaware.
4
<PAGE>
IN WITNESS WHEREOF, said COAL PROPERTIES CORP. has caused this certificate
to be signed by H. W. Williams, its President, and attested by J. L. Klinger,
its Secretary, this 1st day of July, 1987.
(SEAL)
BY: /s/ H.W. Williams
--------------------------
H. W. Williams , President
ATTEST:
By: /s/ J. L. Klinger
------------------------
J. L. Klinger, Secretary
5
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Coal Properties Corp., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of Coal Properties
Corp., a resolution was duly adopted setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable and directing that said amendment be considered by the stockholder of
said corporation. The resolution setting forth the proposed amendment is as
follows:
RESOLVED: That it is advisable to amend and restate Article 4 of the
Corporation's Certificate of Incorporation as follows:
"4. The total number of shares of all classes of capital stock
which the corporation has the authority to issue is 59,952
which shall be divided into two classes as follows: 59,852
shares of Preferred Stock, par value TEN DOLLARS ($10) per
share, and 100 shares of Common Stock, par value ONE DOLLAR
($1) per share.
The voting powers, preferences and other special rights and
qualifications, limitations or restrictions of the above
classes of stock are as follows:
PREFERRED STOCK
The holders of the Preferred Stock shall be entitled to receive
out of the surplus or net profits of the corporation, dividends, when
and as declared by the directors, payable at such periods as shall be
fixed by them, at the rate of 8% per annum on the par value of
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<PAGE>
such stock, and no more, before any dividend shall be paid or set
apart for payment upon the Common Stock.
The dividends on the Preferred Stock shall be noncumulative.
In the event of any liquidation, dissolution or winding up,
whether voluntary or involuntary, of the corporation, the holders of
the Preferred Stock shall be entitled to be paid the sum of TEN
DOLLARS ($10) per share and an amount equal to any declared and unpaid
dividends thereon, before any amount shall be paid to the holders of
the Common Stock, and after the payment to the holders of the
Preferred Stock of such amounts, the remaining assets shall be
distributed to the holders of the Common Stock.
Except as required by law, the holders of the Preferred Stock
shall not be entitled to a vote at any meeting of the shareholders or
in respect of any written vote taken in lieu thereof.
The Preferred Stock shall not be convertible into the Common
Stock or any other class of stock of the corporation.
COMMON STOCK
Subject to the requirements of law and this Certificate of
Incorporation, as amended from time to time, the holders of Common
Stock shall (i) in the event of any liquidation, dissolution or other
winding up of the corporation, whether voluntary or involuntary, and
after all holders of the Preferred Stock shall have been paid in full
the amount to which they shall be entitled, be entitled to receive all
the remaining assets of the corporation, such assets to be distributed
pro rata to holders of the Common Stock; and (ii) after payment in
full of all dividends to which holders of the Preferred Stock shall be
entitled, be entitled to receive such dividends as and when the same
shall be declared from time to time by the Board of Directors of the
corporation out of funds legally available therefor. Except as
otherwise required by law and the provisions of this Certificate of
Incorporation, the holders of the Common Stock of the corporation
possess full voting power for the election of directors and for all
other purposes and each holder thereof shall be entitled to one vote
for each share held by such holder."
SECOND: That thereafter, pursuant to the resolution of its Board of
Directors, the sole stockholder of said corporation did,
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<PAGE>
by action by written consent of said sole stockholder in lieu of a special
meeting of stockholders in accordance with Section 228 of the General
Corporation Law of the State of Delaware, approve and adopt said amendment,
notice of such action by consent not being required under said Section 228
because said action was unanimous.
THIRD: That said amendment was duly adopted in accordance with the
provision of Section 242 of the General Corporation Law of the State of Delaware
and, in accordance with the provisions of Section 103 thereof, shall become
effective when filed with the Secretary of the State of Delaware.
8
<PAGE>
IN WITNESS WHEREOF, said Coal Properties Corp. has caused this certificate
to be signed by Fred C. Raskin, its Senior Vice-President & Treasurer, and
attested by Larry E. Scholl, its Vice-President, General Counsel and Secretary,
this 30th, day of March, 1987
---- -----
COAL PROPERTIES CORP.
By /s/ Fred L. Ruskin
------------------
Senior Vice-President
and Treasurer
ATTEST:
By /s/ Larry E. Scholl
-----------------------
Vice President, General
Counsel and Secretary
9
<PAGE>
EXHIBIT 3.18
COAL PROPERTIES CORP.
-----ooOoo-----
B Y - L A W S
-----ooOoo-----
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held at such place either within or without the State of Delaware as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1981,
shall be held on the second Tuesday of April if not a legal holiday, and if a
legal holiday, then on the next
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secular day following, at 10:00 A.M., or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
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Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a
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quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
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notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be not less than one nor more than ten. The first board shall consist of
one director. Thereafter, within the limits above specified, the number of
directors shall be determined by resolution of the board of directors or by the
stockholders at the annual meeting. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold of(Pounds)ice until the next
annual election and until their successors are duly elected and shall
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qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under the
direction of its board of directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these by-laws directed or required to be
exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors shall
be held at such time and place as shall be fixed by the vote of the stockholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected
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directors in order legally to constitute the meeting, provided a quorum shall be
present, In the event of the failure of the stockholders to fix the time or
place of such first meeting of the newly elected board of directors, or in the
event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
twenty-four hours notice to each director, either personally or by telephone,
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a
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quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board may designate one
or more directors as alternate members of any committee, who may replace
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any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of any such
absent or disqualified member.
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
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Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
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ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram or telephone.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
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THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The vice-
presidents shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election), shall,
in the absence of
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the treasurer or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a vice-
president and the treasurer or an assistant treasurer, or the secretary or an
assistant secretary of the corporation, certifying the number of shares owned by
him in the corporation.
Section 2. Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation
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alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the board of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to
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receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting: provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
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CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of
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directors by the certificate of incorporation at any regular meeting of the
stockholders or of the board of directors or at any special meeting of the
stockholders or of the board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal by-laws is conferred
upon the board of directors by the certificate of incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal by-laws.
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EXHIBIT 3.20
AMENDED AND RESTATED VENTURE AGREEMENT
OF
COLONY BAY COAL COMPANY
Amended and Restated Venture Agreement (the "Agreement"), dated and
effective as of the 1st day of January, 1983, by and between WALNUT COAL
COMPANY, a West Virginia corporation ("Walnut"), and CHARLES COAL COMPANY, a
Delaware corporation ("Charles"), (Walnut and Charles being hereinafter
sometimes collectively called "Partners" and individually called a
"Partner"),
W I T N E S S E T H :
WHEREAS, Walnut and Charles have heretofore entered into a certain
Venture Agreement dated as of November 20, 1980 (the "Original Agreement"),
pursuant to which Walnut and Charles have formed a partnership (the
"Partnership") under the West Virginia Uniform Partnership Act and have
adopted the Original Agreement as the Articles of Partnership of the
Partnership; and
WHEREAS, the Partnership has and is engaged in the coal mining
business in West Virginia as further described below; and
WHEREAS, the Partners desire to provide that Walnut shall furnish
to the Partnership certain services in connection with the continued
operation of the Colony Bay Reserve (as defined below), for the compensation
and on the other terms set forth herein;
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NOW, THEREFORE, to effect the foregoing and in consideration of the
mutual covenants and benefits herein set forth and contemplated the Partners
(i) agree that the Original Agreement is hereby amended and restated in its
entirety by this Agreement, and (ii) further agree as follows:
SECTION 1. ORGANIZATION OF THE PARTNERSHIP
-------------------------------
1.1 Organization.
------------
(a) The Partners hereby adopt this Agreement as the Amended and
Restated Articles of Partnership of the Partnership in the place and stead
of the Original Agreement and hereby agree that the Partnership shall be
continued for the limited purposes and scope set forth herein.
(b) Except to the extent otherwise provided herein, the rights and
liabilities of the Partners and the conduct and termination of the
Partnership shall continue to be governed by the West Virginia Uniform
Partnership Act.
(c) The Partners will promptly execute all certificates and other
documents, and make all such filings and recordings and perform such other
acts as may now or hereafter be necessary or desirable, to comply with the
requirements of West Virginia law for the carrying on of the business of
the Partnership.
(d) Each Partner shall continue to be a general partner and each
Partner's interest in the Partnership
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shall continue to be fifty percent (hereinafter called its "Partnership
Interest").
(e) All real and other property including permits and licenses
owned by or granted to or held by the Partnership shall continue to be
deemed to be owned by or granted to or held by the Partnership as an
entity, and no Partner, individually, shall have any ownership of, or right
to use, any such property, except as provided in this Agreement.
1.2 Name. The name of the Partnership shall continue to be "COLONY
----
BAY COAL COMPANY", and the Partnership's business and affairs shall continue
to be conducted only under that name.
1.3 Effective Date and Term. This Agreement shall be effective as
-----------------------
of the date hereof (hereinafter called the "Effective Date") and the
Partnership shall continue in effect until terminated as provided in Section
8 hereof.
1.4 Principal Office. The principal office and place of business
----------------
of the Partnership shall be Bluestone Coal Building, 818 North Eisenhower
Drive, Beckley, West Virginia 25801 or such other location as the Partners
may designate.
1.5 Purposes and Scope. The sole purpose of the Partnership shall
------------------
be to engage in the business of mining coal in the seams and veins of coal in
the areas covered
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by the SubSublease and Consent dated November 20, 1980 between Eastern
Royalty Corp. ("Royalty") and the Partnership (said subleased premises being
hereinafter called the "Colony Bay Reserve") and in other activities
incidental to such business, which activities may from time to time include:
(a) developing strip, deep or auger mines and conducting mining operations in
and on the Colony Bay Reserve; (b) acquiring by purchase, lease, sublease or
otherwise rights to mine and extract coal in the Colony Bay Reserve; (c)
acquiring by purchase, lease, sublease or otherwise surface land or rights to
the use of surface land; (d) acquiring by purchase, lease or otherwise such
machinery, equipment and other facilities as may be necessary or advisable
for such operations; (e) entering into such engineering, operating or mining
agreements with third parties as may be necessary or advisable to accomplish
the foregoing; (f) transporting coal produced from such operations by such
means as may be necessary or advisable (but not acting as a common carrier in
connection therewith); (g) selling such coal and engaging in marketing
activities incidental thereto; and (h) performing all other activities,
including the borrowing of money and the mortgaging of real estate or
personal property of the Partnership in connection therewith, as are
necessary or incidental to conducting such business.
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The Partnership shall have the power to do any act and thing and to
enter into any contract incidental to, or necessary, proper or advisable for,
the accomplishment or attainment of the purpose of the Partnership specified
in this Agreement.
1.6 Partner's Authority. Except as otherwise provided in this
-------------------
Agreement, neither Partner alone shall have any authority to act for, or to
assume any obligations or responsibilities on behalf of, the other Partner or
the Partnership. Each Partner will indemnify the Partnership and the other
Partner against any claim, loss or damage to the Partnership or other Partner
which may result from the Partner's breach of this Subsection 1.6.
SECTION 2. OTHER AND COMPETING BUSINESS
Except as otherwise provided herein, nothing contained in this
Agreement shall be deemed to restrict in any way the freedom of either
Partner, or any Affiliate of either Partner, to conduct, independently of the
Partnership, and whether or not in competition with the Partnership, any
business or activity outside the Colony Bay Reserve (other than the business
contemplated to be performed by the Partnership under and in accordance with
this Agreement) without any accountability to the Partnership or to the other
Partner. No provision of this Agreement shall be interpreted in such a
manner as to impose limitations
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upon the activities of either Partner which will have the effect of limiting
competition. For the purposes of this Agreement, "Affiliate" means, as to
any entity, a person, corporation, company, trust, firm or other entity which
directly or indirectly controls, or is controlled by, or is under common
control with, such entity.
SECTION 3. CONTRIBUTIONS TO THE PARTNERSHIP
As and when the Partnership determines from time to time that it
requires cash, each Partner hereby agrees that it shall make cash
contributions to the Partnership in an amount equal to fifty percent of each
such cash requirement.
SECTION 4. MANAGEMENT OF THE PARTNERSHIP
4.1 Management of the Colony Bay Reserve.
------------------------------------
(a) Walnut, as managing general partner, shall supervise, manage and
direct the operation of all of the mines and mining activities of the
Partnership, upon the terms and conditions set forth below:
(i) Walnut shall at its expense perform or cause to be
performed or furnished, all of the work and services described in
Appendix A attached hereto and with the authority and in accordance
with the terms and conditions set forth in said Appendix A.
(ii) The Partnership shall pay to Walnut, as a guaranteed
payment (as such term is defined in Section 707(c) of the Internal
Revenue Code of
6
<PAGE>
1954, as amended), a management fee based upon the number of tons of
raw coal mined by the Partnership in each calendar year, as follows,
subject to adjustment as hereinafter provided:
(1) $1.43 per ton for all coal mined up to but not in excess
of 700,000 tons in any year;
(2) $1.37 per ton for all coal mined in excess of 700,000
tons up to but not in excess of 1,200,000 tons in any year; and
(3) $1.12 per ton for all coal mined in excess of 1,200,000
in any year.
(iii) The management fee set forth in subsection (ii) above
shall be adjusted from time to time for all costs incurred by Walnut
in the performance of its services hereunder that are directly
applicable to such services and that result from complying or
preparing to comply with any federal, state or local law, regulation
or order enacted or adopted after the date hereof or from any
amendment or change in any existing federal, state or local law,
regulation or order changed or amended after the date hereof. In the
event of such an enactment, adoption, change or amendment, Walnut
shall determine the cost of complying or preparing to comply, Charles
shall have the right to examine and question any such
7
<PAGE>
determination and, if the Partners shall agree on the amount of the
adjustment, the amount so determined shall be added to the management
fee (as then adjusted) to be effective as incurred by Walnut. If the
Partners shall not agree, the amount of such adjustment shall be
determined by arbitration under Section 9 hereof.
(iv) The management fee (as adjusted pursuant to subsection
(iii) above) shall be further adjusted annually as of May 1 (but not
below (x) $1.43 per ton for all coal mined up to but not in excess of
700,000 tons in any year, (y) $1.21 per ton for all coal mined in
excess of 700,000 tons up to but not in excess of 1,200,000 tons in
any year and (z) $.99 per ton for all coal mined in excess of
1,200,000 tons in any year, in each case subject to adjustment
pursuant to subsection (iii) above) by a percentage amount equal to
the percentage increase or decrease in the average gross selling price
of all of the coal produced by the Partnership during the preceding
calendar year as compared to a base gross selling price of $32.00 per
ton. The average gross selling price for any calendar year shall be
the gross f.o.b. mine sale price, including any premium-penalty
adjustments for coal quality, for such coal sold during such calendar
year, whether or not actually paid by
8
<PAGE>
vendees and without deduction for taxes, commissions, royalties or any
other matter or thing, divided by the total number of net tons of such
coal sold during such year.
An example of such adjustment is as follows:
MF = Management Fee = $1.43
BP = Base Gross Selling Price = $32.00
AP = Average Gross Selling Price = $40.00
AF = Adjusted Management Fee
AF = (MF) AP
--
BP
AF = ($1.43) $40 = $1.43 (1.25) = $1.79
----
$32
(v) In all adjustments of the management fee, any fraction of
one cent shall be rounded to the nearest whole cent by dropping the
last significant integer if five or less or by rounding up if six or
more.
(vi) As used herein, the term "ton" shall mean a net ton of
2,000 pounds.
(vii) All sums due hereunder shall be payable monthly by the
15th day of each month for the preceding calendar month.
(viii) The Partnership shall, at its expense, employ all labor
necessary to carry on the operation of its mines and mining
activities, including all mine superintendents, both deep and surface,
mine engineering and mine office staffs,
9
<PAGE>
and all other employees below the level of mine superintendent, all of
whom shall be employees of and shall be under the direction and
control of the Partnership, but who shall be subject to supervision by
Walnut.
(ix) Walnut shall, at its expense, (1) employ all
supervisory and management personnel above the level of mine
superintendent necessary for the efficient and economic operation of
the mines and mining activities of the Partnership, and furnish to
them such employee benefits, including pension, profit-sharing,
insurance and bonus plans, as it may deem advisable; (2) supply
appropriate transportation facilities for such supervisory personnel,
in its discretion; (3) oversee all services and work performed at the
mine; (4) perform overhead engineering and other work not appropriate
for performance at the mining site; and (5) be responsible for all
planning and forecasting. The cost of all necessary legal, accounting
and other professional services not rendered by officers or employees
of Walnut shall be borne by the Partnership
(x) Term. The provisions of this Section 4.1 shall take effect
----
as of the Effective Date and shall continue in effect until November
20, 1986, and shall continue automatically thereafter from
10
<PAGE>
year to year, subject, however, to the right of Walnut or the
Partnership to terminate the provisions of this Section 4.1 on
November 20, 1986, or thereafter, by giving six months' written notice
to the other party of such election to terminate said provisions in
the manner and form provided for giving of notice herein.
(b) Nothing contained in this Section 4.1 shall be deemed or
construed to create any rights of ownership in Walnut (beyond or in
addition to its rights as Partner in the Partnership pursuant to the terms
of this Agreement) of any documents, records, reports, plans or any other
instruments created, written or copied by Walnut pursuant to the
performance of its management responsibilities under this Section 4.1. All
such records and documents shall be available to Charles for inspection and
copying during normal business hours and shall be delivered to Charles upon
the termination of this Agreement or the termination of Walnut's management
responsibilities under the provisions of this Section 4.1.
(c) No termination (for whatever reason) of Walnut's management
responsibilities under the provisions of this Section 4.1 or default in the
performance by Walnut or the Partnership of any obligations hereunder,
shall be deemed or construed to constitute a default under the remaining
provisions of
11
<PAGE>
this Agreement or to create any right of termination of this Agreement or
to constitute, require or permit any dissolution of or withdrawal of Walnut
from the Partnership.
(d) Any termination of this Agreement or dissolution of or withdrawal
of Walnut from the Partnership (for whatever reason) shall terminate
Walnut's management responsibilities under the provisions of this Section
4.1.
(e) The amounts received by Walnut pursuant to the terms of
subsection (a)(ii) (as adjusted pursuant to subsections (a)(iii) and (iv))
of this Section 4.1 shall constitute a guaranteed payment (as such term is
defined in Section 707 of the Internal Revenue Code of 1954, as amended
(the "Code")) to Walnut for its services as managing general partner and no
such payment shall, for purposes of any other provision of this Agreement,
be deemed or construed to constitute (i) net income of the Partnership
allocable to Walnut, or (ii) a distribution of income by the Partnership to
Walnut, nor shall any adjustment be made of Walnut's Partnership Interest
or any other percentage, contribution or account by reason of receipt of
any such amounts by Walnut.
(f) The Partnership will appoint officers or employees of Walnut as
its authorized representatives, from time to time, to do and perform such
specific acts as may be designated by the Partnership and which are
12
<PAGE>
deemed convenient or necessary for the day-to-day operation of the business
of the Partnership.
(g) The Partnership shall at its expense provide appropriate
insurance coverage against liabilities arising from its operations and
activities, including property damage, in such amounts and with such
insurers as shall be determined by the Partnership. Such policies shall
name Charles and Walnut as co-insureds where appropriate.
(h) Walnut shall perform its services under this Section 4.1 and
Appendix A in such manner as to provide efficient and economical planning,
construction, development and mining operations for the Partnership.
Walnut agrees that it will exercise its best efforts in carrying out its
obligations under this Section 4.1 and Appendix A.
4.2 General Management of the Partnership.
-------------------------------------
(a) The ultimate responsibility for the affairs of the Partnership
shall be in the Partners, and each Partner shall have the right to
participate fully and actively in the management of the business of the
Partnership as herein provided. Subject to the provisions of this
Agreement and except to the extent otherwise provided in Section 4.1 and
Appendix A, all action and decisions in the management of the business of
the Partnership shall be taken jointly by agreement between both Partners.
13
<PAGE>
(b) Each Partner has, by notice to the other Partner, appointed a
"Managing Agent" and one or more "Executive Agents" (herein collectively
called "Agents"). At any time and from time to time, either Partner may
remove and appoint a replacement for any of its Agents by notice to the
other Partner, and shall do so immediately in the event of the death,
resignation or substantial inability or incapacity of any of its Agents.
In the absence or incapacity of a Partner's Managing Agent, one of such
Partner's Executive Agents (in the order designated by such Partner) shall
have the responsibility of and shall act for such Managing Agent. Each
Partner represents and warrants that each Agent so appointed by it by such
notice has and shall have all authority requisite to the duties of such
Agent hereunder.
(c) Agreement on behalf of either Partner pursuant to this Agreement
(except as contemplated in Subsection 4.2(f) hereof) shall be communicated
through its Managing Agent. Except to the extent otherwise provided in
Section 4.1, the Managing Agents shall be responsible for the day-to-day
management of the business of the Partnership. Meetings of the Managing
Agents (and any other Agents) shall be held at such intervals and at such
places as the Managing Agents shall determine. Action may be taken and
decisions made (subject to the limitations set forth in Subsections 4.2(e)
and 4.2(f)
14
<PAGE>
hereof) by either written or oral agreement of the Managing Agents for each
Partner. Actions taken and decisions made by a Managing Agent (or an
Executive Agent acting for a Managing Agent) shall be binding upon the
Partner by whom he was appointed.
(d) The Managing Agents may from time to time adopt detailed rules
and procedures not inconsistent with this Agreement (including Appendix A)
for the management of the business of the Partnership, including rules and
procedures for the establishment of one or more managing committees, the
membership of such managing committees and the delegation of
responsibilities of the Managing Agents to such managing committees.
(e) The following actions shall require in every event the written
consent of each Partner signed either by its Managing Agent or by another
officer thereof duly authorized "thereunto:
(i) The entering into of any contract or agreement (including
without limitation any contract or agreement for engineering,
architectural, construction, environmental, financial or other
consulting services, or any lease or other acquisition of equipment or
facilities or extension of credit on behalf of a supplier) calling
for, or reasonably expected to
15
<PAGE>
call for, the payment over its term by the Partnership of more than
$100,000.
(ii) The entering into of any contract or agreement for the
sale or marketing of coal, the term of which exceeds one year; and the
establishment of general policies, terms and conditions under which
any other sale of coal will be made.
(iii) Incurring, guaranteeing or otherwise becoming liable for
indebtedness for borrowed money in an amount in excess of $100,000 in
the aggregate.
(iv) The acquisition of any land or other interests in real
estate reasonably estimated to have a price in excess of $100,000.
(v) The sale or transfer of any property or asset of the
Partnership, other than obsolete or worn out assets and property or
assets reasonably estimated to be worth in each case less than
$l00,000, except in the ordinary course of business.
(vi) The employment or discharge of employees of the
Partnership at the level of the Mine Superintendent.
(vii) The adoption of pension and other employee benefit and the
awarding of bonuses to employees.
16
<PAGE>
(viii) The waiver by the Partnership of any default by
Walnut under Section 4.1 hereof or the assignment, termination,
extension or amendment of any of the obligations of Walnut under
Section 4.1 hereof.
(ix) The waiver by the Partnership of any default by Eastern
Associated Coal Corp. ("EACC") under the Coal Cleaning Contract (the
"Cleaning Contract") or by Associated Coal Sales Corp. ("ACSC") or
Castner, Curran & Bullitt, Inc. ("CCB") under the Coal Sales Agreement
(the "Sales Agreement"), each dated as of November 20, 1980, entered
into with the Partnership or the termination, extension, amendment or
assignment of either agreement or the consent to the assignment of
either agreement by EACC, ACSC or CCB.
(f) The following actions shall require in every event the written
consent of each Partner, executed by an officer thereof duly authorized
"thereunto (with evidence of specific authority from the board of directors
of the appropriate Partner):
(i) Any amendment, modification, change or variation in or to
this Agreement.
(ii) Any discontinuance or substantial reduction of the
business of the Partnership contemplated by this Agreement.
17
<PAGE>
(iii) The liquidation or dissolution of the Partnership, except
pursuant to Section 8 hereof.
(iv) Any merger or consolidation of the Partnership into or
with any other entity, or any transfer, assignment or encumbrance of a
Partner's Partnership Interest except pursuant to Section 7 hereof.
(g) Notwithstanding the limitations, obligations and liabilities
established between the Partners hereunder, any person transacting business
with the Partnership may rely upon the fact that each Partner and each
Managing Agent is an agent of the Partnership for the purposes of its
business, and the act of any Partner or Managing Agent, including the
execution in the Partnership's name of any instrument for apparently
carrying on in the usual way the business of the Partnership (as
interpreted under the West Virginia Uniform Partnership Act), will bind the
Partnership unless the person with whom he is dealing has knowledge of the
fact that he has no such authority.
(h) Either Partner alone shall have the right at any time to assert
and enforce at law, in equity or otherwise, in the name and on behalf of
the Partnership any claim which the Partnership may have against Walnut in
connection with its performance under Section 4.1 hereof (subject to the
provisions of Section 9 hereof), or against EACC in connection with its
performance under
18
<PAGE>
the Cleaning Contract or against ACSC or COB in connection with their
performance under the Sales Agreement. The Partnership shall pay the costs
and expenses (including reasonable legal fees) of enforcing any such claim
provided that the recovery to the Partnership with respect to such claim
exceeds such costs and expenses.
SECTION 5. ACCOUNTING MATTERS; BOOKS AND RECORDS; TAX RETURNS
5.1 Fiscal Year. The fiscal year of the Partnership shall continue
-----------
to be the calendar year.
5.2 Books and Reports. The Partnership shall cause to be prepared
-----------------
and maintained complete books and records, on an accrual basis, regarding all
phases of its business, including without limitation, construction, marketing
activities, procurement and purchasing, contract administration, financial
planning, administration, accounting, reporting, legal, capital expenditures,
and taxes, royalties and other operation expenses, capital and operation
budgets and other reporting procedures. The Partnership shall keep its
books of accounts in accordance with generally accepted accounting principles
consistently followed, except as otherwise agreed in writing by the Partners.
Each Partner shall have the right (at its own expense) to inspect, audit and
copy any and all such books and records at all reasonable times, which right
may be exercised through
19
<PAGE>
one or more Agents or employees of such Partner designated by such Partner
and by one or more attorneys, independent engineers or independent certified
public accountants designated by such Partner.
5.3 Financial Records; Independent Audits. Promptly after the end of
-------------------------------------
each month, the Partnership will cause to be prepared and deliver to each
Partner financial statements and related reports reflecting the financial
position of the Partnership at the close of the month and the results of
operations of the Partnership for the month. The Partnership shall have an
audit of its books made as soon as practicable after the close of each fiscal
year by Arthur Andersen & Co. or such other nationally recognized firm of
public accountants as the Partners shall designate, and shall furnish each
Partner copies of such financial statements and related reports reflecting
the financial position of the Partnership at the close of the fiscal year and
the results of operation of the Partnership for the fiscal year, together
with the certificate of the public accountants covering the results of such
audit.
5.4 Taxes and Tax Returns. The Partnership shall prepare and file
----------------------
all tax returns required to be filed by the Partnership pursuant to the Code
or any successor statutes, and all state and local tax returns required to be
filed by the Partnership. The Partnership shall not make an election to
defer development
20
<PAGE>
expenditures under Section 616(b) of the Code, entitled "Development
Expenditures". In the preparation of the Partnership tax returns,
depreciation methods will be adopted and other elections will be made to
maximize percentage depletion over the life of the project. When percentage
depletion is unaffected the most rapid available method of depreciation will
be elected. No changes in the accounting methods for the purpose of
preparation of tax returns of the Partnership shall be made without the
consent of each Partner.
SECTION 6. PROFITS, LOSSES AND DISTRIBUTIONS
6.1 Profits and Losses. All profits and losses of the Partnership
------------------
shall be shared equally by the Partners except as set forth below:
(a) For book and tax purposes, all expenses of the Partnership with
respect to royalty obligations payable to Royalty relating to the Colony
Bay Reserve in excess of the royalty obligations payable by EACC to The
Charleston National Bank, as Trustee and successor in interest of Donald D.
Shepard et ux., pursuant to the Agreement of Lease dated January 29, 1946,
-- --
as amended, and relating to the Colony Bay Reserve (the "Excess Royalty
Payments") shall be allocated only to Charles. The Partnership shall
distribute to Walnut cash equal to the Excess Royalty Payments, such
distributions to be made contemporaneously with the payment of royalty
obligations giving rise to such Excess Royalty Payments.
21
<PAGE>
(b) The allocation between the Partners of percentage depletion for
tax purposes shall be made so that Walnut is allocated the amount it would
have been entitled to receive if the Partnership's royalty obligation
referred to in clause (a) above were no greater than the royalty obligation
of EACC referred to in said clause. In the event there is an insufficient
amount of percentage depletion to allocate to Walnut pursuant to the
preceding sentence, Charles shall pay to Walnut cash equal to the pretax
value to Walnut of such deficiency.
(c) The Partners may from time to time enter into additional
agreements allocating for tax or book purposes certain items of income and
expense.
6.2 Distributions. Except as otherwise specifically provided in this
-------------
Agreement, all distributions of any Partnership assets shall be made only as
and when determined by the prior written agreement of both Partners and all
distributions of any Partnership assets, including those on termination and
dissolution of the Partnership, shall be shared equally by the Partners.
SECTION 7. RESTRICTIONS ON TRANSFER OF PARTNERSHIP INTERESTS
Neither Partner may transfer, sell, alienate, assign or otherwise
dispose of all or any part of its interest in the Partnership, whether
voluntarily, involuntarily or by operation of law, or at a judicial
22
<PAGE>
sale or otherwise; provided, however, that nothing herein contained shall be
construed to prohibit either (a) the transfer of Walnut's entire interest in
the Partnership to Bluestone Coal Corporation ("Bluestone") or to any entity
100% of the equity of which is owned directly or indirectly by Bluestone, or
(b) the transfer of Charles' entire interest in the Partnership to Eastern
Gas and Fuel Associates, a Massachusetts voluntary association ("Eastern"),
or to any entity 100% of the equity of which is owned directly or indirectly
by Eastern, so long as such transferee shall, immediately upon such transfer,
become a Partner and expressly assume in writing the due and punctual
performance of all the obligations of the transferring Partner under this
Agreement and consent and undertake in writing to assume and perform all the
obligations hereunder not theretofore performed and discharged by such
Partner and to execute this Agreement and be bound by all the terms and
provisions hereof; provided, however, that no such transfer shall be
permitted without the express written consent of the nontransferring Partner
if such transfer would, in the reasonable opinion of the nontransferring
Partner, result in adverse tax consequences to the nontransferring Partner
under the Code. Whenever pursuant to this Section 7 any transferee is
entitled to become a Partner, the other Partner agrees
23
<PAGE>
to execute an appropriate instrument admitting such transferee as a Partner.
SECTION 8. TERM; DISSOLUTION; TERMINATION
8.1 Effective Date and Term. The Partnership shall be subject to the
-----------------------
terms and provisions of this Agreement as of the Effective Date and shall
continue until terminated in accordance with the provisions of this Section
8. No Partner shall have the right to and each Partner agrees not to
dissolve, terminate or liquidate, or to petition a court for the dissolution,
termination or liquidation of the Partnership, except as provided in this
Agreement.
8.2 Events of Dissolution.
---------------------
(a) The Partnership shall dissolve:
(i) upon the unanimous written agreement of the Partners to
dissolve the Partnership;
(ii) on November 20, 2079;
(iii) upon written notice given by Walnut at any time after the
sixth anniversary of the Effective Date;
(iv) upon the dissolution of a Partner; or
(v) if (A) a Partner shall (1) apply for or consent to the
appointment of a receiver, trustee, assignee for creditors or
liquidator of such Partner, or of all or a substantial part of such
Partner's assets, (2) be subject to an order for relief or be
adjudicated a bankrupt or insolvent
24
<PAGE>
under any bankruptcy or insolvency statute, or file a voluntary
petition in bankruptcy, or be unable to pay its debts generally as
they come due, (3) make a general assignment for the benefit of
creditors, (4) file a petition or an answer seeking reorganization or
arrangement with creditors or to utilize any insolvency law, or (5)
file an answer admitting the material allegations, or consent to, or
default in answering a petition filed against such Partner in any
bankruptcy, reorganization or insolvency proceeding; or (B) a
voluntary petition seeking reorganization of a Partner or an
arrangement with creditors (or any call of creditors) of a Partner or
appointing a receiver, trustee or liquidator of a Partner or of all or
a substantial part of the assets of a Partner, shall be filed and such
petition shall not be dismissed for any period of sixty consecutive
days.
(b) Upon the dissolution of the Partnership pursuant to either
Subsection 8.2(a)(i) or 8.2(a)(ii), the Partnership and its business shall
promptly be wound-up and terminated. Upon the dissolution of the
Partnership caused by any event set forth in Subsection 8.2(a)(iii) through
8.2(a)(v), inclusive, (A) the Partner giving the written notice
contemplated by Subsection 8.2(a)(iii) or as to whom the event described in
Subsections 8.2(a)(iv) or 8.2(a)(v) has occurred (the
25
<PAGE>
"Withdrawing Partner") shall immediately cease to be a Partner, and (B) the
business of the Partnership shall not be wound-up and terminated unless the
remaining Partner shall so elect.
(c) Subject to the provisions of Section 8.2(b) above, in the event
of the occurrence of an event set forth in Subsections 8.2(a)(iii) through
8.2(a)(v), inclusive:
(i) the remaining Partner may send such notices of the
dissolution to such persons and entities as the remaining Partner may
deem appropriate and necessary under the circumstances;
(ii) the remaining Partner shall either continue or promptly
settle the business of the Partnership and, in either case, account
for the interest of the Partners, and such procedure may include
without limitation at the option of the remaining Partner either (A) a
purchase by the remaining Partner of the interest in the Partnership
of the Withdrawing Partner at a price equal to an amount determined in
accordance with an appraisal of the interest of the Withdrawing
Partner (net of all liabilities and obligations to be assumed by the
remaining Partner in accordance with Subsection 8.4(d) hereof) made by
three generally recognized competent coal mining appraisers one of
whom shall be selected by the
26
<PAGE>
Withdrawing Partner, another by the remaining Partner and the third by
the other two appraisers so selected; provided, however, that such
appraisal shall assign no value to the goodwill of the Partnership,
and provided further that such appraisal shall value the assets of the
Partnership as located and erected at the Colony Bay Reserve and as if
such assets were to be used at that location but without regard to the
potential earning power of such assets, or (B) a sale of all or any
part of the assets of the Partnership;
(iii) the goodwill of the Partnership (including the name,
records and files) shall belong to and remain solely vested in the
remaining Partner; and the remaining Partner shall have the right at
all times to continue the business and affairs of the Partnership; and
(iv) the prior written consent of the remaining Partner shall
be required prior to either (A) any disposition of the Partnership
interest of the Withdrawing Partner, or (B) any act by any judge,
trustee or court of bankruptcy which may adversely affect the property
or the business of the Partnership.
8.3 Voluntary Termination and Purchase by Charles.
---------------------------------------------
(a) Charles shall have the right on and after the sixth anniversary
of the Effective Date to terminate the
27
<PAGE>
Partnership at any time by giving to Walnut a notice of termination (the
"Termination Notice") which shall state that Charles will purchase Walnut's
interest in the Partnership at a price determined as hereinafter provided.
Upon giving the Termination Notice, Charles will have the rights of the
remaining Partner as contemplated by Subsections 8.2(b) and 8.2(c) hereof
and shall have the obligation to purchase Walnut's interest in the
Partnership. The purchase price for such purchase shall be the sum of (i)
the price contemplated by Subsection 8.2(c)(ii)(A) and (ii) one-half of the
aggregate income of the Partnership for any period of 36 consecutive
calendar months beginning not more than 36 months prior to the date of the
Termination Notice and ending not more than 36 months after the date of the
Termination Notice, said period to be designated by Walnut within thirty
days after receipt of the Termination Notice. The income of the Partnership
shall be determined by generally accepted accounting principles applied on
a consistent basis except as otherwise agreed in writing by the Partners.
The income of the Partnership for any period subsequent to the date of the
Termination Notice shall be the pretax income of Charles (without deduction
for the Excess Royalty Payments) derived from the business of the
Partnership continued by Charles as the remaining Partner after termination
of the Partnership. If Walnut designates
28
<PAGE>
any period which ends after the Closing (hereinafter defined in Subsection
8.4(a)), the purchase price payable at the Closing shall be the amount
contemplated by Subsection 8.2(c)(ii)(A) and the balance of the purchase
price, if any, shall be payable as soon as practicable after the end of
such period and the determination of such balance.
(b) Charles shall have the option of making payment of the purchase
price contemplated by Subsection 8.3(a) hereof in shares of common stock of
Eastern. In the event Charles elects to make payment in such stock,
Charles shall deliver at the Closing, in lieu of the check contemplated by
Subsection 8.4(c) hereof, certificates representing the number of shares
(rounded to the nearest full share) of such stock obtained by dividing the
amount of the payment by the average of the daily closing sales prices for
such stock on the New York Stock Exchange for the last five trading days
immediately preceding the date of the Termination Notice and, as soon as
the balance of the purchase price, if any, has been determined, shall
deliver certificates representing the number of shares (rounded as
aforesaid) of such stock obtained by dividing the amount of such balance by
the average of said daily closing prices for the last five trading days
immediately preceding such date of delivery. Walnut agrees that any shares
of common stock of Eastern delivered to Walnut pursuant to
29
<PAGE>
the foregoing will be acquired for its own account and for investment and
not with a view to or in connection with any distribution thereof. Walnut
agrees to confirm this understanding upon each delivery of such shares and
to acknowledge that such shares will not be registered under the Securities
Act of 1933 based upon such representation. Walnut shall also agree that
such shares shall not be sold or transferred unless either (i) such shares
shall first have been registered under said Act or (ii) Eastern first shall
have been furnished with an opinion of its legal counsel stating that such
sale or transfer is an exempted transaction under said Act. If the sale or
transfer is pursuant to the foregoing clause (ii), Eastern shall also be
furnished with a written agreement by the transferee of such shares not to
sell or transfer such shares again without complying with the requirements
provided for in this Subsection 8.3(b); provided, however, that no such
agreement shall be required if the opinion referred to in clause (ii)
states that such shares may be transferred by the transferee immediately
after acquisition without registration under said Act. Until such shares
have been registered under said Act or until Eastern shall have received an
opinion of counsel pursuant to the next preceding sentence stating that
such shares may be transferred by the transferee thereof immediately after
the acquisition without registration
30
<PAGE>
of such shares under said Act, each certificate representing shares
delivered pursuant to this Subsection 8.3(b) shall bear the following
legend:
"The shares represented by this certificate are subject to certain
restrictions on sale or transfer as set forth in an agreement dated as
of ___________, 1983 between the issuer hereof and the initial holder
of the shares delivered pursuant to such agreement. The issuer hereof
will furnish a copy of such agreement to any registered holder hereof
upon written request and without charge."
8.4 Purchase by Remaining Partner. If the remaining Partner elects
-----------------------------
to purchase the interest in the Partnership of the Withdrawing Partner
pursuant to Subsection 8.2(c)(ii)(A) hereof or if Charles purchases the
interest in the Partnership of Walnut pursuant to Subsection 8.3 hereof,
the following provisions shall govern the purchase by the remaining Partner
or Charles (the "purchasing party") of the interest in the Partnership of
the Withdrawing Partner or Walnut (the "selling party"):
(a) The closing ("Closing") of any such purchase and sale shall be
held at the principal office of the Partnership, or another mutually
acceptable place.
31
<PAGE>
(b) At the Closing, the selling party shall execute and deliver to
the purchasing party all bills of sale and other instruments of transfer
and conveyance, in form and substance satisfactory to the purchasing party,
as may be necessary to convey, transfer, assign and deliver to the
purchasing party ownership of all of the selling party's interest in the
Partnership, free and clear of all liens and encumbrances. The selling
party agrees, from time to time at the request of the purchasing party, at
or after the date of Closing to execute and deliver such instruments of
conveyance, assignment, transfer and consent as may be required or
advisable for the effective conveyance and transfer of the business,
properties, assets, name, goodwill and rights included in the selling
party's interest in the Partnership or otherwise to vest ownership of all
of the assets of the Partnership in the purchasing party.
(c) At the Closing, the purchasing party shall pay to the selling
party the purchase price determined as of the date of the Closing pursuant
to Subsection 8.2(c)(ii)(A) or Subsection 8.3(a), as the case may be, which
purchase price shall be adjusted downward by the amount of any contribution
to the capital of the Partnership which both the purchasing party and the
selling party agreed to make prior to the Closing if the purchasing party
made such contribution but the selling party did not make such contribution
prior to the
32
<PAGE>
Closing. Subject to the provisions of Subsection 8.3(b), said purchase
price shall be paid by a cashier's or certified check from a bank
acceptable to the selling party.
(d) At the Closing, the purchasing party shall by a legally
enforceable agreement, effective upon the effectiveness of the sale of the
selling party's interest in the Partnership:
(i) assume and become obligated to pay, or discharge any
indebtedness, lien, mortgage or encumbrance on the assets of the
Partnership incurred in accordance with this Agreement to the extent
that the selling party has personal liability with respect thereto;
(ii) assume and become obligated to pay, or perform or
discharge the obligations and liabilities that the selling party may
have incurred in accordance with this Agreement to third parties as a
Partner in the Partnership (other than liabilities for which the
purchasing party may have a claim against the selling party due to the
selling party's breach of, or default under, the terms of this
Agreement);
(iii) assume and become obligated to pay, or perform or
discharge the obligations and liabilities that any Affiliate of the
selling party may have incurred to third parties as a guarantor
33
<PAGE>
of obligations of the Partnership or to support financing arrangements
of the Partnership in some other manner such as an agreement to
maintain the working capital of the Partnership;
(iv) release and discharge the selling party of all obligations
and liabilities (except those on account of or arising out of any
breach of or default under the terms of this Agreement) to the
purchasing party or the Partnership incurred hereunder or otherwise in
connection with the operation of the business of the Partnership in
accordance with this Agreement; and
(v) save, defend and indemnify the selling party and its
Affiliates against and hold them harmless from any and all liabilities
specified in clauses (i) through (iv) of this Subsection 8.4(d).
8.5 Continuing Conduct of the Partnership. During the pendency of
-------------------------------------
any claim against a Partner for a breach of or for default under the terms of
this Agreement or during pendency of the procedures provided for in
Subsections 8.2, 8.3 and 8.4 hereof, the business and affairs of the
Partnership shall be conducted so as to maintain and preserve the value of
the Partnership as a going concern. During any period of winding up, the
business and affairs of the Partnership shall be conducted so as to maintain
and preserve the assets of the Partnership in a manner consistent with the
34
<PAGE>
winding-up of the affairs thereof. Each Partner will indemnify the
Partnership and the other Partner against any claim, loss or damage to the
Partnership or such other Partner which may result from the Partner's breach
of this Subsection 8.5.
8.6 Liquidation and Distribution Procedure. In the event of any
--------------------------------------
liquidation and distribution as a result of the termination of the
Partnership, the assets of the Partnership after payment of or provision for
all just debts of the Partnership shall be distributed in accordance with the
provisions of the West Virginia Uniform Partnership Act except as otherwise
provided herein.
SECTION 9. ARBITRATION
Either Partner may cause to be submitted to arbitration all disputes,
controversies or questions of interpretation arising out of this Agreement or
any breach or default hereunder by giving to the other Partner notice to that
effect. The arbitration shall be held in Charleston, West Virginia and shall
be conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association as in effect at the time of such arbitration
except as follows. The Partner desiring arbitration shall include in its
notice to the other Partner the name of the arbitrator chosen by it. Within
twenty days after receipt of such notice, the Partner receiving notice shall,
by written notice to the
35
<PAGE>
Partner desiring arbitration, name the arbitrator chosen by it and within
twenty days after the appointment of the second arbitrator an additional
arbitrator shall be selected by the two arbitrators theretofore appointed;
provided, however, if one of the Partners shall have failed to appoint an
arbitrator as hereinabove provided, the sole arbitrator appointed by the
other Partner shall arbitrate the matter alone. If the two arbitrators shall
have failed to select an additional arbitrator within the above-stated time,
the additional arbitrator shall be appointed by the Chief Judge of the United
States Court of Appeals for the Fourth Circuit, acting in his individual
capacity, or in the event of his failure to appoint the additional
arbitrator, by the Regional Director of the American Arbitration Association
for Charleston, West Virginia. No arbitrator shall be an employee or former
employee of the Partnership, either Partner, or an Affiliate of either
Partner. After their selection, the arbitrators (or sole arbitrator as the
case may be) shall proceed promptly with the arbitration proceedings and
shall come to a decision and shall deliver a written report thereof to both
Partners no later than ninety days after the selection of the last of their
number (or in the case of a sole arbitrator, 110 days after his selection).
Each Partner shall pay the costs and expenses of the arbitrator appointed by
it and shall share equally the other costs and expenses of the
36
<PAGE>
arbitration, including the costs and expenses of the additional arbitrator.
The right of either Partner to seek or obtain any remedy pursuant to this
Section 9 shall be in addition to the remedies provided for in Section 8
hereof and shall survive the dissolution of the Partnership or the sale and
purchase of a Partner's interest in the Partnership pursuant to Subsections
8.2 and 8.3 hereof.
SECTION 10. FORCE MAJEURE
If either Partner fails to perform or commits a breach of any
provision or covenant of this Agreement, other than the obligation to make
contributions as provided herein, and the cause of such breach or failure is
Force Mature, it shall be excused to the extent and for the period required
------------
by such cause. Force Majeure shall mean a strike, flood, fire, or other
-------------
casualty, act of God, act of government or other occurrence or circumstance
not due to the defaulting Partner's fault or negligence and not within such
Partner's reasonable control.
SECTION 11. GENERAL
11.1 Notices. All notices, demands or requests required or permitted
-------
to be given pursuant to this Agreement shall be in writing and shall be
deemed to have been given when delivered personally or when deposited in the
United States mail, postage prepaid, by registered or
37
<PAGE>
certified mail, with return receipt requested, addressed as follows:
(a) If to Walnut to:
Walnut Coal Corporation
c/o Bluestone Coal Corporation
P. O. Box 1085
Beckley, West Virginia 25801
Attention: James C. Justice
or at such other address as Walnut may have furnished Charles by notice.
(b) If to Charles to:
Charles Coal Company
c/o Eastern Associated Coal Corp.
Koppers Building
Pittsburgh, Pennsylvania 15219
Attention: President
with a copy to:
Eastern Gas and Fuel Associates
One Beacon Street
Boston, Massachusetts 02108
Attention: Robert H. Freeman
or at such other address as Charles may have furnished Walnut by notice.
11.2 Amendment. This Agreement may not be amended except by a
---------
written instrument executed by both Partners.
11.3 Applicable Law. This Agreement and the performance of the
--------------
Partners hereunder shall be interpreted, construed and enforced in accordance
with the laws of the State of West Virginia and no presumption shall be
deemed to exist in favor of or against either Partner as a result of the
preparation or negotiation of the same.
38
<PAGE>
11.4 Entire Agreement. This Agreement constitutes the entire
-----------------
agreement between the parties hereto relative to the organization and
operation of the Partnership for the purposes herein contemplated and there
are no other expressed or implied understandings, representations or
warranties, oral or written, relating to the Colony Bay Reserve or the
subject matter of this Agreement, which shall be deemed to exist or to bind
any of the Parties hereto, their respective successors or assigns except as
referred to herein.
11.5 Further Assurances. Each of the Parties hereto shall from time
------------------
to time and at all times do all such other further acts as may reasonably be
necessary in order fully to perform and carry out the terms and intent
hereof.
11.6 Admission of Additional Partners. Except as provided in
--------------------------------
Section 7 hereof, no additional Partners may be admitted to the Partnership
except upon the unanimous consent of the Partners and upon such terms and
conditions as they may agree upon.
11.7 Severability. If any provisions of this Agreement or the
------------
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of the Agreement and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
law.
39
<PAGE>
11.8 Binding Agreement. Subject to the restrictions on transfers
-----------------
and other dispositions set forth herein, this Agreement shall inure to the
benefit of and be binding upon the undersigned Partners and their respective
successors and assigns.
11.9 Headings. The headings of sections in this Agreement are for
--------
convenience only and are not a part of this Agreement.
40
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement by their duly authorized officers as of the day and year first
above written.
WALNUT COAL CORPORATION
By: [Executed]
-------------------------------
CHARLES COAL COMPANY
By: [Executed]
-------------------------------
41
<PAGE>
APPENDIX A
Procedures for Conduct of Management of
---------------------------------------
Colony Bay Reserve by Managing General Partner
----------------------------------------------
Terms used herein and not otherwise defined herein are used herein as
defined in the Amended and Restated Venture Agreement of Colony Bay Coal
Company (the "Agreement").
1. Services Included. Walnut shall at its expense provide or
-----------------
make provision for all of the managerial, administrative and technical
services reasonably required to enable the Partnership to conduct its
operations in a proper and businesslike manner. The services of Walnut
hereunder shall include, without implied limitation, (i) all upper management
services in connection with operations, purchasing, labor relations,
insurance, supervisory engineering, and, to the extent set out in Section 2
of these Procedures, accounting; (ii) all negotiations with and proceedings
before federal and state agencies having jurisdiction over the Partnership's
operations; (iii) the supervision of~the preparation of all mine permit
applications, reclamation plans, and mining plans and projections; and (iv)
the approval of and preparation of contracts with all miners and truckers
engaged by contract.
2. Accounting.
----------
(a) Walnut shall (i) keep and maintain complete books and
records, on the accrual basis of
42
<PAGE>
accounting and in accordance with generally accepted accounting principles,
with respect to all phases of the business of the Partnership; (ii) maintain
all other records necessary or appropriate to recording and managing the
business and tax affairs of the Partnership, including the preparation and
filing of all federal, state and local tax returns, and including all books
and records provided for in (S) 5.2 of the Agreement; (iii) provide the
Partnership with appropriate financial statements on a monthly basis and at
such other times and for such other periods as may be reasonably required by
the Partnership.
(b) All books and records maintained for the Partnership by Walnut
hereunder shall be open to inspection by the Partnership or any of the
Partners at all reasonable times, and shall be the property of the
Partnership.
3. Bank Accounts. All receipts and income of the Partnership shall
-------------
be deposited in accounts in such bank or banks as may from time to time be
designated by the Partnership. Withdrawals from such accounts shall be made
upon the signature or signatures of such person or persons as may be
authorized by the Partnership from time to time.
4. Fund Deposits and Reports. Walnut shall be responsible for
-------------------------
maintaining all records, and for making all deposits and paying all premiums
(with funds of the
43
<PAGE>
Partnership), on behalf of the Partnership and its employees, with respect to
the West Virginia Workmen's Compensation Fund, The West Virginia Coal Workers
Pneumoconiosis Fund, The West Virginia Unemployment Compensation Fund, and
any other such funds, as may be required by law, regulation or labor
contract, and for processing all claims by employees of the Partnership. All
legal expenses with respect to the processing or contest of such claims shall
be borne by the Partnership.
5. Materials and Supplies. Walnut shall oversee the ordering, for
----------------------
the Partnership's account, of all materials and supplies necessary for the
operation of the mines and mining activities of the Partnership, subject to
consultation between the Partners from time to time with respect to
suppliers, prices, etc.
6. Purchases, Leases and Equipment. Walnut shall be responsible for
-------------------------------
making recommendations to the Partnership with respect to the leasing or
purchase of equipment, coal deposits and surface lands. No equipment, coal
lands, or other property shall be leased or purchased by Walnut for the
Partnership's account without the express consent or approval of the
Partnership.
7. Relationship to the Agreement. In the event of any conflict or
-----------------------------
inconsistency between the Agreement and these Procedures, the terms of the
Agreement shall prevail and control.
44
<PAGE>
THIS AGREEMENT, made as of the 11th day of August, 1987, by and
between CHARLES COAL COMPANY, a Delaware corporation ("Charles"), and EASTERN
ASSOCIATED COAL CORP., a West Virginia corporation ("EACC");
WHEREAS, the parties hereto are the owners of all interests in Colony
Bay Coal Company, a general partnership formed under the Uniform Partnership
Act as adopted in West Virginia; and
WHEREAS, said partnership was continued and restated in an Amended and
Restated Venture Agreement of Colony Bay Coal Company dated January 1, 1983;
and
WHEREAS, the partnership was originally formed between Walnut Coal
Corporation and Charles Coal Company; however, by Venture Interest Purchase
Agreement dated August 11, 1987, EACC purchased all of the partnership
interest of Walnut Coal Corporation;
NOW, THEREFORE, for valuable consideration Charles does hereby agree
that EACC shall be admitted as a partner to the general partnership and that
EACC shall have all of the rights and interests in said partnership as were
previously held and owned by Walnut Coal Corporation. EACC does hereby agree
to perform all of the covenants and obligations of Walnut as set forth in
said Amended and Restated Venture Agreement. In all other respects the
parties do hereby ratify and affirm the said Amended and Restated Venture
Agreement.
45
<PAGE>
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed by officers thereunto duly authorized.
CHARLES COAL COMPANY
By [Executed]
---------------------------
Its ________________________
EASTERN ASSOCIATED COAL CORP.
By [Executed]
---------------------------
Its ________________________
46
<PAGE>
EXHIBIT 3.21
CERTIFICATE OF INCORPORATION
OF
COOK MOUNTAIN COAL COMPANY
* * * * *
1. The name of the corporation is
COOK MOUNTAIN COAL COMPANY
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
5A. The name and mailing address of each incorporator is as follows:
<PAGE>
NAME MAILING ADDRESS
---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19810
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19810
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19810
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
P. B. Lilly 800 Laidley Tower
Charleston, WV 25301
D. B. Scherder 800 Laidley Tower
Charleston, WV 25301
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
2
<PAGE>
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware,
3
<PAGE>
do make this certificate, hereby declaring and certifying that this is our act
and deed and the facts herein stated are true, and accordingly have hereunto set
our hands this 3rd day of March, 1994.
/s/ M. A. Brzoska
-------------------------
M. A. Brzoska
Incorporator
/s/ K. A. Widdoes
-------------------------
K. A. Widdoes
Incorporator
/s/ K. A. Widdoes
-------------------------
K. A. Widdoes
Incorporator
4
<PAGE>
EXHIBIT 3.22
COOK MOUNTAIN COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Charleston, State of West Virginia, at
such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1995, shall be held on the first day of April if
<PAGE>
not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10 A.M., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting, at which they shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
2
<PAGE>
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a
3
<PAGE>
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting
4
<PAGE>
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than three. The first board shall
consist of two directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual
5
<PAGE>
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly
6
<PAGE>
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of
7
<PAGE>
directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace
8
<PAGE>
any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the
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stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the by-laws of the corporation; and, unless the resolution or the
certificate of incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock or to adopt a certificate of ownership and merger. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
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THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
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THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such
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determination, then in the order of their election) shall, in the absence of the
treasurer or in the event of his inability or refusal to act, perform the duties
and exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been
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placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession,
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assignation or authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. Upon receipt of proper
transfer instructions from the registered owner of uncertificated shares such
uncertificated shares shall be cancelled and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
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REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the
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interest of the corporation, and the directors may modify or abolish any such
reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
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INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
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EXHIBIT 3.23
CERTIFICATE OF INCORPORATION
OF
COTTONWOOD LAND COMPANY
* * * * *
1. The name of the corporation is Cottonwood Land Company
2. The address of its registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is Ten (10) and the par value of each of such shares is One
Hundred Dollars and No Cents ($100.00) amounting in the aggregate to One
Thousand Dollars and No Cents ($1,000.00).
5. The board of directors is authorized to make, alter or repeal the by-laws of
the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the sole incorporator is:
M. A. Brzoska
Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
8. The corporation shall indemnify its officers, directors, employees and agents
to the extent permitted by the General Corporation Law of Delaware.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act
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2
and deed and the facts herein stated are true, and accordingly have hereunto set
my hand this 17th day of August, 1995.
/s/ M. A. Brzoska
-----------------------------
M. A. Brzoska
Sole Incorporator
<PAGE>
EXHIBIT 3.24
COTTONWOOD LAND COMPANY
* * * * *
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the
year 1996, shall be held on the of May if
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2
not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 A.M., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting, at which they shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
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3
Section 5. Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a
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4
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
At all elections of directors of the corporation each stockholder
having voting power shall be entitled to exercise the right of cumulative voting
as provided in the certificate of incorporation.
<PAGE>
5
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole board shall be not less than one (1) nor more than three (3). The first
board shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized
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6
number of directors may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of
directors shall be held at such time and place as shall
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7
be fixed by the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in order legally
to constitute the meeting, provided a quorum shall be present. In the event of
the failure of the stockholders to fix the time or place of such first meeting
of the newly elected board of directors, or in the event such meeting is not
held at the time and place so fixed by the stockholders, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on zero (0) days' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board two directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically
<PAGE>
8
provided by statute or by the certificate of incorporation. If a quorum shall
not be present at any meeting of the board of directors the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
<PAGE>
9
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of
<PAGE>
10
a dissolution, or amending the by-laws of the corporation; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or bylaw, any director or the entire board of directors may be
removed, with or without cause, by the
<PAGE>
11
holders of a majority of shares entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of
the certificate of incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number
<PAGE>
12
of offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of
the corporation, shall preside at all meetings of the stockholders and the board
of directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the
<PAGE>
13
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it
<PAGE>
14
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may
be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
<PAGE>
15
Section 13. If required by the board of directors, he shall give
the corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of his office and for the restoration
to the corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Upon the face or back of each stock certificate issued to represent
any partly paid shares, or upon the books and
<PAGE>
16
records of the corporation in the case of uncertificated partly paid shares,
shall be set forth the total amount of the consideration to be paid therefor and
the amount paid thereon shall be stated.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each
<PAGE>
17
stockholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made
<PAGE>
18
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or
<PAGE>
19
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting: provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, thinly proper as
a reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or
<PAGE>
20
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers,
directors, employees and agents to the extent permitted by the General
Corporation Law of Delaware.
<PAGE>
21
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or
new by-laws may be adopted by the stockholders or by the board of directors,
when such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.25
CERTIFICATE OF INCORPORATION
OF
ORION MINES, INC.
* * * * *
1. The name of the corporation is
ORION MINES, INC.
2. The address of the registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, county of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000); and the par value of each of
such shares is One Dollar ($1.00), amounting in the aggregate to One Thousand
Dollars ($1,000.00).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
- ---- ---------------
S. S. Simpson 100 West Tenth Street
Wilmington, Delaware 19801
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19801
C. J. Coyle 100 West Tenth Street
Wilmington, Delaware 19801
<PAGE>
2
A. The corporation is to have perpetual existence.
1. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The by-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the
<PAGE>
3
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an Agreement of Merger or Consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the by-laws of the corporation; and, unless the resolution or by-
laws, expressly so provide, no such committee shall have the power or authority
to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in whole
or in part of money or property, including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
2. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
<PAGE>
4
board of directors or in the by-laws of the corporation. Elections of directors
need not be by written ballot unless the by-laws of the corporation shall so
provide.
3. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 11th day of
April, 1977.
/s/ S. S. Simpson
-------------------------
S. S. Simpson
/s/ K. L. Husfelt
-------------------------
K. L. Husfelt
/s/ G. J. Coyle
-------------------------
G. J. Coyle
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
ORION MINES, INC.
* * * * *
ORION MINES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That Articles "1. and 4." the Certificate of Incorporation be
and they hereby are amended to read as follows:
"1. The name of the corporation is
DARIUS GOLD MINE INC."
4. The total number of shares of stock which the corporation shall
have authority to issue is fifty thousand (50,000) and the par value of each of
such shares is Ten Cents ($.10) amounting in the aggregate to Five Thousand
Dollars ($5,000.00).
SECOND: That the corporation has not received any payment for any of
its stock.
THIRD: That the amendment was duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
<PAGE>
2
IN WITNESS WHEREOF, said ORION MINES, INC. has caused this Certificate
to be signed by RUSSELL L. WOOD, its President and attested by V.A. FILIPPONE,
its Secretary, this 13th day of May, 1977.
ORION MINES, INC.
by /s/ Russell L. Wood
--------------------------------
Russell L. Wood, President
ATTEST:
by /s/ V.A. Filippone
----------------------------
V.A. Filippone, Secretary
<PAGE>
EXHIBIT 3.26
BY-LAWS
OF
DARIUS GOLD MINE INC.
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as
amended from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means Darius Gold Mine Inc.
1.7 "Directors" means directors of the Corporation.
<PAGE>
2
1.8 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 2 of Article 3 of the Bylaws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice-President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the
Corporation.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of
--------------
DARIUS GOLD MINE INC. (hereinafter to be called the "Corporation") shall be held
at 11:00 a.m. on the first Tuesday in October. At the annual meeting, the
stockholders shall elect by a plurality vote a board of directors (hereinafter
<PAGE>
3
referred to as the "Board"), and transact such other business as may properly be
brought before the meeting. If the annual meeting shall not be held on the day
hereinabove provided for, the Board shall cause the meeting to be held as soon
thereafter as convenient.
Section 2. Special Meetings. Special meetings of the stockholders
----------------
(other than a special meeting for the election of directors), unless otherwise
prescribed by statute, may be called for any purpose or purposes at any time by
the Board or by the President, or by the Secretary. At any special meeting of
stockholders only such business may be transacted as is related to the purpose
or purposes of such meeting set forth in the notice thereof given pursuant to
Section 4 of this Article or in any waiver of notice thereof given pursuant to
Section 4 of this Article.
Section 3. Fixing Record Date. For the purpose of determining the
------------------
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action, the Board
may fix, in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any action.
If no such record date is fixed:
<PAGE>
4
3.1 The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held;
3.2 The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting shall be the day on
which the first written consent is expressed;
3.3 The record date for determining stockholders for any purpose
other than those specified in Sections 3.1 and 3.2 shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
When a determination of stockholders entitled to notice of or to vote
at any meeting of stockholders has been made as provided in this Section 3 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
Section 4. Notice of Meetings. Written notice of the place, date and
------------------
time of the holding of each annual and special meeting of the stockholders and,
in the case of a special meeting, the purpose or purposes thereof, shall be
given personally or by mail in a postage pre-paid envelope to each stockholder
entitled to vote at such meeting, not less than ten nor more than sixty days
before the date of such meeting, and, if mailed, it shall be directed to such
stockholder at his address as it appears on the records of the Corporation,
unless he shall
<PAGE>
5
have filed with the Secretary of the Corporation a written request that notices
to him be mailed to some other address, in which case it shall be directed to
him at such other address. If mailed, such notice shall be deemed to be given
when deposited in the United States mail. An affidavit of the Secretary or an
Assistant Secretary or of the transfer agent of the Corporation that the notice
required by this Section has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of notice. Unless
the Board shall fix after the adjournment a new record date for an adjourned
meeting, notice of such adjourned meeting need not be given if the time and
place to which the meeting shall be adjourned were announced at the meeting at
which the adjournment is taken. At the adjourned meeting the Corporation may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
<PAGE>
6
Section 5. Place of Meetings. Every meeting of the stockholders
-----------------
shall be held at the office of the Corporation or at such other place, within or
without the State of Delaware, as the Board or the officer calling the same
shall specify in the notice of such meeting, or in a duly executed waiver of
notice thereof.
Section 6. Quorum. At all meetings of the stockholders the holders
------
of one third of the shares of stock of the Corporation issued and outstanding
and entitled to vote shall be present in person or by proxy to constitute a
quorum for the transaction of any business. When a quorum is once present to
organize a meeting of stockholders, it is not broken by the subsequent
withdrawal of any stockholders. In the absence of a quorum, the holders of a
majority of the shares of stock present in person or by proxy and entitled to
vote, or if no stockholder entitled to vote is present, then any officer of the
Corporation may adjourn the meeting from time to time. At any such adjourned
meeting at which a quorum may be present any business may be transacted which
might have been transacted at the meeting as originally called.
Section 7. Organization. At each meeting of the stockholders, the
------------
Chairman of the Board, or in his absence or inability to act, the President, or
in the absence or inability to act of the Chairman of the Board and the
President, a Vice-President, and in case more than one Vice-President shall be
present, that Vice-President designated by the Board (or in the absence of any
such designation, the most senior Vice-President, based on age, present), or in
the absence of all of the foregoing, any person chosen by a majority of those
stockholders
<PAGE>
7
present, shall act as chairman of the meeting. The Secretary, or, in his absence
or inability to act, the Assistant Secretary or any person appointed by the
chairman of the meeting, shall act as secretary of the meeting and keep the
minutes thereof.
Section 8. Order of Business. The order of business at all meetings
-----------------
of the stockholders shall be as determined by the chairman of the meeting, but
the order of business to be followed at any meeting at which a quorum is present
may be changed by a majority of votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
Section 9. Voting. Except as otherwise provided by statute or by the
------
Certificate of Incorporation, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation determined in accordance with
Section 3 of this Article. If the Certificate of Incorporation provides for more
or less than one vote for any share, on any matter, every reference in the By-
laws or the General Corporation Law to a majority or other proportion of stock
shall refer to such majority or other proportion of the votes of such stock. The
provisions of Sections 212 and 217 of the General Corporation Law shall apply in
determining whether any shares of capital stock may be voted, and the persons,
if any, entitled to vote such shares; but the Corporation shall be protected in
treating the persons in whose names shares of capital stock stand on the
<PAGE>
8
record of stockholders as owners thereof for all purposes. Each stockholder
entitled to vote at any meeting of stockholders may authorize another person or
persons to act for him by a proxy signed by such stockholder or his attorney-in-
fact. Any such proxy shall be delivered to the secretary of such meeting at or
prior to the time designated in the order of business for so delivering such
proxies. No proxy shall be valid after the expiration of three years from the
date thereof, unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the stockholder executing it, except in those cases
where an irrevocable proxy is permitted by law. Except as otherwise provided by
statute, these By-laws, or the Certificate of Incorporation, any corporate
action to be taken by vote of the stockholders shall be authorized by a majority
of the total votes, cast at a meeting of stockholders by the holders of shares
present in person or represented by proxy and entitled to vote on such action.
All elections of directors shall be by written ballot unless otherwise provided
in the Certificate of Incorporation. In voting on any other question on which a
vote by ballot is required by law or is demanded by any stockholder entitled to
vote, the voting shall be by ballot. On a vote by written ballot, each ballot
shall be signed by the stockholder voting, or by his proxy, if there be such
proxy, and shall state the number of shares voted. On all other questions, the
voting may be viva voce. Every stockholder entitled to vote at a meeting of
---- ----
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy. The validity and
<PAGE>
9
enforceability of any proxy shall be determined in accordance with Section 212
of the General Corporation Law.
Section 10. List of Stockholders. The Secretary shall prepare and
--------------------
make, or cause to be prepared and made, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meetings, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 11. Inspectors. The Board may, in advance of any meeting of
----------
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed, the chairman
of the meeting may and on the request of any stockholder entitled to vote
thereat shall, appoint one or more inspectors. In case any person appointed
fails to appear or act, the vacancy may be filled by appointment made by the
Board in advance of the meeting or at the meeting by the chairman of the
meeting. Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath
<PAGE>
10
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct, the election or votes with
fairness to all stockholders. On request of the chairman of the meeting or any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. Any report or certificate made by the
inspector or inspectors shall be prima facie evidence of the facts stated and of
the vote as certified by him or them. No director or candidate for the office of
director shall act as inspector of an election of directors. Inspectors need not
be stockholders.
Section 12. Consent of Stockholders in Lieu of Meeting. Whenever the
------------------------------------------
vote of stockholders at a meeting thereof is required or permitted to be taken
for or in connection with any corporate action, the meeting and vote of
stockholders can be dispensed with without prior notice and without a vote (a)
if all of the stockholders who would have been entitled to vote upon the action
if such meeting were held shall consent in writing to such corporate action
being taken, setting forth the action so taken;
<PAGE>
11
or (b) unless the Certificate of Incorporation provides otherwise, with the
written consent of the holders of not less than the minimum percentage of the
total Vote required by statute for the proposed corporate action, and provided
that prompt notice must be given to all stockholders who have not so consented
in writing of the taking of such corporate action without a meeting and by less
than unanimous written consent of stockholders.
ARTICLE 3
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
--------------
Corporation shall be managed by or under the direction of the Board. The Board
may adopt such rules and regulations, not inconsistent with the Certificate of
Incorporation or the By-laws or applicable laws, as it may deem proper for the
conduct of its meetings and the management of the Corporation. The Board may
exercise all such authority and powers of the Corporation and do all such lawful
acts and things as are not by statute or the Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
Section 2. Number, Qualifications, Election and Term of Office. The
---------------------------------------------------
Board shall consist of three to fifteen members. The total number of directors
shall be fixed initially by the incorporator and may thereafter be changed from
time to time by action of the stockholders or by action of the Board. All the
directors shall be of full age. Directors need not be stockholders. Except as
otherwise provided by statute or the Certificate of Incorporation or these By-
laws, the directors
<PAGE>
12
shall be elected by plurality vote at the annual meeting of the stockholders.
Each director shall hold office until the next annual meeting of the
stockholders and until his successor shall have been duly elected and qualified,
or until his death, or until he shall have resigned, or have been removed, as
hereinafter provided in these By-laws, or as otherwise provided by statute or
the Certificate of Incorporation.
Section 3. Place of Meetings. Meetings of the Board, regular or
-----------------
special, may be held at such place and at such time, within or without the State
of Delaware, as the Board may from time to time determine or as shall be
specified in the notice or waiver of notice of such meeting.
Section 4. Annual Meeting. The Board shall meet for the purpose of
--------------
organization, the election of officers and the transaction of other business, as
soon as practicable after each annual meeting of the stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
Section 5. Regular Meetings. Regular meetings of the Board shall be
----------------
held at such time and place as the Board from time to time determines. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business
<PAGE>
13
day. Notice of regular meetings of the Board need not be given except as
otherwise required by statute or these By-laws.
Section 6. Special Meetings. Special meetings of the Board shall be
----------------
held whenever called by two or more directors of the Corporation or by the
Chairman of the Board or the President or the Secretary.
Section 7. Notice of Meetings. Notice of each special meeting of the
------------------
Board (and of each regular meeting for which notice shall be required) shall be
given by the Secretary as hereinafter provided in this Section 7, in which
notice shall be stated the time and place (within or without the State of
Delaware) of the meeting. Notice of each such meeting shall be delivered to each
director, either personally or by telephone, telegraph, cable or wireless, at
least twenty-four hours before the time at which such meeting is to be held or
by first-class mail, postage prepaid, addressed to him at his residence, or
usual place of business, at least two days before the day on which such meeting
is to be held. If mailed, each notice shall be deemed given when deposited, with
postage thereon prepaid, in a post office or official depository under the
exclusive care and custody of the United States post office department. Notice
of any such meeting need not be given to any director who shall, either before
or after the meeting, submit a signed waiver of notice or who shall attend such
meeting without protesting, prior to or at its commencement, the lack of notice
to him. Except as otherwise specifically required by these By-laws, a notice or
waiver of notice of any regular or special meeting need not state the purposes
of such meeting.
<PAGE>
14
Section 8. Quorum and Manner of Acting. One-third of the directors
---------------------------
shall be present in person or by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, at any meeting of the Board in order to constitute
a quorum for the transaction of business at such meeting, and, except as
otherwise expressly required by statute or the Certificate of Incorporation, the
act of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board. In the absence of a quorum at any meeting
of the Board, a majority of the directors present thereat, or if no director be
present, the Secretary, may adjourn such meeting to another time and place. At
any adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called.
Except as provided in Article 3 of these By-laws, the directors shall act only
as a Board and the individual directors shall have no power as such.
Section 9. Organization. At each meeting of the Board, the Chairman
------------
of the Board (or, in his absence or inability to act, the President, or, in his
absence or inability to act another director chosen by a majority of the
directors present) shall act as Chairman of the meeting and preside thereat. The
Secretary (or, in his absence or inability to act, the Assistant Secretary, or
in his absence or inability to act any person appointed by the Chairman) shall
act as secretary of the meeting and keep the minutes thereof.
<PAGE>
15
Section 10. Resignations. Any director of the Corporation may resign
------------
at any time by giving written notice of his resignation to the Corporation. Any
such resignation shall take effect at the time specified therein, or, if the
time when it shall become effective shall not be specified therein, immediately
upon its receipt; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 11. Vacancies. Vacancies and newly created directorships
---------
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, or may be elected by a plurality of the votes cast by
the holders of shares of capital stock entitled to vote in the election at a
special meeting of stockholders called for that purpose and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace
<PAGE>
16
the directors chosen by the directors then in office. When one or more directors
shall resign from the Board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in this Section in the filling of other vacancies.
Section 12. Removal of Directors. Except as otherwise provided in
--------------------
the Certificate of Incorporation or in these By-laws, any director may be
removed, either with or without cause, at any time, by the affirmative vote of
the holders of record of a majority of the issued and outstanding stock entitled
to vote for the election of directors of the Corporation given at a special
meeting of the stockholders called and held for that purpose; and the vacancy in
the board caused by such removal may be filled by such stockholders at such
meeting, or, if the stockholders shall fail to fill such vacancy, as in these
By-laws provided.
Section 13. Compensation. The Board shall have authority to fix the
------------
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity, provided, no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 14. Action Without Meeting. Any action required or permitted
----------------------
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all
<PAGE>
17
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
Section 15. Telephonic Participation. One or more members of the
------------------------
Board may participate in a meeting by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
ARTICLE 4
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and Other Committees. The Board may, by
------------------------------
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution, and except as otherwise provided by statute, shall have and may
exercise the powers of the Board in the management of the business and affairs
of the Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it; but no such committee shall have the power
or authority in reference to amending the Certificate of Incorporation, adopting
an agreement of merger or consolidation recommending to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of the
<PAGE>
18
Corporation or a revocation of a dissolution, or amending the By-laws of the
Corporation; and, unless the resolution designating it expressly so provides, no
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. In the absence or disqualification of any
member of such committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board to act
at the meeting in the place of any such absent or disqualified member. Each
committee shall keep written minutes of its proceedings and shall report such
minutes to the Board when required. All such proceedings shall be subject to
revision or alteration by the Board: provided, however, that third parties shall
not be prejudiced by such revision or alteration.
Section 2. General. A majority of any committee may determine its
-------
action and fix the time and place of its meeting, unless the Board shall
otherwise provide. Notice of such meetings shall be given to each member of the
committee in the manner provided for in Article 3, Section 7. The Board shall
have the power at any time to fill vacancies in, to change the membership of, or
to dissolve any such committee.
ARTICLE 5
OFFICERS
Section 1. Number and Qualifications. The officers of the
-------------------------
Corporation shall include a President, a Secretary, a Treasurer, and/or
Controller, and, if deemed necessary, expedient, or desirable by the Board of
Directors, a Chairman of
<PAGE>
19
the Board, a Vice-Chairman of the Board, one or more Vice-Presidents, one or
more Assistant Secretaries, one or more Assistant Treasurers, and such other
officers with such titles as the resolution of the Board of Directors choosing
them shall designate. Any two or more offices may be held by the same person.
Such officers shall be elected from time to time by the Board, each to hold
office until the meeting of the Board following the next annual meeting of the
stockholders, or until his successor shall have been duly elected and shall have
qualified, or until his death, or until he shall have resigned, or have been
removed, as hereinafter provided in these By-laws.
Section 2. Resignations. Any officer of the Corporation may resign
------------
at any time by giving written notice of his resignation to the Board, the
President or the Secretary. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt: and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. The resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any.
Section 3. Removal. Any officer of the Corporation may be removed,
-------
either with or without cause at any time, by the vote of the majority of the
entire Board at any meeting of the Board. Such removal shall be without
prejudice to the contractual rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office, whether arising from
---------
death, resignation, removal,
<PAGE>
20
disqualification or any other cause, shall be filled for the unexpired portion
of the term of the office which shall be vacant, in the manner prescribed in
these By-laws for the regular election or appointment to such office.
Section 5. The Chairman of the Board. The Chairman of the Board
-------------------------
shall, if present, preside at each meeting of the stockholders and of the Board.
He shall perform all duties incident to the office of the Chairman of the Board
and such other duties as may from time to time be assigned to him by the Board.
In the absence or in the case of the death or disability of the President, the
Chairman of the Board shall have and exercise all the powers of the President.
Section 6. The President. The President shall be the chief executive
-------------
officer of the Corporation and shall have general and active supervision and
direction over the business and affairs of the corporation and over its several
officers subject, however to the control of the Board and of any duly
authorized committee of directors. At the request of the Chairman of the Board,
or in the case of his absence or inability to act, the President shall perform
the duties of the Chairman of the Board and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the Chairman of the
Board. The President shall, if present, preside at all meetings of the
stockholders and at all meetings of the Board. He may, with the Secretary or the
Treasurer, sign certificates for shares of capital stock of the Corporation. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in case where the signing and execution
<PAGE>
21
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed. He shall perform all duties incident to the office of
President and such other duties as from time to time may be assigned to him by
the Board or these By-laws.
Section 7. Vice-Presidents. At the request of the President, or, in
---------------
his absence and in the absence of the Chairman of the Board, at the request of
the Board, the Vice-Presidents shall (in such order as may be designated by the
Board or, in the absence of any such designation, in order of seniority based on
age) perform all of the duties of the President and so acting shall have all the
powers of and be subject to all restrictions upon the President. Any Vice-
President may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board or by the By-laws to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or executed; and
shall perform such other duties as from time to time may be assigned to him by
the Board or by the President.
Section 8. The Treasurer. The Treasurer shall
-------------
(a) have charge and custody of, and be responsible for, all the
funds, securities, and notes of the Corporation;
<PAGE>
22
(b) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and have
control of all books of account of the Corporation;
(c) cause all moneys and other valuables to be deposited to the
credit of the Corporation in such depositaries as may be
designated by the Board;
(d) receive, and give receipts for, moneys due and payable to
the corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investment of its funds as ordered or authorized by the
Board, taking proper vouchers therefor;
(f) render to the President or the Board, whenever the President
or the Board may require, an account of the financial
condition of the Corporation and of all his transactions as
Treasurer:
(g) sign with the President or a Vice-President certificates for
shares of capital stock of the Corporation; and
(h) in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be
assigned to him by the Board, the Chairman of the Board, or
the President.
<PAGE>
23
A Controller and Assistant Controller may perform the function of
Treasurer and Assistant Treasurer.
Section 9. The Secretary. The Secretary shall
-------------
(a) act as Secretary of all meetings of the stockholders and of
the Board;
(b) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board, the
committees of the Board and the stockholders;
(c) see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law;
(d) with the President or a Vice President, sign certificates
for shares of capital stock of the Corporation;
(e) be custodian of the records and the seal of the Corporation
and affix and attest the seal to all stock certificates of
the Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided)
and affix and attest the seal to all other documents to be
executed on behalf of the Corporation under its seal:
(f) see that the books, reports, statements, certificates, stock
ledgers and other documents and records required by law to
be
<PAGE>
24
kept and filed are properly kept and filed; and
(g) in general, perform all the duties incident to the office of
Secretary and such duties as from time to time may be
assigned to him by the Board, the Chairman of the Board or
the President.
Section 10. Assistant Secretaries and Assistant Treasurers. Assistant
----------------------------------------------
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice-President, sign certificates for shares of capital
stock of the Corporation.
Section 11. Officers' Bonds or other Security. If required by the
---------------------------------
Board, any officer of the Corporation shall give a bond or other security for
the faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section 12. Compensation. The compensation of the officers of the
------------
Corporation for their services as such officers shall be fixed from time to time
by the Board. An officer of the Corporation shall not be prevented from
receiving compensation by reason of the fact that he is also a director of the
Corporation, but any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation paid to him.
<PAGE>
25
ARTICLE 6
INDEMNIFICATION
Section 1. Agreement to Indemnify. The Corporation shall indemnify
----------------------
any person (including his heirs, executors and administrators) who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
<PAGE>
26
Section 2. Agreement in Derivative Action. The Corporation shall
------------------------------
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 3. Successful Defense. To the extent that a director,
------------------
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article 6, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
<PAGE>
27
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Section 4. Determination. Any indemnification under Sections 1 and 2
-------------
of this Article 6 unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Sections 1 and 2 of this Article 6. Such determination shall be made (a) by the
Board by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable such a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
stockholders.
Section 5. Advances. Expenses incurred in defending a civil or
--------
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation.
Section 6. Non-Exclusivity. The indemnification provided by this
---------------
Article 6 shall not be deemed exclusive of any other rights to which those may
be entitled under any By-law, agreement, vote of stockholders or disinterested
directors or otherwise both as to action in his official capacity and as to
action in another capacity while holding such office and shall
<PAGE>
28
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Section 7. Insurance. The Corporation shall have the power to
---------
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article 6.
Section 8. Reference. For purposes of this Article 6 references to
---------
the "Corporation" include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving corporation so
that any person who is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article 6 with respect to the resulting or
surviving corporation as he would if he had served the resulting or surviving
corporation in the same capacity.
<PAGE>
29
ARTICLE 7
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. Execution of Contracts. Except as otherwise required by
----------------------
statute, the Certificate of Incorporation or these By-laws, any contracts or
other instrument may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these By-laws, an officer or
agent or employee shall not have any power or authority to bind the Corporation
by any contract or engagement or to pledge its credit or to render it
pecuniarily liable for any purpose or to any amount.
Section 2. Loans. The President or any other officer, employee or
-----
agent authorized by these By-laws or by the Board may effect loans and advances
at any time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
certificates or evidences of indebtedness of the Corporation, but no officer or
officers shall mortgage, pledge, hypothecate or transfer any securities or other
property of the Corporation, except when authorized by the Board. Such authority
conferred by the Board may be general or confined to specific instances or
otherwise limited.
<PAGE>
30
Section 3. Checks, Drafts, etc. All checks, drafts, bills of
-------------------
exchange or other orders for the payment of money out of the funds of the
Corporation, and all notes or other evidences of indebtedness of the
Corporation, shall be signed in the name and on behalf of the Corporation by
such persons and in such manner as shall from time to time be authorized by the
Board.
Section 4. Deposits. All funds of the Corporation not otherwise
--------
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may from time
to time designate or as may be designated by any officer or officers of the
Corporation to whom such power of designation may from time to time be delegated
by the Board. For the purpose of deposit and for the purpose of collection for
the account of the Corporation, checks, drafts and other orders for the payment
of money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation, or in such
other manner as the Board may determine by resolution.
Section 5. General and Special Bank Accounts. The Board may from
---------------------------------
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board may
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. The Board may make such special rules and
<PAGE>
31
regulations with respect to such bank accounts, not inconsistent with the
provisions of these By-laws, as it may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations.
------------------------------------------------------
Unless otherwise provided by resolution adopted by the Board of Directors, the
President or a Vice-President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation any of whose
stock or other securities may be held by the Corporation, at meetings of the
holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal, or otherwise, all such written proxies or other instruments
as he may deem necessary or proper in the premises.
ARTICLE 8
SHARES, ETC.
Section 1. Stock Certificates. Each holder of stock of the
------------------
Corporation shall be entitled to have a certificate, in such form as shall be
approved by the Board, certifying the number of shares of stock of the
Corporation owned by him. The certificates representing shares of stock shall be
signed in the name of the Corporation by the President or a Vice-President and
<PAGE>
32
by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer and sealed with the seal of the Corporation (which seal may be a
facsimile, engraved or printed); provided, however, that where any such
certificate is countersigned by a transfer agent other than the Corporation or
one of its employees, or is registered by a registrar other than the Corporation
or one of its employees, the signature of the officers of the Corporation upon
such certificates may be a facsimile, engraved or printed. In case any officer
who shall have signed or whose facsimile signature has been placed upon such
certificates shall have ceased to be such officer before such certificates shall
be issued, they may nevertheless be issued by the Corporation with the same
effect as if such officer were still in office at the date of their issue.
Section 2. Books of Account and Record of Stockholders. The books
-------------------------------------------
and records of the Corporation may be kept at such places within or without the
State of Delaware, as the Board of Directors may from time to time determine.
The stock record books and the blank stock certificate books shall be kept by
the Secretary or by any other officer or agent designated by the Board of
Directors.
Section 3. Transfer of Shares. Transfers of shares of stock of the
------------------
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or
<PAGE>
33
accompanied by a duly executed stock transfer power and the payment of all taxes
thereon. Every certificate exchanged, returned or surrendered to the Corporation
shall be marked "Cancelled," with the date of cancellation, by the Secretary or
an Assistant Secretary or the transfer agent of the Corporation. Except as
otherwise provided by law, the Corporation shall be entitled to recognize the
exclusive right of a person in whose name any share or shares stand on the
record of stockholders as the owner of such share or shares for all purposes,
including without limitation, the right to receive dividends or other
distributions and to vote as such owner, and the Corporation may hold any such
stockholder of record liable for calls and assessments and the Corporation shall
not be bound to recognize any equitable or legal claim to or interest in any
such share or shares on the part of any other person whether or not it shall
have express or other notice thereof. Whenever any transfers of shares shall be
made for collateral security and not absolutely, and both the transferor and
transferee request the Corporation to do so, such fact shall be stated in the
entry of the transfer.
Section 4. Regulations. The Board may make such additional rules and
-----------
regulations, not inconsistent with these By-laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
<PAGE>
34
Section 5. Lost, Destroyed, Stolen or Mutilated Certificates. The
-------------------------------------------------
holder of any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of any loss, destruction, theft or mutilation
of such certificate, and the Corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it which the owner thereof
shall allege to have been lost, stolen, or destroyed or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his legal
representative to make proof satisfactory to the Board of such loss,
destruction, theft or mutilation and to advertise such fact in such manner as
the Board may require, and to give to the Corporation a bond in such sum,
limited or unlimited, and in such form and with such surety or sureties as the
Board in its absolute discretion shall determine, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft, or destruction of any such certificate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board, in its
absolute discretion, may refuse to issue any such new certificate, except
pursuant to legal proceedings under the laws of the State of Delaware.
Section 6. Restriction on Transfer of Stock. A written restriction
--------------------------------
on the transfer or registration of transfer of capital stock of the Corporation,
if permitted by Section 202 of the General Corporation Law and noted
conspicuously on the certificate representing such capital stock, may be
enforced against the holder of the restricted capital stock or any successor or
transferee of the holder including an executor,
<PAGE>
35
administrator, trustee, guardian or other fiduciary entrusted with like
responsibility for the person or estate of the holder. Unless noted
conspicuously on the certificate representing such capital stock, a restriction,
even though permitted by Section 202 of the General Corporation Law, shall be
ineffective except against a person with actual knowledge of the restriction. A
restriction on the transfer or registration or transfer of capital stock of the
Corporation may be imposed either by the Certificate of Incorporation or by an
agreement among any number of stockholders or among such stockholders and the
Corporation. No restriction so imposed shall be binding with respect to capital
stock issued prior to the adoption of the restriction unless the holders of such
capital stock are parties to an agreement or voted in favor of the restriction.
Section 7. Dividends, Surplus, Etc. Subject to the provisions of the
-----------------------
Certificate of Incorporation and of law, the Board:
7.1 May declare and pay dividends or make other distributions on the
outstanding shares of capital stock in such amounts and at such time or
times as, in its discretion, the condition of the affairs of the
Corporation shall render advisable.
7.2 May use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of capital stock of the
Corporation, or purchase warrants thereof, in accordance with law, or any
of its bonds, debentures, notes, scrip or other securities or evidences of
indebtedness;
<PAGE>
36
7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper, as a
reserve fund to meet contingencies, or for equalizing dividends or for the
purpose of maintaining or increasing the property or business of the
Corporation, or for any purpose it may think conducive to the best
interests of the Corporation.
ARTICLE 9
BOOKS AND RECORDS
Section 1. Books and Records. The Corporation shall keep correct and
-----------------
complete books and records of account and shall keep minutes of the proceedings
of the stockholders, the Board and any committee of the Board. The Corporation
shall keep at the office designated in the Certificate or Incorporation or at
the office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
Section 2. Form of Records. Any records maintained by the
---------------
Corporation in the regular course of its business, including its stock ledger,
books of accounts, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible written form within a reasonable time. The Corporation shall so convert
any records so kept upon the request of any person entitled to inspect the same.
<PAGE>
37
Section 3. Inspection of Books and Records. Except as otherwise
-------------------------------
provided by law, the Board shall determine from time to time whether, and, if
allowed, when and under what conditions and regulations, the accounts, books,
minutes and other records of the Corporation, or any of them, shall be open to
the inspection of the stockholders.
ARTICLE 10
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors.
ARTICLE 11
FISCAL YEAR
The Board shall provide a corporate seal of which shall be in the form
of a circle and bear the name of the Corporation and the words and figures
"Corporate Seal-Delaware" and the year of incorporation.
ARTICLE 12
AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may
be adopted by the stockholders or by the Board of Directors, when such power is
conferred upon the Board of Directors by the Certificate of Incorporation at any
regular meeting of the stockholders or of the Board of Directors or any special
meeting of the stockholders or of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new By-laws be contained on the
notice of such special meeting.
<PAGE>
EXHIBIT 3.27
STATE OF WEST VIRGINIA
CERTIFICATE OF INCORPORATION
I, Wm. S. O'Brien, Secretary of State of the State of West Virginia,
hereby certify that an Agreement, duly acknowledged, has been this day filed in
my office, which agreement is in words and figures following:
I. The undersigned agree to become a corporation by the name of
KOPPERS RECREATION CAMPS, INC.
II. The principal office or place of business of said Corporation
will be located at No. 1050 Koppers Building, in the city of Pittsburgh, in
county of Allegheny and State of Pennsylvania. Its chief works will be located
in Summers County, West Virginia.
III. The objects for which this Corporation is formed are as follows:
To build, conduct and maintain camps, playgrounds, swimming pools,
schools and places of amusement to be used for the promotion of the education,
health, recreation and general welfare of the employees of The Koppers Coal
Company and their families and for the purpose of training the children of said
employees to the end that they may become more useful citizens; to buy, sell and
exchange real estate necessary to carry out such proposes; to construct, equip
and maintain camp buildings, amusement halls, school buildings, dwelling houses
and all other buildings necessary or convenient to carry out such purposes; to
employ doctors, nurses, teachers and counsellors to care for and
<PAGE>
2
promote the education, health, recreation and general welfare of the employees
of The Koppers Coal Company and their families; to acquire farm lands and to
cultivate such lands; to raise livestock and poultry; to produce crops,
vegetables and fruits; to buy and sell farm products, poultry, cattle and all
other commodities and merchandise necessary for the conduct and maintenance of
the said camps, the profit, if any, derived from any and all activities to be
conducted by this company to be used by the company for the purposes herein
specified and not for the profit of any person or corporation.
IV. This corporation is not being organized for profit and will not
be authorized to issue capital stock.
V. The names and post office address of the incorporators are as
follows:
Name P. O. Address
P. C. Thomas, 1050 Koppers Building,
Pittsburgh, Pennsylvania
L. C. Campbell, 1050 Koppers Building,
Pittsburgh, Pennsylvania
J. W. Tyson, II, 1050 Koppers Building,
Pittsburgh, Pennsylvania
Thomas E. Lightfoot, 1050 Koppers Building,
Pittsburgh, Pennsylvania
C. R. Stahl, Powellton, West Virginia.
VI. The existence of this corporation is to be perpetual.
WE, THE UNDERSIGNED, for the purpose of forming a Corporation under
the laws of the State of West Virginia do make and file this Agreement; and we
have accordingly hereunto set our respective hands this 5th day of July, 1940.
<PAGE>
3
P. C. Thomas
L. C. Campbell
J. W. Tyson, II
Thomas E. Lightfoot
C. R. Stahl.
WHEREFORE, The corporator named in the said Agreement, and who have
signed the same, and their successors and assigns, are hereby declared to be
from this date a Corporation by the name and for the purposes set forth in the
said agreement, with the right of perpetual succession.
Given under my hand and the Great Seal of the
said State, at the City of Charleston, this
Twentieth day of July, Nineteen Hundred and
Forty.
(SEAL)
(SIGNED) WM. S. O'BRIEN
---------------------------------------
Secretary of State
State of West Virginia
Office of the Clerk of the County Court
of Summers County July 22, 1940
The foregoing instrument of Writing, with
Certificate of acknowledgement thereon,
was this day presented in said office and
admitted to Record.
(SIGNED) HAROLD E. PRICE
- -----------------------------------------
Clerk
<PAGE>
STATE OF WEST VIRGINIA
CERTIFICATE
I, Wm. S. O'Brien, Secretary of State of the State of West Virginia,
hereby certify that Thomas E. Lightfoot, Vice President of KOPPERS RECREATION
CAMPS, INC., a corporation created and organized under the laws of the State of
West Virginia, has certified to me under his signature and the corporate seal of
said corporation, that, at a meeting of the voting members of said corporation,
regularly held in accordance with the requirements of the law of said State, at
the office of said corporation in the City of Pittsburgh, County of Allegheny
and Commonwealth of Pennsylvania, on the third day of November, 1947, at which
meeting a majority of the members entitled to vote were represented and voted in
favor or the same, the following resolution was duly and regularly adopted and
passed, to wit:
"RESOLVED, That the name of this corporation be and the same is hereby
changed from Koppers Recreation Camps, Inc. to Eastern Gas and Fuel
Recreations Camps, Inc., and that any Vice-President of this corporation is
hereby authorized to certify this resolution to the Secretary of State of
the State of West Virginia, as required by the laws of the State of West
Virginia.
WHEREFORE, I do declare said change of name to be authorized by law,
and that said corporation shall hereafter by known by the name of EASTER GAS AND
FUEL RECREATION CAMPS, INC.
Given under my hand and Great Seal of the said State, at the City of
Charleston, this twenty fourth day of November 1947.
/s/ Robert D. Bailey
------------------------------
Secretary of State
[SEAL]
<PAGE>
STATE OF WEST VIRGINIA
CERTIFICATE
I, Robert D. Bailey, Secretary of State of the State of West Virginia,
hereby certify that the following and hereto attached is a true and correct copy
of the Certificate issued by the Secretary of State on the 2nd day of May, 1966,
changing the name of EASTERN GAS AND FUEL RECREATION CAMPS, INC., to EACC CAMPS,
INC.; as it appears from the records of my said office.
Given under my hand and the Great Seal of the said State at the City
of Charleston, this second day of May, 1966.
/s/ Robert D. Bailey
------------------------------
Secretary of State
[SEAL]
<PAGE>
STATE OF WEST VIRGINIA
CERTIFICATE
I, Robert D. Bailey, Secretary of State of the State of West Virginia,
hereby certify that A. P. BOXLEY, Vice President of EASTERN GAS AND FUEL
RECREATION CAMPS, INC., a corporation created and organized under the laws of
the State of West Virginia, has certified to me under his signature and the
corporate seal of said corporation, that, at a meeting of the members of said
corporation, regularly held in accordance with the requirements of the law of
State, at the office of said corporation, in the Koppers Building, Pittsburgh,
Pennsylvania, on the 13th day of April, 1966, at which meeting more than a
majority of the voting members of such corporation being represented, in person,
and voting for the following resolutions, the same were duly and regularly
adopted and passed, to-wit:
"WHEREAS on March 24, 1966, a written notice was mailed to the
members, who are also the directors, of Eastern Gas and Fuel Recreation
Camps, Inc., advising all of them that the annual meeting of Eastern Gas
and Fuel Recreation Camps, Inc., would be held on Wednesday, April 13,
1966, at the corporation's office in the Koppers Building, Pittsburgh,
Pennsylvania; and
WHEREAS said written notice, which was mailed more than ten days prior
to said annual meeting, also advised that the members and directors would
vote upon the matter of amending Articles I, II and III of the
corporation's Certificate of Incorporation, as fully set forth in said
notice of meeting;
NOW, THEREFORE, BE IT RESOLVED:
1. That Article I of this corporation's Certificate of Incorporation
be and the same hereby is amended to read as follows:
`I. The name of the corporation shall be EACC CAMPS, INC."
<PAGE>
2
2. That Article II of this corporation's Certificate of
Incorporation be and the same hereby is amended to read as follows:
`II. The principal office or place of business of said Corporation
will be located in the Koppers Building,in the City of Pittsburgh, County
of Allegheny and State of Pennsylvania. Its chief works will be located in
Summers County, West Virginia.'
3. That Article III of this corporation's Certificate of
Incorporation be and the same hereby is amended to read as follows:
`III. The objects for which this Corporation is formed are as follows:
To build, conduct and maintain camps, playgrounds, swimming pools,
schools and place of amusement to be used for the promotion of the
education, health, recreation and general welfare of the employees of
Eastern Associated Coal Corp. and their families and for the purpose of
training the children of said employees to the end that they may become
more useful citizens; to buy, sell and exchange real estate necessary to
carry out such purposes; to construct, equip and maintain camp buildings,
amusement halls, school buildings, dwelling houses and all other buildings
necessary or convenient to carry out such purposes; to employ doctors,
nurses, teachers and counselors to care for and promote the education,
health, recreation and general welfare of the employees of Eastern
Associated Coal Corp. and their families; to acquire farm lands and to
cultivate such lands; to raise livestock ad poultry; to produce crops,
vegetables and fruits; to buy and sell farm products, poultry, cattle and
all other commodities and merchandise necessary for the conduct and
maintenance of the said camps, the profit, if any, derived from any and all
activities to be conducted by this company to be used by the company for
the purposes herein specified and not for the profit of any person or
corporation.'
and be it
FURTHER RESOLVED that the President or Vice President of this
corporation be and he hereby is authorized and directed to certify these
resolutions to the Secretary of State of the State of West Virginia, as
required by the laws of said State."
WHEREFORE, I do declare said amendment of the Certificate of
Incorporation and change of name as set forth in the foregoing resolutions
authorized by law, and that said
<PAGE>
3
corporation shall hereafter be known by the name of EACC CAMPS, INC.
Given under my hand and the Great Seal of the said State, at the City
of Charleston, this second day of May, 1966.
ROBERT D. BAILEY,
Secretary of State
[SEAL]
<PAGE>
STATE OF WEST VIRGINIA
CERTIFICATE
I, Robert D. Bailey, Secretary of State of the State of West Virginia,
hereby certify that the following and hereto attached is a true and correct copy
of the Certificate issued by the Secretary of State on the 2nd day of May, 1966,
changing the name of EASTERN GAS AND FUEL RECREATION CAMPS, INC., to EACC CAMPS,
INC.; as it appears from the records of my said office.
Given under my hand and the Great Seal of the said State at the City
of Charleston, this second day of May, 1966.
/s/ Robert D. Bailey
------------------------------
Secretary of State
[SEAL]
<PAGE>
STATE OF WEST VIRGINIA
CERTIFICATE
I, Robert D. Bailey, Secretary of State of the State of West Virginia,
hereby certify that A. P. BOXLEY, Vice President of EASTERN GAS AND FUEL
RECREATION CAMPS, INC., a corporation created and organized under the laws of
the State of West Virginia, has certified to me under his signature and the
corporate seal of said corporation, that, at a meeting of the members of said
corporation, regularly held in accordance with the requirements of the law of
State, at the office of said corporation, in the Koppers Building, Pittsburgh,
Pennsylvania, on the 13th day of April, 1966, at which meeting more than a
majority of the voting members of such corporation being represented, in person,
and voting for the following resolutions, the same were duly and regularly
adopted and passed, to-wit:
"WHEREAS on March 24, 1966, a written notice was mailed to the
members, who are also the directors, of Eastern Gas and Fuel Recreation
Camps, Inc., advising all of them that the annual meeting of Eastern Gas
and Fuel Recreation Camps, Inc., would be held on Wednesday, April 13,
1966, at the corporation's office in the Koppers Building, Pittsburgh,
Pennsylvania; and
WHEREAS said written notice, which was mailed more than ten days prior
to said annual meeting, also advised that the members and directors would
vote upon the matter of amending Articles I, II and III of the
corporation's Certificate of Incorporation, as fully set forth in said
notice of meeting;
NOW, THEREFORE, BE IT RESOLVED:
1. That Article I of this corporation's Certificate of Incorporation
be and the same hereby is amended to read as follows:
`I. The name of the corporation shall be EACC CAMPS, INC."
<PAGE>
2
2. That Article II of this corporation's Certificate of
Incorporation be and the same hereby is amended to read as follows:
`II. The principal office or place of business of said Corporation
will be located in the Koppers Building,in the City of Pittsburgh, County
of Allegheny and State of Pennsylvania. Its chief works will be located in
Summers County, West Virginia.'
3. That Article III of this corporation's Certificate of
Incorporation be and the same hereby is amended to read as follows:
`III. The objects for which this Corporation is formed are as
follows:
To build, conduct and maintain camps, playgrounds, swimming pools,
schools and place of amusement to be used for the promotion of the
education, health, recreation and general welfare of the employees of
Eastern Associated Coal Corp. and their families and for the purpose of
training the children of said employees to the end that they may become
more useful citizens; to buy, sell and exchange real estate necessary to
carry out such purposes; to construct, equip and maintain camp buildings,
amusement halls, school buildings, dwelling houses and all other buildings
necessary or convenient to carry out such purposes; to employ doctors,
nurses, teachers and counselors to care for and promote the education,
health, recreation and general welfare of the employees of Eastern
Associated Coal Corp. and their families; to acquire farm lands and to
cultivate such lands; to raise livestock ad poultry; to produce crops,
vegetables and fruits; to buy and sell farm products, poultry, cattle and
all other commodities and merchandise necessary for the conduct and
maintenance of the said camps, the profit, if any, derived from any and all
activities to be conducted by this company to be used by the company for
the purposes herein specified and not for the profit of any person or
corporation.'
and be it
FURTHER RESOLVED that the President or Vice President of this
corporation be and he hereby is authorized and directed to certify these
resolutions to the Secretary of State of the State of West Virginia, as
required by the laws of said State."
WHEREFORE, I do declare said amendment of the Certificate of
Incorporation and change of name as set forth in the foregoing resolutions
authorized by law, and that said
<PAGE>
3
corporation shall hereafter be known by the name of EACC CAMPS, INC.
Given under my hand and the Great Seal of the said State, at the City
of Charleston, this second day of May, 1966.
ROBERT D. BAILEY,
Secretary of State
[SEAL]
<PAGE>
EXHIBIT 3.28
BY-LAWS
-------
OF
--
KOPPERS RECREATION CAMPS. INC.
------------------------------
ARTICLE I
---------
Offices
-------
The principal office of the corporation shall be in the City of
Pittsburgh, County of Allegheny and Commonwealth of Pennsylvania, and the
corporation may have also offices at such other places as the Board of Directors
may from time to time designate, or the business of the corporation may require.
ARTICLE II
----------
Seal
----
The corporate seal shall have inscribed thereon the name of the
corporation and the words "Seal, West Virginia."
ARTICLE III
-----------
Directors
---------
Section 1. The Board of Directors of the Corporation shall consist of
one or more members as fixed from time to time by resolution of the Board of
Directors or the Shareholders. They shall be elected at the first meeting of the
corporators.
Section 2. The Board of Directors may hold its meetings and keep the
books of the corporation outside of West Virginia at the office of the
corporation in the City of Pittsburgh, Pennsylvania, or at such other places as
the said Board of Directors may from time to time determine. The Board of
<PAGE>
2
Directors may designate an office as the general office of the corporation.
Section 3. The Board of Directors shall hold an annual meeting of
which no notice shall be required to be given to any director, and, if a quorum
be present (or, if a quorum be not then present, then at an adjournment of said
meeting at which a quorum shall be present, of which no notice other than
announcement at the time of adjournment shall be required to be given, or at a
special meeting held as soon as practicable thereafter on notice as prescribed
by these By-Laws, or at the next regular meeting;) shall elect a President, one
or more Vice Presidents, a Secretary and a Treasurer. The Board of Directors may
at said meeting or any other, elect a Chairman of the Board of Directors, one or
more additional Vice Presidents one or more Assistant Treasurers and one or more
Assistant Secretaries Officers may but need not be directors.
The Board of Directors may also appoint such other officers and agents
as it shall deem necessary, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors.
If the election of officers be not held at the time prescribed by
these By-Laws, it may be held at any subsequent meeting of the Board of
Directors.
The Secretary and Treasurer may or may not be the same person, and any
Vice President may hold at the same time the office of Treasurer or Secretary,
but not both. The Treasurer
<PAGE>
3
shall be ex officio Assistant Secretary and the Secretary shall be ex officio
Assistant Treasurer.
Section 4. Regular meetings of the Board of Directors may be held,
without notice, at such time and place as shall, from time to time, be
determined by the Board of Directors.
Section 5. Special meetings of the Board of Directors shall be held at
any time at the direction of the President, any Vice President, or any four
directors.
Section 6. Except as otherwise provided by law or these By-Laws,
notice of the time and place of any special meeting of the Board of Directors
shall be given by the Secretary, as provided in Section 2 of Article VII, to
each director at least twenty-four (24) hours prior to the time appointed for
such meetings.
Unless otherwise indicated in the notice thereof, any business may be
transacted at a special meeting.
Section 7. A majority of the Directors in office (amended 8/16/90)
shall constitute a quorum at all meetings of the Board of Directors. If,
however, such majority shall not be present at any meetings, the Directors
present shall have power to adjourn the meeting from time to time, without
notice other than announcement at the time of adjournment, until the requisite
number be present. The act of a majority of the directors present at any meeting
at which there is a quorum, shall be the act of the Board of Directors, except
as may be otherwise specifically provided by law.
Section 8. The Board of Directors may from time to time, by resolution
or resolutions passed by a majority of the whole
<PAGE>
4
Board, designate from their own number one or more committees of not less than
two (2) members each, which shall have such powers as the Board of Directors may
prescribe. One of such committees may be designated as the Executive Committee,
which, unless the Board of Directors shall otherwise provide, shall have and may
exercise, when the Board of Directors is not in session all the powers of the
Board of Directors in the management of the business and affairs of the
corporation, and shall have power to authorize the seal of the corporation to be
affixed to all papers which may require it. Each member of the Executive
Committee shall continue as a member thereof during the pleasure of the Board of
Directors. The Board of Directors may at any time dispense with the Executive
Committee entirely. Vacancies in the membership of the Executive Committee
shall be filled by the Board of Directors.
The Executive Committee may establish a fixed time and place for
regular meetings, and no call or notice of any such meeting shall be required.
Special meetings of the Executive Committee may be held at any time or any place
when called by the President or by any member of the Executive Committee. Notice
of such meetings may be given in the manner provided for giving notice of
special meetings of the Board of Directors. A majority of the members of the
Executive Committee shall constitute a quorum, but less than a quorum may
adjourn a meeting from time to time.
The Executive Committee shall keep minutes of its proceedings and
report the same to the Board of Directors at the next regular meeting thereof.
<PAGE>
5
ARTICLE IV
----------
Duties of Officers
------------------
The Chairman
------------
Section 1. If there be a Chairman of the Board of Directors, he shall,
if present, preside at all meetings of the Board of Directors, and he shall have
such other duties and powers as may be prescribed by the Board of Directors.
The President
-------------
Section 2. The President shall be the principal executive officer of
the corporation; he shall, if present and in the absence of the Chairman of the
Board of Directors, if any, preside at all meetings of the Board of Directors.
He shall have general and active management of the business of the corporation,
and shall see that all orders and resolutions of the Board of Directors are
carried into effect. He shall have power to appoint and remove such subordinate
officers and agents, other than those appointed or elected by the Board of
Directors, as the business of the corporation may require and to fix their
compensation. He shall perform such other duties as may be prescribed for him
elsewhere in these By-Laws or by the Board of Directors.
The Vice President
------------------
Section 3. The Vice President, or any Vice President, if there be more
than one, shall in the absence or disability of the President, perform the
duties and exercise the powers of the President and shall perform such other
duties as may be prescribed by the Board of Directors or the President; and the
performance of any of the duties and/or the exercise of any of
<PAGE>
6
the powers of the President by any Vice President shall as to third parties be
conclusive proof of his authority so to do.
The Secretary
-------------
Section 4. The Secretary shall keep and transcribe minutes of all
meetings of the stockholders, of the Board of Directors and of the Executive
Committee, if any. He shall have the custody of the seal of the corporation and
shall affix the same to such documents as may require it, and shall have charge
of the records of the corporation, except when otherwise directed by the Board
of Directors. He shall give all such notices as are required by law or these
By-Laws, and shall perform such other duties as may be prescribed by the Board
of Directors or the President.
The Treasurer
-------------
Section 5. The Treasurer shall have the care and custody of the funds,
securities and other intangible assets of the corporation, and shall deposit the
same in the name of the corporation in such depositaries as the Board of
Directors or the President shall designate. He shall make disbursements for
liabilities of the corporation, and shall keep books of account showing in
detail all moneys received and paid out by him, which books shall at all times
be open to the inspection of the officers and directors of the corporation. He
shall have the custody of the stock books and stock ledgers and shall perform
such other duties as may be prescribed by the Board of Directors or the
President.
<PAGE>
7
Assistant Secretaries and Assistant Treasurers
----------------------------------------------
Section 6. Assistant Secretaries and Assistant Treasurers shall, in
the absence or disability of the Secretary or the Treasurer, perform the duties
and exercise the posers of their respective superiors in office and shall also
perform such other duties as may be assigned to them by such superiors; and the
performance of any of the duties and/or the exercise of any of the powers of the
Secretary or the Treasurer by any Assistant Secretary or Assistant Treasurer,
respectively, shall as to third parties be conclusive proof of his authority so
to do.
ARTICLE V
---------
Resignations, Removals and Vacancies
------------------------------------
Section 1. Any Director, member of a committee or officer may resign
at any time. Such resignation shall be made in writing, and shall take effect
at the time specified therein, or if no time be specified, at the time of its
receipt by the President or Secretary. The acceptance of a resignation shall
not be necessary to make it effective, unless such resignation is by its terms
to be effective only upon acceptance.
Section 2. All officers, agents and employees of the corporation
shall be subject to removal or discharge at any time by the affirmative vote of
a majority of the Whole Board of Directors. All agents and employees, other
than those elected or appointed by the Board of Directors, shall also be subject
to removal or discharge at any time by the officer appointing or employing them.
Section 3. If the office of any Director becomes vacant for any
cause, the remaining Directors in office, though less than a
<PAGE>
8
quorum, by a majority vote may elect a person to fill such vacancy, who shall
hold office for the unexpired portion of the term and until his successor shall
be duly chosen and qualified, unless sooner displaced.
Section 4. If the position of any officer, agent or employee elected
or appointed by the Board of Directors becomes vacant for any cause, such
vacancy may be filled by the Board of Directors. If the position of any other
agent or employee becomes vacant for any cause, such vacancy may be filled by
the Board of Directors or by the officer who originally appointed or employed
such agent or employee.
ARTICLE VI
----------
Execution of Contracts, Checks and Other Instruments
----------------------------------------------------
Contracts
---------
Section 1. Except as herein otherwise provided, contracts and other
instruments may be executed and delivered in the name of and on behalf of the
corporation by the President or any Vice President, or by any other officer,
agent or employee of the corporation thereunto authorized by the Board of
Directors, and such authority may be general or confined to specific instances;
the seal of the corporation may be affixed to any such contract or other
instrument by any officer of the corporation.
Checks and Other Instruments
----------------------------
Section 2. General Accounts: All checks drawn upon the General
----------------
Accounts of this corporation and all drafts, bills of exchange and notes or
other instruments or orders for the payment of money shall be signed by the
Treasurer or an Assistant Treasurer of the corporation or by such other officer,
employee
<PAGE>
9
or agent of the corporation as may be designated by the Board of Directors or
the Treasurer, and shall be countersigned by the President or a Vice President
or such other officer, employee or agent as may be designated by the Board of
Directors or the President; provided that all such instruments shall be signed
and countersigned by separate persons; and provided that the Board of Directors
may designate and appoint a corporation as the agent of this corporation to sign
such instruments, in which event such instruments shall be signed by the
officers, employees or agents of such corporation who are generally authorized
or designated by or pursuant to the By-Laws or resolutions of the Board of
Directors of such corporation.
ARTICLE VII
-----------
Notice
------
Section 1. Notice of the time, place or purpose of any meeting whether
required by the provisions of Article 1 of Chapter 31 of the Code of West
Virginia or by these By-Laws may be dispensed with if every director shall
attend in person, or if every absent director shall, in writing, filed with the
records of the meeting, either before or after the holding thereof, waive such
notice.
Section 2. Whenever any notice is required to be given under the
provisions of law or of these By-Laws, unless such provisions otherwise direct,
such provisions shall not be construed to mean personal notice, but such notice
may be given (1) personally, (2) in writing (a) by depositing the same in the
United States mails, postage prepaid, addressed to the person entitled to such
notice at such address as appears on the books
<PAGE>
10
of the corporation, or at the usual business address of such person, or in
default of either such address, to the general post office in the City of
Pittsburgh, State of Pennsylvania, or (b) by delivering or causing such notice
to be delivered at either of such addresses, or (3) by sending a prepaid
straight telegram addressed to the person entitled to such notice at either of
such addresses; and such notice shall be deemed to be given at the time when the
same shall be thus delivered or given to the telegraph company, if so given, and
twenty-four hours after the same shall be thus mailed, if so given; and any
notice may be given to one person entitled thereto by any of the foregoing
methods and to another or other persons entitled thereto by another or other of
such methods.
ARTICLE VIII
------------
Amendments
----------
These By-Laws may be amended, altered or repealed at any meeting of
the Board of Directors by a majority vote of those present, or represented at
the meeting either in person or by proxy.
<PAGE>
EXHIBIT 3.29
CERTIFICATE OF INCORPORATION
OF
EASTERN ASSOCIATED COAL CORP.
1. The undersigned agree to become a corporation by the name of
EASTERN ASSOCIATED COAL CORP.
2. The principal place of business of the corporation shall be
located in the City of Weston, in the County of Lewis, and State of West
Virginia, and its chief works shall be located in said Lewis County, State of
West Virginia, and elsewhere in the State of West Virginia. The corporation may
transact business and have an office or offices at any other place or places as
may be provided by its By-Laws.
3. The objects and purposes for which the corporation is formed are
as follows:
To mine, sell, purchase, deal in, export or import coal, coke and wood
and other similar combustible material, and to purchase, lease and sell coal
lands, coal rights, coal rights, coal and timber lands and to manufacture, buy
sell and deal in or deal with coal and coke and all products and by-products of
any such lands, rights and materials.
To purchase or otherwise acquire, and to hold, own, maintain, work and
develop, and to sell, lease, convey, mortgage or otherwise dispose of, within or
without the State of West Virginia, and in any part of the world, lands
leaseholds and any interest, estate and rights in real property, and in personal
or
<PAGE>
2
mixed property, or any franchises, rights, licenses of privileges necessary,
convenient or appropriate for any of the purposes herein expressed.
To acquire, own, lease, mortgage, occupy, sell, use of develop any
lands containing coal, iron manganese, or other ores or oil and gas and any
woodlands or other lands, for any purpose of the company, and to mine, or
otherwise extract or remove, coal, oil, gas, ores or other minerals, and to take
or remove such minerals from any lands owned, acquired, leased or occupied by
the corporation or from any other lands, and to buy and sell, import and export,
or otherwise to deal or to traffic in or to use or consume coal, coke, oil, gas,
wood, lumber and other materials or ores and any part of the products thereof,
and any articles consisting, or partly consisting thereof.
To manufacture or otherwise produce, import, export, buy, sell, and in
every way deal with and in, either as principal or agent or otherwise, goods,
wares and merchandise and personal property of every kind and description.
To purchase, lease, erect, or otherwise acquire, exchange, sell, let
or otherwise dispose of, own, maintain, develop and improve any and all
property, real or personal, mines, coke ovens, plants, oil and gas wells,
depots, factories, warehouses, stores, buildings or otherwise useful in
connection with the business of the corporation.
To apply for, obtain, purchase or otherwise acquire any and all
patents, patent rights,copyrights, licenses and privileges, inventions,
improvements and processes, trade-marks, trade names, labels, designs, and
brands relating to or useful in
<PAGE>
3
connection with any business of the corporation; and to use, exercise, develop,
grant licenses in respect of, sell, traffic in and exchange the same.
To subscribe to, purchase, acquire, hold, own, invest in, assign,
pledge or otherwise dispose of or deal in the stocks, bonds and other securities
and obligations of any other corporation, domestic or foreign, and issue in
exchange therefor its stock, bonds, or other obligations and while the owner of
any such stock, bonds or other obligations, to possess and exercise in respect
thereof all the rights, powers and privileges of individual owners thereof,
including any and all voting powers.
To acquire the good will, rights and property, and to undertake the
whole or any part of the assets and liabilities, of any person, firm,
association or corporation and to pay for the same in cash, stock or bonds of
this corporation or otherwise, and to issue its stock or bonds in whole or
fractional shares thereof in payment of real and personal property for its use
and for its other corporate purposes and businesses upon such terms and
conditions as may be agreed upon by the owners and the directors or stockholders
of this corporation.
To borrow money for the purposes of the corporation and to issue
bonds, notes, debentures and other obligations and to secure the same by pledge
or mortgage of the whole or any part of the property of the corporation, either
real or personal, or to issue bonds, notes, debentures or other obligations
without any such security, and to sell or pledge such bonds, notes, debentures
and other obligations of the corporation, secured or
<PAGE>
4
unsecured, the right to convert the same into stock of the corporation.
To conduct its business and all or any of its branches so far as
permitted by law, in the State of West Virginia and in other states of the
United States of America and in the territories and the District of Columbia,
and in any and all dependencies, colonies, or possessions of the United States
and in foreign countries.
The foregoing clauses in this Article shall be construed as stating
both purposes and powers. It is the intention that the purposes and powers
specified in said clauses shall be in no wise limited or restricted by reference
to or inference from the terms of any other clause of this or any other Article
in this certificate, but that the purposes and powers specified in each of the
clauses of this Article shall be regarded as independent and cumulative purposes
and powers.
4. The amount of the total authorized capital stock of said
corporation shall be One Thousand (1,000) shares of common stock of a par value
of One Dollar ($1.00) per share.
The amount of capital with which the corporation will commence
business is One Thousand Dollars ($1,000.00).
5. Ownership of any class of share of stock of the corporation shall
not entitle the holders thereof to any pre-emptive rights to subscribe for or
purchase or to have offered to them for subscription or purchase any new or
additional share or shares of stock of any class, or any options, bonds,
debentures, warrants, certificates of indebtedness or other securities
convertible into or representing, the right to purchase shares of
<PAGE>
5
any class of stock, either of that authorized in the Certificate of
Incorporation or thereafter authorized or any shares or securities convertible
into shares however acquired, issued or sold by the corporation it being the
purpose and intent that the Board of Directors shall have full right, power and
authority to offer for subscription or sale or to make any disposal of any or
all unissued shares of any class of stock of the corporation or any or all
shares issued and thereafter acquired by the corporation of any and all options,
bonds, debentures, warrants, certificates of indebtedness or other securities of
the corporation convertible into stock whether unissued or issued and reacquired
by the corporation as the Board of Directors in this Ownership of any class of
shares of stock of the discretion may deem advisable.
6. At all elections of Directors each stockholder shall be entitled
to as many votes as shall equal the number of votes which (except for the
provisions of this Article VI) such stockholder would be entitled to cast for
the election of Directors with respect to such shares multiplied by the number
of Directors to be elected, and such stockholder may cast all of his votes for a
single director or may distribute them upon the number to be voted for, or any
two or more of them, as he may see fit.
7. This corporation shall have perpetual existence.
8. The number of directors, who need not be stockholders or
residents of the State of West Virginia, shall be not less than three (3) nor
more than twenty (2), as determined The number of directors, who need not be in
the By-Laws of this corporation.
<PAGE>
6
9. The names and post office addresses of the incorporators and the
number of shares of stock subscribed for by each are as follows:
Names P.O. Addresses Number of Shares
----- -------------- ----------------
W.B. Ross 2165 Country Club Drive 1
Huntingdon Valley, Pennsylvania
DaCosta Smith Jr. 440 Center Avenue 1
Weston, West Virginia
J. N. Philips Indian Trail 1
North Scituate, Massachusetts
10. The following provisions are inserted for the regulation and
conduct of the affairs of the corporation and it is expressly provided that they
are intended to be in furtherance and not in limitation or exclusion of the
powers conferred by statute:
(a) Meetings of the stockholders and directors of the corporation for
all purposes may be held at its office or elsewhere in the State of West
Virginia, and meetings of the directors and stockholders may be held outside of
the State of West Virginia at such place or places as may from time to time be
designated in the By-laws, or by resolution of the Board of Directories.
(b) All corporate powers except those which by law expressly require
the consent of the stockholders shall be exercised by the Board of Directors.
(c) The Board of Directors shall have power from time to time to fix
and determine and vary the amount of the corporation's funds to be reserved for
any proper purpose and to direct and determine the use and disposition of any
surplus over
<PAGE>
7
and above its capital. In its discretion the Board of Directors may use and
apply any such surplus in purchasing or acquiring bonds or other obligations of
the corporation or shares of its own capital stock to such extent and in such
manner and upon such terms as the Board of Directors shall deem expedient. If
any shares of stock of the corporation shall have been purchased or otherwise
acquired by the corporation, the Board of Directors may, without action by the
stockholders, at any time or from time to time, restore all or part of said
shares to the status of authorized but unissued shares; provided that nothing
herein contained shall be deemed to limit the right of the Board of Directors to
cause the corporation to hold any such shares as treasury stock and to sell or
otherwise deal with such treasury stock as the Board of Directors shall deem
expedient. Any shares restored to the status of authorized but unissued shares
as hereinabove provided may be issued to the same extent and subject to the same
conditions as if such shares had not been previously issued. Whenever shares
are restored as hereinabove provided, any resulting surplus may be used for such
lawful purposes as shall be determined by the Board of Directors.
(d) Subject always to By-Laws made by the stockholders, the Board of
Directors may make By-Laws and from time to time may alter, amend or repeal any
By-Laws, but any By-Laws made by the Board of Directors may be altered or
repealed by the stockholders.
(e) The Board of Directors shall have power to the extent permitted by
law to make distributions or pay dividends to
<PAGE>
8
its stockholders in cash or in property including, but not limited to, stocks,
bonds or other securities of the corporation.
(f) No contract or other transaction between the corporation and any
other corporation shall be affected or invalidated by the fact that any one or
more of the directors of this corporation is or are interested in, or is a
director or officer, or are directors of officers of such other corporation, and
any director or directors, individually or jointly, may be a party or parties to
or may be interested in any contract or transaction of this corporation or in
which this corporation is interested; and no contract, act or transaction of
this corporation with any persons, firms or corporations, shall be affected or
invalidated by the fact that any direct or directors of this corporation is a
party, or are parties to or interest in such contract, act or transaction, or in
any way connected with such persons, firms or corporations, and each and every
person who may become a director of this corporation is hereby relieved from any
liability that might otherwise exist from contracting with the corporation for
the benefit of himself or any firm or corporation in which he may be in any wise
interested.
(g) Any person made a party to any action, suit or proceeding by
reason of the fact that he, his testator or interstate, is or was a director,
officer or employee of the corporation or of any corporation which he served as
such at the request of this corporation, shall be indemnified by this
corporation against the reasonable expenses, including attorney's fees, actually
and necessarily incurred by him in connection with the defense of such action,
suit or proceeding, or in connection
<PAGE>
9
with any appeal therein, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such officer, director or
employee is liable for negligence or misconduct in the performance of his
duties, provided, however, that if any such amount is paid otherwise than
pursuant to court order or action by the stockholders, the corporation shall
within eighteen (18) months from the date of such payment mail to its
stockholders at the time entitled to vote for the election of directors a
statement specifying the person paid, the amount of the payment and the final
disposition of the litigation. Except as otherwise provided by law, and in
addition to any other rights provided by law, any such person shall be entitled,
without demand by him upon the corporation, or any action by the corporation, to
enforce the right of indemnification or reimbursement hereinabove provided in an
action at law against the corporation. The right of indemnification or
reimbursement hereinabove provided or under any applicable statutes shall not be
deemed exclusive of any other right to which any such person may now or
hereafter be otherwise entitled.
<PAGE>
10
WE, THE UNDERSIGNED, for the purpose of forming a Corporation under
the laws of the State of West Virginia do make and file this Agreement; and we
have accordingly hereunto set our respective hands this 27th day of March, 1963
/s/ W. B. Ross
-------------------------------
W. B. Ross
/s/ DeCosta Smith Jr.
-------------------------------
DeCosta Smith Jr.
/s/ J. N. Philips
-------------------------------
J. N. Philips
<PAGE>
STATE OF WEST VIRGINIA
CERTIFICATE
I, Robert D. Bailey, Secretary of State of the State of West Virginia,
hereby certify that DaCOSTA SMITH JR., Vice President of EASTERN ASSOCIATED COAL
CORP., a corporation created and organized under the laws of the State of West
Virginia, has certified to me under his signature and the corporate seal of said
corporation, that, at a special meeting of the stockholders of said corporation,
regularly held in accordance with the requirements of the law of said State, in
Room 1724, Koppers Building, Pittsburgh, Pennsylvania, on the 18th day of
November, 1965, at which meeting all of the issued and outstanding voting stock
of such corporation being represented by the holders thereof, in person, by
bodies corporate or by proxy, and voting for the following resolution, the same
was duly and regularly adopted and passed, to-wit:
WHEREAS the notice of this special meeting of the stockholders of
Eastern Associated Coal Corp. held on Thursday, November 18, 1965, at 1:00
o'clock p.m. EST at its office in Room 1724 Koppers Building, Pittsburgh,
pennsylvania, specified that the stockholders would vote upon the matter of
amending Article IV of its Certificate of Incorporation thereby to increase
its authorized capital stock of 1,000 shares; whereby the stockholders were
duly inform of such proposed amendment; and
WHEREAS Article IV of this corporation's Certificate of Incorporation
dated March 27, 1963, fixed the authorized capital stock of the corporation
to consist of 1,000 shares all common stock of the par value of $1.00 per
share, and it is desired that the authorized capital stock of the
corporation be increase by an additional 4,000 shares of like stock so that
the authorized capital stock of the corporation shall be 5,000 shares of
like capital stock;
THEREFORE, BE IT RESOLVED, that the first paragraph of Article IV of
this corporation's Certificate of Incorporation be and the same is amended
to read as follows:
<PAGE>
2
"IV. The amount of the total authorized capital stock of said
corporation shall be 5,000 shares of common stock of a par value of One
Dollar ($1.00) per share."
WHEREFORE, I do declare said increase of the authorized capital stock
as set forth in the foregoing resolution is authorized by law.
Given under my hand and the Great Seal of the said State, at the City
of Charleston, this tenth day of December, 1965.
/s/ Robert D. Bailey
---------------------------
Secretary of State
[SEAL]
<PAGE>
STATE OF WEST VIRGINIA
CERTIFICATE
I, James R. McCartney, Secretary of State of the State of West
Virginia, hereby certify that R. H. FREEMAN, President of EASTERN ASSOCIATED
COAL CORP., a corporation created and organized under the laws of the State of
West Virginia, has certified to me under his signature and the corporate seal of
said corporation, that, at a meeting of the stockholders of said corporation,
regularly held in accordance with the requirements of the law of said State, in
Pittsburgh, Pennsylvania, on the 9th day of April, 1975, at which meeting more
than two-thirds of the issued and outstanding voting stock of such corporation
being represented by the holders thereof, in person, by bodies corporate or by
proxy, and voting for the following resolution, the same was duly and regularly
adopted and passed, to-wit:
"THEREFORE, BE IT RESOLVED, That Article II of this Corporation's
Certificate of Incorporation be and the same hereby is amended to read as
follows:
"II. The principal place of business of the Corporation shall be
located at 1302 South Eisenhower Drive, in the City of Beckley, in the
County of Raliegh and the State of West Virginia, and its chief works shall
be located in said Raleigh County, State of West Virginia and elsewhere in
the State of West Virginia. The Corporation may transact business and have
an office or offices at any other place or places as may be provided by its
by-laws."
WHEREFORE, I do declare said Change of Principal Office as set forth
in the foregoing resolution is authorized by law and that hereafter said
corporation shall be located at 1302 South Eisenhower Drive, in the City of
Beckley, County of Raliegh, State of West Virginia.
<PAGE>
2
Given under my hand and the Great Seal oft he said State, at the City
of Charles, this seventh day of May 1975.
/s/ Robert D. Bailey
---------------------------------
Secretary of State
[SEAL]
<PAGE>
EXHIBIT 3.30
BY-LAWS
of
EASTERN ASSOCIATED COAL CORP.
(Amended as of July 31 1992)
----------------------------
ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. Annual Meeting. The annual meeting of the stockholders,
--------------
commencing with the year 1988, shall be held in April, at such time as shall be
determined by the Board of Directors, for the purpose of electing directors, and
for the transaction of such other business as may be brought before the meeting.
(Amended April 21, 1987.)
SECTION 2. Special Meetings. Special meetings of the stockholders for any
----------------
purpose or purposes may be called by the President or by order of the Board of
Directors, and it shall be the duty of the Secretary to call such a meeting upon
a request in writing therefor stating the purpose or purposes thereof, delivered
to the Secretary, signed by the holders of record of not less than one-tenth of
the outstanding capital stock of the corporation.
SECTION 3. Place of Meeting. Meetings of the stockholders may be held at
----------------
its principal office in Weston, West Virginia, or elsewhere within the State of
West Virginia, or may be held outside the State of West Virginia at such place
or places as the Board of Directors may from time to time determine.
SECTION 3A. Transaction of Business and Maintenance of Offices. Business
--------------------------------------------------
may be transacted and offices may be maintained in such places within and
without the State of West Virginia as the President, any Senior Vice President
or any Vice President may from time to time determine. (Added February 7, 1979.)
SECTION 4. Notice of Stockholders' Meeting. Notice of the annual and of
-------------------------------
any special meeting of stockholders shall be given to each stockholder of record
at least ten and not more than forty days before the meeting by personally
delivering to such stockholder or by depositing in the United States mails,
addressed to the address last left by such stockholder with the Transfer Agent,
or in the absence of a Transfer Agent, the Registrar, or in the absence of a
Transfer Agent and a Registrar, the Secretary of the corporation, a written or
printed notice, signed by the President or a Vice President or the Secretary or
an Assistant Secretary, stating the place, day and hour of the meeting and the
purpose or purposes for which the meeting is called, and any such notice shall
be deemed given when personally delivered or deposited postage prepaid in the
United States mail.
<PAGE>
2
Any stockholder, or his attorney thereunto authorized, may waive notice of any
meeting either before, at or after the meeting.
SECTION 5. Quorum. At all meetings of stockholders the holders of record
------
of a majority of the issued and outstanding capital stock of the corporation,
present in person or by proxy, shall constitute a quorum for the transaction of
business. In the absence of a quorum, a majority in interest of those present or
represented may adjourn the meeting by resolution to a date fixed therein, and
no further notice thereof shall be required. At any such adjourned meeting at
which a quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called.
SECTION 6. Voting. At each meeting of the stockholders every stockholder
------
holding one or more shares of the capital stock of the corporation shall be
entitled to one vote for each such share registered in his name on the books of
the corporation at the time of the closing of the transfer books of the
corporation for such meeting or on the record date therefor, as the case may be,
except that, in the case of an election of directors, each stockholder shall be
entitled to as many votes as shall equal the number of votes which (except for
this cumulative voting provision) such stockholder would be entitled to cast for
the election of directors with respect to his shares of stock, multiplied by the
number of directors to be elected, and such stockholder may cast all of such
votes for a single director or may distribute them among the number to be voted
for, or any two or more of them, as he may see fit. Except for the election of
directors, all resolutions shall be adopted by a majority of votes properly cast
at the meeting; at elections of directors, those nominees up to the number to be
elected, receiving the largest number of votes shall be deemed elected. All
elections for directors shall be by ballot, but this requirement shall be deemed
to have been waived if at the meeting no stockholder shall demand a ballot vote.
SECTION 7. Proxies. Every stockholder entitled to vote at any meeting of
-------
stockholders may vote by proxy. Every proxy must be executed in writing by the
stockholder or by his duly authorized attorney. No proxy shall be voted after
the expiration of three years from the date of its execution unless the
stockholder executing it shall have specified a longer duration, and then only
within the period specified. Every proxy shall be revocable at the pleasure of
the person executing it or of his personal representatives or assigns except as
otherwise provided by law.
SECTION 8. Inspectors of Election. Two inspectors of election, who shall
----------------------
act as such at elections of directors, shall be elected by and shall serve at
the pleasure of the Board of Directors. If one or both of such inspectors fails
to appear at any meeting for the election of directors, the Chairman of the
meeting may appoint a substitute or substitutes to act at such
<PAGE>
3
meeting in place of such absent inspector or inspectors. Each inspector shall be
entitled to a reasonable compensation for his services, to be paid by the
corporation. The inspectors, before entering upon the discharge of their duties,
shall be sworn faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of their ability, and the
oath so taken shall be subscribed by them.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Powers. The property, affairs and business of the
--------------
corporation shall be managed by the Board of Directors.
SECTION 2. Number. The Board of Directors of the Corporation shall
------
consist of one or more members as fixed from time to time by resolution of the
Board of Directors or the Shareholders. (Amended August 16, 1990.)
SECTION 3. Term of Office and Qualification. Directors need not be
--------------------------------
stockbrokers and shall be elected to serve until the next annual election of
directors and until their successors are elected and shall have qualified.
SECTION 4. Chairman of the Board. The Board of Directors may elect a
---------------------
Chairman of the Board from among its members to serve at its pleasure, who shall
preside at all meetings of the Board of Directors and shall have such other
duties as from time to time may be assigned to him by the Board of Directors or
by the Executive Committee.
SECTION 5. Vacancies. Vacancies in the Board of Directors because of
---------
death, resignation, disqualification, physical or mental incapacity to act, an
increase in the number of members of the Board of Directors, or resulting from
any other cause whatsoever, shall be filled for the unexpired portion of the
term by a majority vote of the remaining directors, although less than a quorum,
given at a regular meeting, or at a special meeting called for the purpose.
SECTION 6. Place of Meeting. The Board of Directors shall hold its
----------------
meetings at such places within or without the State of West Virginia as it may
decide. One or more directors may participate in a meeting by means of
conference telephone or similar electronic communications equipment by means of
which all persons participating in the meeting can hear each other. (Amended
July 31, 1992.)
SECTION 7. Regular Meetings: Notice. The Board of Directors by resolution
------------------------
may establish regular periodic meetings and notice of such meetings need not be
given.
<PAGE>
4
SECTION 8. Special Meetings. Special meetings of the Board of Directors
----------------
shall be called by the Secretary or an Assistant Secretary whenever ordered by
the Board of Directors or requested in writing by the President or any two other
directors. Such meetings shall be held at the principal office of the
corporation unless the Board of Directors, by its order calling a special
meeting, shall fix a different place for such meeting. Notice of each special
meeting shall be mailed to each director, addressed to his residence or usual
place of business, at least four days before the day on which the meeting is to
be held, or shall be sent to such address by telegraph, or be given personally
or by telephone, not later than two days before the day on which the meeting is
to be held. Notice of any meeting may be waived in writing by any director
before, at or after the meeting.
SECTION 9. Quorum and Manner of Acting. A majority of the members of the
---------------------------
Board of Directors then in office shall constitute a quorum for the transaction
of any business at any meeting of the Board of Directors and, except as herein
otherwise provided, the act of a majority of those present at the meeting at
which a quorum is present shall be the act of the Board of Directors. In the
absence of a quorum of the Board of Directors a majority of the members present
may adjourn the meeting from time to time until a quorum be had, and no notice
of any such adjournment need be given.
SECTION 10. Fees. The Board of Directors may from time to time prescribe
----
reasonable fees for attendance by members of the Board of Directors and members
of the Executive Committee and other committees, and for reimbursement for
travel and other expenses incidental to such attendance.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. How Constituted and the Powers Thereof. The Board of Directors
--------------------------------------
by the vote of a majority of the entire Board, may designate three or more
directors to constitute an Executive Committee, who shall serve during the
pleasure of the Board of Directors. Except as otherwise provided by law, by
these by-laws or by resolution adopted by a majority of the whole Board of
Directors, the Executive Committee shall possess and may exercise during the
intervals between the meetings of the directors, all of the powers of the Board
of Directors in the management of the business, affairs and property of the
corporation, including the power to cause the seal of the corporation to be
affixed to all papers that may require it.
SECTION 2. Organization, etc. The Executive Committee shall choose its
-----------------
own Chairman and its Secretary and may adopt rules for its procedure. The
Committee shall keep a record of its acts and proceedings and report the same
from time to time to the Board of Directors.
<PAGE>
5
SECTION 3. Meetings. Meetings of the Executive Committee may be called by
--------
the Chairman of the Committee, and shall be called by him at the request of any
member of the Committee, or by any member if there shall be no Chairman. Notice
of each meeting of the Committee shall be sent to each member of the Committee
by mail at least two days before the meeting is to be held, or given personally
or by telegraph or telephone at least one day before the day on which the
meeting is to be held. Notice of any meeting may be waived before, at or after
the meeting.
SECTION 4. Quorum and Manner of Acting. A majority of the Executive
---------------------------
Committee shall constitute a quorum for the transaction of business, and the act
of a majority of those present at the meeting at which a quorum is present shall
be the act of the Executive Committee.
SECTION 5. Removal. Any member of the Executive Committee may be removed,
-------
with or without cause, at any time, by the Board of Directors.
SECTION 6. Vacancies. Any vacancy in the Executive Committee shall be
---------
filled by the Board of Directors.
SECTION 7. Other Committees. The Board of Directors or the Executive
----------------
Committee may by resolution provide for such other standing or special
committees as it deems desirable, and discontinue the same at pleasure. Each
Committee shall have such powers and perform such duties, not inconsistent with
law, as may be assigned to it by the Board of Directors or by the Executive
Committee.
ARTICLE IV
OFFICES AND OFFICERS
SECTION 1. Officers--Number. The officers of the Corporation shall be the
----------------
Chairman, the President, one or more Vice-Presidents as the Board of Directors
or Executive Committee may determine, a Treasurer and a Secretary. The Board of
Directors or Executive Committee may from time to time appoint one or more
Assistant Secretaries and Assistant Treasurers. The same person may hold any two
or more offices except those of President and Vice-President. No officer except
the President need be a member of the Board of Directors.
SECTION 2. Salaries. The Board of Directors or Executive Committee may
--------
from time to time fix the salary of the President, as well as the salaries of
other officers Of the corporation.
SECTION 3. Election, Term of Office and Qualification. All officers of
------------------------------------------
the corporation shall be elected annually (unless otherwise specified at the
time of election) by the Board of Directors or Executive Committee and each
officer shall hold office until his successor shall have been duly chosen and
shall
<PAGE>
6
have qualified, or until he shall resign or shall have been removed in the
manner hereinafter provided.
SECTION 4. Vacancies. If any vacancy shall occur in any office of the
---------
corporation, such vacancy shall be filled by the Board of Directors or by the
Executive Committee.
SECTION 5. Other Officers, Agents and Employees. The Board of Directors
------------------------------------
or the Executive Committee may from time to time appoint such other officers,
agents and employees of the corporation as may be deemed proper, and may
authorize any officer to appoint and remove agents and employees. The Board of
Directors or the Executive Committee or the President may from time to time
prescribe the powers and duties of such officers, agents and employees of the
corporation in the management of its property, affairs and business.
SECTION 6. Removal. Any officer of the corporation may be removed, either
-------
with or without cause, by vote of a majority of the Board of Directors or of the
Executive Committee, or, in the case of any officer, agent or employee not
elected by the Board of Directors or the Executive Committee, by any committee
or superior officer upon whom such power of removal may be conferred by the
Board of Directors or by the Executive Committee.
SECTION 7. Chairman. The Chairman shall preside at all meetings of the
--------
stockholders and of the Board of Directors, and shall perform such other duties
as shall be delegated to him at any time or from time to time by the Board of
Directors.
SECTION 8. President. The President shall be the chief executive officer
---------
of the corporation and shall have general direction of its business, affairs and
property and over its several officers. He shall see that all orders and
resolutions of the Board of Directors and of the Executive Committee are carried
into effect, and he shall have the power to execute in the name of the
corporation all authorized deeds, mortgages, ship mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof
shall have been expressly delegated to some other officer or agent of the
corporation; and in general, he shall perform all duties incident to the office
of a president of a corporation, and such other duties as from time to time may
be assigned to him by the Board of Directors or by the Executive Committee. He
shall be ex officio a member of all committees. He shall from time to time
report to the Board of Directors or to the Executive Committee all matters
within his knowledge which the interest of the corporation may require to be
brought to their notice.
SECTION 9. Vice-Presidents. The Vice-President or Vice-Presidents of the
---------------
corporation, under the direction of the President, shall have such powers and
perform such duties as the Board of Directors or Executive Committee or
President may from time to time prescribe, and shall perform such other duties
as
<PAGE>
7
may be prescribed in these by-laws. In case of the absence or inability of the
President to act, then the Vice-Presidents, in the order designated therefor by
the Board of Directors or Executive Committee, shall have the powers and
discharge the duties of the President.
SECTION 10. Treasurer. The Treasurer, under the direction of the
---------
President, shall have charge of the funds, securities, receipts and
disbursements of the corporation. He shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such banks or trust
companies or with such other depositories as the Board of Directors or Executive
Committee, with the approval of the Board of Directors of that direct subsidiary
of Eastern Gas and Fuel Associates which is the corporation's direct or indirect
parent company or entity, may from time to time designate. He shall supervise
and have charge of keeping correct books of account of all the corporation's
business and transactions. If required by the Board of Directors, he shall give
a bond in such sum as the Board of Directors or Executive Committee may
designate, conditioned upon the faithful performance of the duties of his office
and the restoration to the corporation, at the expiration of his term of office,
or in case of his death, resignation or removal from office, of all books,
papers, vouchers, money or other property of whatever kind in his possession
belonging to the corporation. He shall also have such other powers and perform
such other duties as pertain to his office, or as the Board of Directors or the
Executive Committee or the President may from time to time prescribe. (Amended
August 20, 1980.)
SECTION 11. Assistant Treasurers. In the absence of or disability of the
--------------------
Treasurer, the Assistant Treasurers, in the order designated by the Board of
Directors or by the Executive Committee, shall perform the duties of the
Treasurer, and, when so acting, shall have all the powers of, and be subject to
all restrictions upon, the Treasurer. They shall also perform such other duties
as from time to time may be assigned to them by the Board of Directors or by the
Executive Committee or the President.
SECTION 12. Secretary. The Secretary shall attend all meetings of the
---------
stockholders of the corporation and of its Board of Directors and shall keep the
minutes of all such meetings in a book or books kept by him for that purpose. He
shall keep in safe custody the seal of the corporation, and, when authorized by
the Board of Directors or the Executive Committee, he shall affix such seal to
any instrument requiring it. In the absence of a Transfer Agent or a Registrar,
the Secretary shall have charge of the stock certificate books, and the
Secretary shall have charge of such other books and papers as the Board of
Directors or Executive Committee may direct. He shall also have such other
powers and perform such other duties as pertain to his office, or as the Board
of Directors or the Executive Committee or the President may from time to time
prescribe.
<PAGE>
8
SECTION 13. Assistant Secretaries. In the absence or disability of the
---------------------
Secretary, the Assistant Secretaries, in the order designated by the Board of
Directors or Executive Committee, shall perform the duties of the Secretary,
and, when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the Secretary. They shall also perform such other duties as
from time to time may be assigned to them by the Board of Directors or Executive
Committee or the President.
ARTICLE V
CHECKS, DRAFTS, ETC.
All checks, drafts or orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents, person or persons, to whom the
Board of Directors or Executive Committee shall have delegated the power, but
under such conditions and restrictions as in said resolutions may be imposed.
The signature of any officer upon any of the foregoing instruments may be a
facsimile whenever authorized by the Board of Directors or by the Executive
Committee.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. Issue of Certificates of Stock. The Board of Directors or
------------------------------
Executive Committee shall provide for the issue and transfer of the certificates
of capital stock of the corporation, and prescribe the form of such
certificates. Every owner of stock of the corporation shall be entitled to a
certificate of stock, which shall be under the seal of the corporation (which
seal may be a facsimile, engraved or printed), specifying the number of shares
owned by him, and which certificate shall be signed by the President or Vice-
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the corporation. Said signatures may, wherever permitted
by law, be facsimile, engraved or printed. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on any such certificate or certificates shall cease to be such officer or
officers of the corporation, whether because of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the corporation.
SECTION 2. Transfer Agents and Registrars. The corporation may have one
------------------------------
or more Transfer Agents and one or more Registrars of its stock, whose
respective duties the Board of Directors may, from time to time, prescribe. If
the corporation shall have a Transfer Agent, no certificate of stock shall be
valid until countersigned by such Transfer Agent, and if the corporation
<PAGE>
9
shall have a Registrar, until registered by the Registrar. The duties of the
Transfer Agent and Registrar may be combined.
SECTION 3. Transfer of Shares. The shares of the corporation shall be
------------------
transferable only upon its books and by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the corporation by the delivery
thereof to the person in charge of the stock transfer books and ledgers or to
such other person as the Directors may designate for such purpose, and new
certificates shall thereupon be issued.
SECTION 4. Addresses of Stockholders. Every stockholder shall furnish the
-------------------------
Transfer Agent, or in the absence of a Transfer Agent, the Registrar, or in the
absence of a Transfer Agent and a Registrar, the Secretary, with an address at
or to which notices of meetings and all other notices may be served upon or
mailed to him, and in default thereof, notices may be addressed to him at the
office of the corporation.
SECTION 5. Closing of Transfer Books: Record Date. The Board of Directors
--------------------------------------
shall have power to close the stock transfer books of the corporation for a
period not exceeding forty (40) days and not less than ten (10) days prior to
the date of any meeting of stockholders; provided, however, that in lieu of
closing the stock transfer books as aforesaid the Board of Directors may fix a
date not exceeding forty (40) days and not less than ten (10) days prior to the
date of any such meeting as the time as of which stockholders entitled to notice
of and to vote at such meeting shall be determined, and all persons who were
holders of record of voting stock at such time and no others shall be entitled
to notice of and to vote at such meeting.
The Board of Directors shall also have power to close the stock transfer
books of the corporation for a period not exceeding forty (40) days preceding
the date fixed for the payment of any dividend or the making of any distribution
or for the delivery of any evidence of right or evidence of interest; provided,
however, that in lieu of closing the stock transfer books as aforesaid the Board
of Directors may fix a date not exceeding forty (40) days preceding the date
fixed for the payment of any such dividend or the making of any such
distribution or for the delivery of any such evidence of right or interest as a
record time for the determination of the stockholders entitled to receive any
such dividend, distribution, right or interest, and in such case only
stockholders of record at the time so fixed shall be entitled to receive such
dividend, distribution, right or interest.
SECTION 6. Lost and Destroyed Certificates. The Board of Directors or
-------------------------------
Executive Committee may direct a new certificate or certificates of stock to be
issued in the place of any certificate or certificates theretofore issued and
alleged to
<PAGE>
10
have been lost or destroyed; but the Board of Directors or Executive Committee
when authorizing such issue of a new certificate or certificates, may in its
discretion require the owner of the stock represented by the certificate so lost
or destroyed or his legal representative to furnish proof by affidavit or
otherwise to the satisfaction of the Board of Directors or Executive Committee
of the ownership of the stock represented by such certificate alleged to have
been lost or destroyed and the facts which tend to prove its loss or
destruction. The Board of Directors or Executive Committee may also require
such person to execute and deliver to the corporation a bond, with or without
sureties, in such sum as the Board of Directors or Executive Committee may
direct, indemnifying the corporation against any claim that may be made against
it by reason of the issue of such new certificate. The Board of Directors or
Executive Committee, however, may, in its discretion, refuse to issue any such
new certificate, except pursuant to court order.
ARTICLE VII
SEAL
The corporate seal of the corporation shall be circular in form, shall bear
around the circumference the words "EASTERN ASSOCIATED COAL CORP." and in the
center the words "INCORPORATED, 1963, WEST VIRGINIA," or words of similar
import. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. Examination of Books and Records. The Board of Directors or
--------------------------------
Executive Committee may determine from time to time whether and to what extent
and at what times and places and under what conditions and regulations the
accounts and books of the corporation, or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the corporation, except as provided
by the statutes of the State of West Virginia, or authorized by the Board of
Directors or Executive Committee.
SECTION 2. Voting of Stock in Other Corporations. Any shares of stock in
-------------------------------------
any other corporation, which may from time to time be held by the corporation,
may be represented and voted at any of the stockholders' meetings thereof by the
President or a Vice-President of the corporation or by proxy appointed by the
President or one of the Vice-Presidents of the corporation. The Board of
Directors or Executive Committee, however, may by resolution appoint any other
person or persons to vote such shares, in which case such other person or
persons shall be entitled to vote such shares upon the production of a certified
copy of such resolution.
<PAGE>
11
SECTION 3. Fiscal Year. The fiscal year of the corporation shall be fixed
-----------
by resolution of the Board of Directors or the Shareholders. (Amended August 16,
1990.)
ARTICLE IX
INDEMNIFICATION
Any person made a party to any action, suit or proceeding by reason of the
fact that he, his testator or intestate, is or was a director, officer or
employee of the corporation or of any corporation which he served as such at the
request of the corporation, shall be indemnified by the corporation against the
reasonable expenses, including attorney's fees, actually and necessarily
incurred by him in connection with the defense of such action, suit, proceeding,
or in connection with any appeal therein, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such officer,
director or employee is liable for negligence or misconduct in the performance
of his duties; provided, however, that if any such amount is paid otherwise than
pursuant to court order or action by the stockholders, the corporation shall
within eighteen (18) months from the date of such payment mail to its
stockholders at the time entitled to vote for the election of directors a
statement specifying the person paid, the amount of the payment and the final
disposition of the litigation. Except as otherwise provided by law, and in
addition to any other right provided by law, every such person shall be
entitled, without demand by him upon the corporation, or any action by the
corporation, to enforce the right of indemnification or reimbursement
hereinabove provided in an action at law against the corporation. The right of
indemnification or reimbursement hereinabove provided or under any applicable
statutes shall not be deemed exclusive of any other right to which any such
person may now or hereafter be otherwise entitled.
ARTICLE X
AMENDMENTS
SECTION 1. By Stockholders. These by-laws may be made, amended, altered
---------------
or repealed, by the affirmative vote of the holders of a majority of the stock
of the corporation, or their proxies, who shall be present and entitled to vote
at any annual or special meeting of stockholders, provided that notice of the
proposed amendment, alteration or repeal shall have been included in the notice
of the meeting.
SECTION 2. By Directors. The Board of Directors shall have the power, by
------------
a vote of a majority of the Directors then in office, at a meeting upon waiver
of notice or called pursuant to a notice in which any such proposed-modification
of the by-laws is set forth, to make, amend, alter or repeal these by-laws
except that the Board of Directors shall have no power to alter, amend, or
repeal a by-law adopted by the stockholders subsequent to any original adoption
of these by-laws by the stockholders.
<PAGE>
EXHIBIT 3.31
CERTIFICATE OF INCORPORATION
OF
EASTERN ROYALTY CORP.
-----ooOoo-----
1. The name of the corporation is EASTERN ROYALTY CORP.
2. The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one hundred (100) and the par value of each of such
shares is One Dollars ($1.00) amounting in the aggregate to One Hundred Dollars
($100.00).
5A. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19801
B.A. Schuman 100 West Tenth Street
Wilmington, Delaware 19801
E. L. Kinsler 100 West Tenth Street
Wilmington, Delaware 19801
</TABLE>
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the
<PAGE>
2
stockholders or until a successor is elected and qualified, is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
R. H. Freeman One Beacon Street
Boston, Massachusetts 02108
</TABLE>
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
9. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true,
<PAGE>
3
and accordingly have hereunto set our hands this 16th day of April, 1980.
/s/ K. L. Husfelt
-------------------------
K. L. Husfelt
/s/ B. A. Schuman
-------------------------
B. A. Schuman
/s/ E. L. Kinsler
-------------------------
E. L. Kinsler
<PAGE>
EXHIBIT 3.32
EASTERN ROYALTY CORP.
---ooOoo---
B Y - L A W S
---ooOoo---
ARTICLE I
OFFICES
Section 1. The registered office shall be in the city of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1981, shall be held on the second Tuesday of April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 10:00 A.M., or
at such other date and time as shall be designated from time to time by the
board of
<PAGE>
2
directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the
<PAGE>
3
president and shall be called by the president or secretary at the request in
writing of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting
<PAGE>
4
as originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of
<PAGE>
5
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than ten. The first board shall
consist of one director. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner
<PAGE>
6
provided by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first
<PAGE>
7
meeting of the newly elected board of directors, or in the event such meeting is
not held at the time and place so fixed by the stockholders, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the board of directors, or as shall
be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on twenty-four hours' notice to each director, either personally or by
telephone, mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting
<PAGE>
8
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
<PAGE>
9
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation' and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
<PAGE>
10
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice,
<PAGE>
11
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram or telephone.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall
<PAGE>
12
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or
<PAGE>
13
in the event there be more than one vice-president, the vice-presidents in the
order designated by the directors, or in the absence of any designation, then in
the order of their election) shall perform the duties of the president, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the president. The vice-presidents shall perform such other duties and have
such other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined
<PAGE>
14
by the board of directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the secretary or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the secretary and shall perform such other duties and have such other powers
as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement
<PAGE>
15
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by,
the chairman or vice-chairman of the board of directors, or the president or a
vice-president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
Section 2. Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he
<PAGE>
16
were such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
<PAGE>
17
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
<PAGE>
18
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or
<PAGE>
19
such other person or persons as the board of directors may from time to time
designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
IDENTIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of
<PAGE>
20
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
21
Amendment of Bylaws
-------------------
RESOLVED, That Section 2 of Article II of the Bylaws of the Company is repealed
in its entirety and the following provision substituted in lieu thereof.
"Section 2. The annual meeting of the stockholders, commencing with the
year 1988, shall be held in April at the Principal office of the Corporation, or
at such other place, within or without the State of Delaware and at such time,
as shall be determine by the Board of Directors, for the purpose of electing
directors, and for the transaction of such other business as may be brought
before the meeting."
<PAGE>
EXHIBIT 3.33
CERTIFICATE OF INCORPORATION
-of-
EXPLORACIONES Y MINERALES SIERRA MORENA S.A.
FIRST: The name of the corporation is exploraciones y Minerales
-----
Sierra Morena S.A.
SECOND: The corporation's registered office in the State of delaware
------
is at 306 South State Street, in the City of Dover, County of Kent. The name of
its registered agent at that address is United States Corporation Company.
THIRD: The purpose of the corporation is to engage in any lawful act
-----
or activity for which corporations may be organized under the general
Corporations Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation
------
shall have authority to issue is one thousand (1,000) shares, all of which shall
be Common Stock without par value.
FIFTH: The name and mailing address of the corporator is as follows:
-----
William D. Stempel
299 Park Avenue
New York, New York 10017
SIXTH: The following provisions are inserted for the management of
-----
the business and for the conduct of the affairs of the corporation and for
further definition, limitation and regulation of the powers of the corporation
and of its directors and stockholders:
(1) The number of directors of the corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the by-laws,
election of directors need not be by ballot unless the by-laws so provide.
<PAGE>
2
(2) The Board of Directors shall have power without the assent or
vote of the stockholders to make, alter, amend, change, add to or repeal
the by-laws of the corporation; to fix and vary the amount to be reserved
for any proper purpose; to authorize and cause to be executed mortgages and
liens upon all or any part of the property of the corporation; to determine
the use and disposition of any surplus or net profits; and to fix the times
for the declaration and payment of dividends.
(3) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this Certificate of
Incorporation, and to any by-laws from time to time made by the
stockholders; provided, however, that no by-law so made shall invalidate
any prior act of the directors which would have been valid if such by-law
had not been made.
SEVENTH: The corporation reserves the right to amend, alter, change
-------
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law and all rights herein conferred on
stockholders, directors and officers are granted subject to this reserved power.
IN WITNESS WHEREOF, I the undersigned, being the incorporator
hereinabove name, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, do make and file this
Certificate, hereby declaring and certifying that the facts herein stated are
true, and accordingly have hereunto set my hand and seal, this 31st day of
October, 1979.
/s/ William D. Stempel
------------------------------
William D. Stempel
<PAGE>
3
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on this 31th day of October, 1979, personally
came before me, D. Judith Penci, a Notary Public in ad for the County and State
aforesaid, WILLIAM D. STEMPEL, the party to the foregoing Certificate of
Incorporation, known to me personally to be such, and acknowledged the said
Certificate to be his act and deed, and that the facts therein stated are true.
GIVES under my hand and seal of office the day and year aforesaid.
/s/ D. Judith Penci
---------------------------------
D. Judith Penci, Notary Public
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Exploraciones y Minerales Sierra Morena S.A., a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the
unanimous written consent of its members, filed with the minutes of the board,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation and said corporation:
RESOLVED, that the Certificate of Incorporation of Exploraciones
y Minerales sierra Morena S.A., be amended by changing the Article
First thereof so that, as amended, said Article shall be and read as
follows: "The name of the corporation is Gold Fields Chile, S.A."
SECOND: That is lieu of a meeting and a vote of stockholders, the
stockholders have give unanimous written consent to said amendment in accordance
with the provisions of Section 228 of the General Corporation Law of the State
of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Exploraciones y Minerales Sierra Morena S.A.,
has caused this certificate to be signed by
<PAGE>
2
William C. Bleimeister, its President, and attested by Stephen E. Flechner, its
Secretary, this 23rd day of March, 1990.
EXPLORACIONES Y MINERALES SIERRA MORENA S.A.
By /s/ William L. Bleimeister
----------------------------------
President
ATTEST:
By /s/ Stephen E. Flechner
---------------------------
Secretary
<PAGE>
EXHIBIT 3.34
BY-LAWS
OF
EXPLORACIONES Y MINERALES SIERRA MORENA S.A.
(A Delaware Corporation)
<PAGE>
1
ARTICLE 1
DEFINITIONS
-----------
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as
amended from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means Exploraciones y Minerales Sierra Morena S.A.
1.7 "Directors" means directors of the Corporation.
1.8 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the
Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 3.2 of the By-laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
<PAGE>
2
1.16 "Whole Board" means the total number of directors of the
Corporation.
ARTICLE 2
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of stockholders shall be held
-----------------
at the office of the Corporation or at such other place within or without the
State of Delaware as shall be specified or fixed in the notice of such meeting
or in the waiver of notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually
--------------
for the election of directors and the transaction of other business at 10:00
a.m. on the first Tuesday in October.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
------------------------------------------------
meeting of stockholders for the election of directors and the transaction of
other business is not held within the months specified in Section 2.2, the Board
shall call a meeting of stockholders for the election of directors and the
transaction of ocher business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other
----------------------
than a special meeting for the election of directors), unless otherwise
prescribed by statute, may be called at any time by the Board or by the
President or by the Secretary. At any special meeting of stockholders only such
business may be transacted as is related to the purpose or purposes of such
meeting set forth in the notice thereof given pursuant to Section 2.6 of the By-
laws or in any waiver of notice thereof given pursuant to Section 2.7 of the By-
laws.
2.5 Fixing Record Date. For the purpose of determining the
------------------
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action, the Board
may fix, in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. If no such record date is fixed:
2.5.1 The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held;
<PAGE>
3
2.5.2 The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which the first
written consent is expressed;
2.5.3 The record date for determining stockholders for any
purpose other than those specified in Sections 2.5.1 and 2.5.2 shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided
----------------------------------
in Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation
Law or the Certificate of Incorporation or the By-laws, stockholders are
required or permitted to take any action at a meeting, written notice shall be
given stating the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. A
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten nor more than sixty days before the date of the meeting, to each
stockholder entitled to notice of or to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
with postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation. An affidavit of the Secretary or an
Assistant Secretary or of the transfer agent of the Corporation that the notice
required by this section has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken, and at the adjourned meeting any business may be transacted that might
have been transacted at the meeting as originally called. If, however, the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
2.7 Waivers of Notice. Whenever notice is required to be given to
-----------------
any stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the By-laws, a written waiver thereof, signed by
the stockholder entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall constitute a waiver of notice of
<PAGE>
4
such meeting, except when the stockholder attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or
--------------------
cause to be prepared and made, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
2.9 Quorum of Stockholders; Adjournment. The holders of one-third of
-----------------------------------
the shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a majority of the shares of stock present in
person or represented by proxy at any meeting of stockholders, including an
adjourned meeting, whether or not a quorum is present, may adjourn such meeting
to another time and place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate
---------------
of Incorporation every stockholder of record shall be entitled at every meeting
of stockholders to one vote for each share of capital stock standing in his name
on the record of stockholders determined in accordance with Section 2.5 of the
By-laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
Sections 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in treating
the persons in whose names shares of capital stock stand on the record of
stockholders as owners thereof for all purposes. At any meeting of stockholders
(at which a quorum was present to
<PAGE>
5
organize the meeting), all matters, except as otherwise provided by law or by
the Certificate of Incorporation or by the By-laws, shall be decided by a
majority of the votes cast at such meeting by the holders of shares present in
person or represented by proxy and entitled to vote thereon, whether or not a
quorum is present when the vote is taken. All elections of directors shall be
by written ballot unless otherwise provided in the Certificate of Incorporation.
In voting on any other question on which a vote by ballot is required by law or
is demanded by any stockholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the stockholder voting or by his proxy, and shall
state the number of shares voted. On all other questions, the voting may by
viva voce. Every stockholder entitled to vote at a meeting of stockholders or
- ---------
to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for him by proxy. The validity
and enforceability of any proxy shall be determined in accordance with Section
212 of the General Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Stockholders.
--------------------------------------------------------------
The Board, in advance of any meeting of stockholders, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at such meeting may, and on the request
of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. In case any person appointed fails to appear or act, the vacancy
may be filled by appointment made by the Board in advance of the meeting or at
the meeting by the person presiding thereat. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspector or inspectors shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the person presiding at the meeting or any
stockholder entitled to vote thereat, the inspector or inspectors shall make a
report in writing of any challenge, question or matter determined by him or them
and execute a certificate of any fact found by him or them. Any report or
certificate made by the inspector or inspectors shall be prima facie evidence of
the facts stated and of the vote as certified by him or them.
2.12 Organization. At every meeting of stockholders, the Chairman of
------------
the Board, or in the absence of the Chairman, the President, or in the absence
of the President a Vice President, and in case more than one Vice President
shall be present, that
<PAGE>
6
Vice President designated by the Board (or in the absence of any such
designation, the most senior Vice President, based on age, present), shall act
as chairman of the meeting. The Secretary, or in his absence one of the
Assistant Secretaries, shall act as secretary of the meeting. In case none of
the officers above designated to act as chairman or secretary of the meeting,
respectively, shall be present, a chairman or a secretary of the meeting, as the
case may be, shall be chosen by a majority of the votes cast at such meeting by
the holders of shares of capital stock present in person or represented by proxy
and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
-----------------
stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless
-------------------------------------------------
otherwise provided in the Certificate of Incorporation, any action required by
the General Corporation Law to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without
a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
---------
3.1 General Powers. Except as otherwise provided in the Certificate
--------------
of Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the By-
laws or applicable laws, as it may deem proper for the conduct of its meetings
and the management of the Corporation.
In addition to the powers expressly conferred by the By-laws, the Board may
exercise all powers and perform all acts which are not required, by the By-laws
or the Certificate of Incorporation or by law, to be exercised and performed by
the stockholders.
<PAGE>
7
3.2 Number; Qualification; Term of Office. The Board shall consist
-------------------------------------
of two to fifteen members. The total number of directors shall be fixed
initially by the incorporator and may thereafter be changed from time to time by
action of the stockholders or by action of the Board. Directors need not be
stockholders. Each director shall hold office until his successor is elected
and qualified or until his earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law
--------
or by the Certificate of Incorporation, be elected by a plurality of the votes
cast at a meeting of stockholders by the holders of shares entitled to vote in
the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise
-----------------------------------------
provided in the Certificate of Incorporation, newly created directorships
resulting from an increase in the number of directors and vacancies occurring in
the Board for any other reason, including the removal of directors without
cause, may be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, or may be elected
by a plurality of the votes cast by the holders of shares of capital stock
entitled to vote in the election at a special meeting of stockholders called for
that purpose. A director elected to fill a vacancy shall be elected to hold
office until his successor is elected and qualified, or until his earlier death,
resignation or removal.
3.5 Resignations. Any director may resign at any time by written
------------
notice to the Corporation. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section
--------------------
141(k) of the General Corporation Law, any or all of the directors may be
removed with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
3.7 Compensation. Each director, in consideration of his service as
------------
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance as directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing contained in this
section shall preclude any
<PAGE>
8
director from serving the Corporation or its subsidiaries in any other capacity
and receiving proper compensation therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board,
---------------------------------------
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the
---------------
annual meeting of stockholders for the election of directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at
----------------
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
3.11 Special Meetings. Special meetings of the Board shall be held
----------------
whenever called by the President or the Secretary or by any two or more
directors. Notice of each special meeting of the Board shall, if mailed, be
addressed to each director at the address designated by him for that purpose or,
if none is designated, at his last known address at least two days before the
date on which the meeting is to be held; or such notice shall be sent to each
director at such address by telegraph, cable or wireless, or be delivered to him
personally, not later than the day before the date on which such meeting is to
be held. Every such notice shall state the time and place of the meeting but
need not state the purposes of the meeting, except to the extent required by
law. If mailed, each notice shall be deemed given when deposited, with postage
thereon prepaid, in a post office or official depository under the exclusive
care and custody of the United States post office department. Such mailing shall
be by first class mail .
3.12 Adjourned Meetings. A majority of the directors present at any
------------------
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given by any director whether or
<PAGE>
9
not present at the time of the adjournment. Any business may be transacted at
any adjourned meeting that might have been transacted at the meeting as
originally called.
3.13 Waiver of Notice. Whenever notice is required to be given to
----------------
any director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or By-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice.
3.14 Organization. At each meeting of the Board, the Chairman of the
------------
Board, or in the absence of the Chairman, the President of the Corporation, or
in the absence of the President, a chairman chosen by a majority of the
directors present, shall preside. The Secretary shall act as secretary at each
meeting of the Board. In case the Secretary shall be absent from any meeting of
the Board, an Assistant Secretary shall perform the duties of secretary at such
meeting; and in the absence from any such meeting of the Secretary and Assistant
Secretaries, the person presiding at the meeting may appoint any person to act
as secretary of the meeting.
3.15 Quorum of Directors. One-third of the total number of directors
-------------------
shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board.
3.16 Action by the Board. All corporate action taken by the Board or
-------------------
any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
Section 3.16 shall constitute presence in person at such meeting. Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar
<PAGE>
10
communications equipment) at the time of the vote, if a quorum is present at
such time, shall be the act of the Board.
ARTICLE 4
COMMITTEES OF THE BOARD
-----------------------
The Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporations's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-laws of the Corporation; and, unless the resolution
designating it expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
ARTICLE 5
OFFICERS
--------
5.1 Officers. The Board shall elect a Chairman of the Board, a
--------
President, a Secretary and a Treasurer, and may elect or appoint one or more
Vice Presidents and such other officers as it may determine. The Board may
designate one or more Vice Presidents as Executive Vice Presidents, and may use
descriptive words or phrases to designate the standing, seniority or area of
special competence of the Vice Presidents elected or appointed by it. Each
officer shall hold his office until his successor is elected and qualified or
until his earlier death, resignation or removal in the manner provided in
Section 5.2 of the By-laws. Any two or more offices may be held by the same
person. The Board may require any officer to give a bond or other security for
the faithful performance of his duties, in such amount and with such sureties as
the Board may determine. All officers as between themselves and the Corporation
shall have such authority
<PAGE>
11
and perform such duties in the management of the Corporation as may be provided
in the By-laws or as the Board may from time to time determine.
5.2 Removal of Officers. Any officer elected or appointed by the
-------------------
Board may be removed by the Board with or without cause. The removal of an
officer without cause shall be without prejudice to his contract rights, if any.
The election or appointment of an officer shall not of itself create contract
rights.
5.3 Resignations. Any officer may resign at any time by so notifying
------------
the Board or the President or the Secretary in writing. Such resignation shall
take effect at the date of receipt of such notice or at such later time as is
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if
any.
5.4 Vacancies. A vacancy in any office because of death,
---------
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed in the By-laws for
the regular election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may
------------
be fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
director.
5.6 Chairman of the Board. The Chairman of the Board shall preside
---------------------
at all meetings of the stockholders and of the Board of Directors. He shall
have such other powers and perform such other duties as are provided in these
By-laws and as may be prescribed from time to time by the Board of Directors.
In the absence or in the case of the death or disability of the President, the
Chairman of the Board shall have and exercise all the powers of the President.
5.7 President. The President shall be the chief executive officer of
---------
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of directors. The President shall, if present, preside at
all meetings of the stockholders and at all meetings of the Board. He may, with
the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer, sign certificates for shares of capital stock of the Corporation. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed
<PAGE>
12
or executed; and, in general, he shall perform all duties incident to the office
of President and such other duties as from time to time may be assigned to him
by the Board.
5.8 Vice President. At the request of the President, or, in his
--------------
absence and in the absence of the Chairman of the Board, at the request of the
Board, the Vice Presidents shall (in such order as may be designated by the
Board or, in the absence of any such designation, in order of seniority based on
age) perform all of the duties of the President and so acting shall have all the
powers of and be subject to all restrictions upon the President. Any Vice
President may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board or by the By-laws to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or executed; and
shall perform such other duties as from time to time may be assigned to him by
the Board or by the President.
5.9 Secretary. The Secretary, if present, shall act as secretary of
---------
all meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation; he shall be custodian of the seal of
the Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and all
documents the execution of which on behalf of the Corporation under its
corporate seal is authorized in accordance with the provisions of the By-laws;
he shall have charge of the stock ledger and also of the other books, records
and papers of the Corporation relating to its organization and management as a
Corporation, and shall see that the reports, statements and other documents
required by law are properly kept and filed; and shall, in general, perform all
the duties incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the Board or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody of, and
---------
be responsible for, all funds, securities and notes of the Corporation; receive
and give receipt for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositaries of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the By-
laws, and
<PAGE>
13
be responsible for the accuracy of the amounts of all moneys so disbursed;
regularly enter or cause to be entered in books to be kept by him or under his
direction full and adequate account of all moneys received or paid by him for
the account of the Corporation; have the right to require, from time to time,
reports or statements giving such information as he may desire with respect to
any and all financial transactions of the Corporation from the officers or
agents transacting the same; render to the President or the Board, whenever the
President or the Board, respectively, shall require him so to do, an account of
the financial condition of the Corporation and of all his transactions as
Treasurer; exhibit at all reasonable times his books of account and other
records to any of the directors upon application at the office of the
Corporation where such books and records are kept; and, in general, perform all
the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
----------------------------------------------
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer,
----------------------
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute and satisfy any instrument, and any such authority may
be general or confined to specific instances, or otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
-----
authorized by the By-laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
so to do, may pledge and hypothecate or transfer any securities or other
property of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to specific
instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
--------------------
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of
<PAGE>
14
the Corporation shall be signed on behalf of the Corporation in such manner as
shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
--------
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositaries as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of
--------------------------------
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, and may be sealed with the seal of the Corporation or
a facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles, if the certificate is countersigned by a transfer agent or registrar
other than the Corporation itself or its employee. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may, unless
otherwise ordered by the Board, be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the
date of issue.
7.2 Transfer of Shares. Transfer of shares of capital stock of the
------------------
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be deemed the owner thereof to receive dividends, to vote as
such owner and for all other purposes as respects the Corporation. No transfer
of shares of capital stock shall be valid as against the Corporation, its
stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
such transfer
<PAGE>
15
shall have been entered on the books of the Corporation by an entry showing from
and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
----------------------------
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder
--------------------------------------------------
of any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnify the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Regulations. The Board may make such rules and regulations as it
-----------
may deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
--------------------------------
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number of stockholders
or among such stockholders and the Corporation. No restriction so imposed shall
be binding with respect to capital stock issued prior to the adoption of the
restriction
<PAGE>
16
unless the holders of such capital stock are parties to an agreement or voted in
favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the
------------------------
Certificate of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other distributions
on the outstanding shares of capital stock in such amounts and at such time
or times as, in its discretion, the condition of the affairs of the
Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus
of the Corporation in purchasing or acquiring any shares of capital stock
of the Corporation, or purchase warrants therefor, in accordance with law,
or any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness;
7.7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper, as a
reserve fund to meet contingencies, or for equalizing dividends or for the
purpose of maintaining or increasing the property or business of the
Corporation, or for any purpose it may think conducive to the best
interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnification of Officers and Directors. The Corporation shall
-----------------------------------------
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was a director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director or officer of another Corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding to the fullest extent and in the manner set forth in and permitted by
the General Corporation Law, and any other applicable law, as from time to time
in effect. Such right of indemnification shall not be deemed exclusive of any
other rights to which such director or officer may be entitled apart from the
foregoing provisions. The foregoing provisions of this Section 8.1 shall be
deemed to be a contract between the Corporation and each director and officer
who serves in such capacity at any time while this Article 8 and the relevant
provisions of the General Corporation Law and other applicable law, if any, are
in effect, and any repeal or modification
<PAGE>
17
thereof shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
8.2 Indemnification of Other Persons. The Corporation may indemnify
--------------------------------
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he is or
was an employee or agent of the Corporation, or is or was serving at the request
of the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to the extent
and in the manner set forth in and permitted by the General Corporation Law, and
any other applicable law, as from time to time in effect. Such right of
indemnification shall not be deemed exclusive of any other rights to which any
such person may be entitled apart from the foregoing provisions.
8.3 Insurance. The Corporation shall have power to purchase and
---------
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of Sections 8.1 and
8.2 of the By-laws or under Section 145 of the General Corporation Law or any
other provision of law.
ARTICLE 9
BOOKS AND RECORDS
-----------------
9.1 Books and Records. The Corporation shall keep correct and
-----------------
complete books and records of account and shall keep minutes of the proceedings
of the stockholders, the Board and any committee of the Board. The Corporation
shall keep at the office designated in the Certificate of Incorporation or at
the office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
9.2 Form of Records. Any records maintained by the Corporation in
---------------
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on,
<PAGE>
18
or be in the form of, punch cards, magnetic tape, photographs, microphotographs,
or any other information storage device, provided that the records so kept can
be converted into clearly legible written form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by
-------------------------------
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
inspection of the stockholders.
ARTICLE 10
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word
"Delaware."
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by resolution of the Board, the President or
any Vice President may, from time to time, appoint one or more attorneys or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as a stockholder or
otherwise in any other corporation, any of whose shares or securities may be
held by the Corporation, at meetings of the holders of stock or other securities
of such other corporation, or to consent in writing to any action by any such
other corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President or any Vice
President may attend any meeting of the holders of the stock or other securities
of any such other corporation and thereat vote or exercise any or all other
powers of the Corporation as the holder of such stock or other securities of
such other corporation.
<PAGE>
19
ARTICLE 13
AMENDMENTS
----------
The By-laws may be altered, amended, supplemented or repealed, or new
By-laws may be adopted, by vote of the holders of the shares entitled to vote in
the election of directors. The By-laws may be altered, amended, supplemented or
repealed, or new By-laws may be adopted, by the Board. Any By-laws adopted,
altered, amended, or supplemented by the Board may be altered, amended, or
supplemented or repealed by the stockholders entitled to vote thereon.
<PAGE>
EXHIBIT 3.35
RESTATED CERTIFICATE OF INCORPORATION
OF
GOLD FIELDS MINING CORPORATION
Pursuant to Sections 242 and 245
of the General Corporation Law
of the State of Delaware
GOLD FIELDS MINING CORPORATION, a corporation duly organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation") and originally incorporated in the State of Delaware on August
26, 1926 under the name Tri-State Zinc, Inc., does hereby certify as follows:
FIRST: That the Certificate of Incorporation of the Corporation was
-----
filed in the office of the Secretary of State on the 26th day of August, 1926.
SECOND: That the Certificate of Incorporation, as amended, is further
------
amended and restated to read in its entirety as follows:
"ARTICLE I
NAME
The name of the Corporation is GOLD FIELDS MINING CORPORATION.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at such address is The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "GCL").
<PAGE>
2
ARTICLE IV
CAPITAL STOCK
The total number of shares which the Corporation shall have authority
to issue is 100 shares of Common Stock, without nominal or par value.
ARTICLE V
BY-LAWS
The Board of Directors is expressly authorized to adopt, amend, or
repeal the by-laws of the Corporation.
ARTICLE VI
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the by-
laws of the Corporation shall otherwise provide.
ARTICLE VII
INDEMNIFICATION
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing shall not eliminate or
-------- -------
limit the liability of a director (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve fraud or intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
GCL is hereafter amended to permit further elimination or limitation of the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the GCL as so amended. Any repeal or modification of this Article SEVENTH by the
stockholders of the Corporation or otherwise shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
<PAGE>
3
ARTICLE VIII
COMPROMISE WITH CREDITORS
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which said application has been made, be
binding on all the creditors or class of creditors, and/or on all of the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
Subject to shareholder approval, the Corporation reserves the right to
amend, alter, change, or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute."
THIRD: This Restated Certificate of Incorporation has been duly
-----
adopted by unanimous written consent of the stockholders in accordance with the
applicable provisions of Section 228, 242 and 245 of the General Corporation Law
of the State of Delaware and with the provisions of the Corporation's
Certificate of Incorporation and By-laws.
<PAGE>
4
IN WITNESS WHEREOF, GOLD FIELDS MINING CORPORATION has caused this
certificate to be signed on its behalf by William C. Bleimeister, its President,
and attested to by Stephen E. Flechner, its Secretary, this 22nd day of March,
1991.
GOLD FIELDS MINING CORPORATION
By: /s/ William C. Bleimeister
-----------------------------
William C. Bleimeister,
President
ATTEST:
/s/ Stephen E. Flechner
- --------------------------------
Stephen E. Flechner, Secretary
<PAGE>
EXHIBIT 3.36
BY-LAWS
OF
GOLD FIELDS MINING CORPORATION
(A Delaware Corporation)
________________________
ARTICLE 1
DEFINITIONS
-----------
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as
amended from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from
time to time.
1.6 "Corporation" means Gold Fields Mining Corporation.
1.7 "Directors" means directors of the Corporation.
1.8 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
<PAGE>
2
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law
and Section 3.2 of the By-Laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number or directors of the
Corporation.
ARTICLE 2
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of stockholders shall be held
-----------------
at the office of the Corporation or at such other place within or without the
State of Delaware as shall be specified or fixed in the notice of such meeting
or in the waiver of notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually
--------------
for the election of directors and the transaction of other business at 10:00
a.m. on the first Tuesday in October.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
------------------------------------------------
meeting of stockholders for the election of directors and the transaction of
other business is not held within the months specified in Section 2.2, the Board
shall call a meeting of stockholders for the election of directors and the
transaction of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other
----------------------
than a special meeting for the election of directors), unless otherwise
prescribed by statute, may be called at any time by the Board or by the
President or by the Secretary. At any special meeting of stockholders only such
business may be transacted as is related to the purpose or purposes of such
meeting set forth in the notice thereof given pursuant to Section of the By-laws
or in any waiver of notice thereof given pursuant to Section 2.7 of the By-laws.
2.5 Fixing Record Date. For the purpose of determining the
------------------
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in
<PAGE>
3
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board may fix, in advance, a date as the record
date for any such determination of stockholders. Such date shall not be more
than sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. If no such record date is fixed:
2.5.1 The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held;
2.5.2 The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which the first
written consent is expressed;
2.5.3 The record date for determining stockholders for any
purpose other than those specified in Sections 2.5.1 and 2.5.2 shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided
----------------------------------
in Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation
Law or the Certificate of Incorporation or the By-laws, stockholders are
required or permitted to take any action at a meeting, written notice shall be
given stating the place, date and hour or the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. A
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten nor more than sixty days before the date of the meeting, to each
stockholder entitled to notice of or to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
with postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation. An affidavit of the Secretary or an
Assistant Secretary or of the transfer agent of the Corporation that the notice
required by this section has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the
<PAGE>
4
adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted at the meeting as originally called.
If, however, the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.7 Waivers of Notice. Whenever notice is required to be given to
-----------------
any stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the By-laws, a written waiver thereof, signed by
the stockholder entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or
--------------------
cause to be prepared and made, at least ten days before every meeting or
stockholders, a complete list of he stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
2.9 Quorum of Stockholders; Adjournment. The holders of one-third of
-----------------------------------
the shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a majority of the shares of stock present in
person or represented by proxy at any meeting of stockholders, including an
adjourned meeting, whether or not a quorum is present, may adjourn such meeting
to another time and place.
2.10 Voting; Proxies. Unless otherwise provided in he Certificate of
---------------
Incorporation every stockholder of record shall be
<PAGE>
5
entitled at every meeting of stockholders to one vote for each share of capital
stock standing in his name on the record of stockholders determined in
accordance with Section 2.5 of the By-laws. If the Certificate of Incorporation
provides for more or less than one vote for any share, on any matter, every
reference in the By-laws or the General Corporation Law to a majority or other
proportion of stock shall refer to such majority or other proportion of the
votes of such stock. The provisions of Sections 212 and 217 of the General
Corporation Law shall apply in determining whether any shares of capital stock
may be voted and the persons, if any, entitled to vote such shares; but the
Corporation shall be protected in treating the persons in whose names shares of
capital stock stand on the record of stockholders as owners thereof for all
purposes. At any meeting of stockholders (at which a quorum was present to
organize the meeting), all matters, except as otherwise provided by law or by
the Certificate of Incorporation or by the By-laws, shall be decided by a
majority of the votes cast at such meeting by the holders of shares present in
person or represented by proxy and entitled to vote thereon, whether or not a
quorum is present when the vote is taken. All elections of directors shall be
by written ballot unless otherwise provided in the Certificate of Incorporation.
In voting on any other question on which a vote by ballot is required by law or
is demanded by any stockholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the stockholder voting or by his proxy, and shall
state the number of shares voted. On all other questions, the voting may be
viva voce. Every stockholder entitled to vote at a meeting of stockholders or
- ---- ----
to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act far him by proxy. The validity
and enforceability of any proxy shall be determined in accordance with Section
212 of the General Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Stockholders.
--------------------------------------------------------------
The Board, in advance of any meeting of stockholders, may appoint one or mare
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at such meeting may, and on the request
of any stockholder entitled to vote thereat shall, appoint one or mare
inspectors. In case any person appointed fails to appear or act, the vacancy
may be filled by appointment made by the Board in advance of the meeting or at
the meeting by the person presiding thereat. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspector or inspectors shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate
<PAGE>
6
all votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting or any stockholder entitled to
vote thereat, the inspector or inspectors shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them. Any report or certificate made by
the inspector or inspectors shall be prima facie evidence of the facts stated
and of the vote as certified by him or them.
2.12 Organization. At every meeting of stockholders, the Chairman of
------------
the Board, or in the absence of the Chairman, the President, or in the absence
of the President a Vice President, and in case more than one Vice President
shall be present, that Vice President designated by the Board (or in the absence
of any such designation, the most senior Vice President, based on age, present),
shall act as chairman of the meeting. The Secretary, or in his absence one of
the Assistant Secretaries, shall act as secretary of the meeting. In case none
of the officers above designated to act as chairman or secretary of the meeting,
respectively, shall be present, a chairman or a secretary of the meeting, as the
case may be, shall be chosen by a majority of the votes cast at such meeting by
the holders of shares of capital stock present in person or represented by proxy
and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
-----------------
stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless
-------------------------------------------------
otherwise provided in the Certificate of Incorporation, any action required by
the General Corporation Law to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without
a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
<PAGE>
7
ARTICLE 3
DIRECTORS
---------
3.1 General Powers. Except as otherwise provided in the Certificate
--------------
of Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
Bylaws or applicable laws, as it may deem proper for the conduct of its meetings
and the management of the Corporation. In addition to the powers expressly
conferred by the By-laws, the Board may exercise all powers and perform all acts
which are not required, by the By-laws or the Certificate of Incorporation or by
law, to be exercised and performed by the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist
-------------------------------------
of three to fifteen members. The total number of directors shall be fixed
initially by the incorporator and may thereafter be changed from time to time by
action of the stockholders or by action of the Board. Directors need not be
stockholders. Each director shall hold office until his successor is elected
and qualified or until his earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law
--------
or by the Certificate of Incorporation, be elected by a plurality of the votes
cast at a meeting of stockholders by the holders of shares entitled to vote in
the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise
-----------------------------------------
provided in the Certificate of Incorporation, newly created directorships
resulting from an increase in the number of directors and vacancies occurring in
the Board for any other reason, including the removal of directors without
cause, may be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, or may be elected
by a plurality of the votes cast by the holders of shares of capital stock
entitled to vote in the election at a special meeting of stockholders called for
that purpose. A director elected to fill a vacancy shall be elected to hold
office until his successor is elected and qualified, or until his earlier death,
resignation or removal.
3.5 Resignations. Any director may resign at any
------------
time by written notice to the Corporation. Such resignation shall take effect
at the time therein specified, and, unless otherwise specified, the acceptance
of such resignation shall not be necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section
--------------------
141(k) of the General Corporation Law, any or all of the directors may be
removed with or without cause, by the
<PAGE>
8
holders of a majority of the shares then entitled to vote at an election of
directors.
3.7 Compensation. Each director, in consideration of his service as
------------
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing contained in this
section shall preclude any director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board,
---------------------------------------
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the
---------------
annual meeting of stockholders for the election of directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at
----------------
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
3.11 Special Meetings. Special meetings of the Board shall be held
----------------
whenever called by the President or the Secretary or by any two or more
directors. Notice of each special meeting of the Board shall, if mailed, be
addressed to each director at the address designated by him for that purpose or,
if none is designated, at his last known address at least two days before the
date on which the meeting is to be held; or such notice shall
<PAGE>
9
be sent to each director at such address by telegraph, cable or wireless, or be
delivered to him personally, not later than the day before the date on which
such meeting is to be held. Every such notice shall state the time and place of
the meeting but need not state the purposes of the meeting, except to the extent
required by law. If mailed, each notice shall be deemed given when deposited,
with postage thereon prepaid, in a post office or official depository under the
exclusive care and custody of the United States post office department. Such
mailing shall be by first class mail.
3.12 Adjourned Meetings. A majority of the directors present at any
------------------
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be transacted at any
adjourned meeting that might have been transacted at the meeting as originally
called.
3.13 Waiver of Notice. Whenever notice is required to be given to
----------------
any director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or By-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice.
3.14 Organization. At each meeting of the Board, the Chairman of the
------------
Board, or in the absence of the Chairman, the President of the Corporation, or
in the absence of the President, a chairman chosen by a majority of the
directors present, shall preside. The Secretary shall act as secretary at each
meeting of the Board. In case the Secretary shall be absent from any meeting of
the Board, an Assistant Secretary shall perform the duties of secretary at such
meeting; and in the absence from any such meeting of the Secretary and Assistant
Secretaries, the person presiding at the meeting may appoint any person to act
as secretary of the meeting.
3.15 Quorum of Directors. One-third of the total number of directors
-------------------
shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board.
3.16 Action by the Board. All corporate action taken by the Board or
-------------------
any committee thereof shall be taken at a meeting
<PAGE>
10
of the Board, or of such committee, as the case may be, except that any action
required or permitted to be taken at any meeting of the Board, or any committee
thereof, may be taken without a meeting if all members of the Board or
Committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Members of the Board, or ny committee designated by the Board, may participate
in a meeting of the Board, or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.16 shall constitute presence in person at
such meeting. Except as otherwise provided by the Certificate of Incorporation
or by law, the vote of a majority of the directors present (including those who
participate by means of conference telephone or similar communications
equipment) at the time of the vote, if a quorum is present at such time, shall
be the act of the Board.
ARTICLE 4
COMMITTEES OF THE BOARD
-----------------------
The Board may, by re solution passed by a majority of the whole Board,
designate one or more committees, each Committee to consist of one or more of
the directors of the corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
real of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to tine
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-laws of the Corporation; and, unless the resolution
designating it expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
<PAGE>
11
ARTICLE 5
OFFICERS
--------
5.1 Officers. The Board shall elect a Chairman of the Board, a
--------
President, a Secretary and a Treasurer, and may elect or appoint one or more
Vice Presidents and such other officers as it may determine. The Board may
designate one or more Vice Presidents as Executive Vice Presidents, and may use
descriptive words or phrases to designate the standing, seniority or area of
special competence of the Vice Presidents elected or appointed by it. Each
officer shall hold his office until his successor is elected and qualified or
until his earlier death, resignation or removal in the manner provided in
Section 5.2 of the By-laws. Any two or more offices may be held by the same
person. The Board may require any officer to give a bond or other security for
the faithful performance of his duties, in such amount and with such sureties as
the Board may determine. All officers as between themselves and the Corporation
shall have such authority and perform such duties in the management of the
Corporation as may be provided in the By-laws or as the Board may from time to
time determine.
5.2 Removal of Officers. Any officer elected or appointed by the
-------------------
Board may be removed by the Board with or without cause. The removal of an
officer without cause shall be without prejudice to his contract rights, if any.
The election or appointment of an officer shall not of itself create contract
rights.
5.3 Resignations. Any officer may resign at any time by so notifying
------------
the Board or the President or the Secretary in writing. Such resignation shall
take effect at the date of receipt of such notice or at such later time as is
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if
any.
5.4 Vacancies. A vacancy in any office because of death,
---------
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed in the By-laws for
the regular election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may
------------
be fixed from time to timely the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
director.
5.6 Chairman of the Board. The Chairman of the Board shall preside
---------------------
at all meetings of the stockholders and of the Board of Directors. He shall
have such other powers and perform such other duties as are provided in these
By-laws and as may be
<PAGE>
12
prescribed from time to time by the Board of Directors. In the absence or in
the case of the death or disability of the President, the Chairman of the Board
shall have and exercise all the powers of the President.
5.7 President. The President shall be the chief executive officer of
---------
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of directors. The President shall, if present, preside at
all meetings of the stockholders and at all meetings of the Board. He may, with
the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer, sign certificates for shares of capital stock of the Corporation. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed; and, in general, he shall perform all duties incident
to the office of President and such other duties as from time to time may be
assigned to him by the Board.
5.8 Vice-Presidents. At the request of the President, or, in his
---------------
absence and in the absence of the Chairman of the Board, at the request of the
Board, the Vice Presidents shall (in such order as may be designated by the
Board or, in the absence of any such designation, in order of seniority based on
age) perform all of the duties of the President and so acting shall have all the
powers of and be subject to all restrictions upon the President. Any Vice
President may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board or by the By-laws to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or executed; and
shall perform such other duties as from time to time may be assigned to him by
the Board or by the President.
5.9 Secretary. The Secretary, if present, shall act as secretary of
---------
all meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation; he shall be custodian of the seal of
the Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and all
documents the execution of which on behalf of the Corporation under its
corporate seal is authorized in accordance with the
<PAGE>
13
provisions of the By-laws; he shall have charge of the stock ledger and also of
the other book, records and papers of the Corporation relating to its
organization and management as a Corporation, and shall see that the reports,
statements and other documents required by law are properly kept and filed; and
shall, in general, perform all the duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him by the Board
or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody of, and
---------
be responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositaries of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the By-
laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation; have the right to require, from time to
time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board, respectively, shall require him so to do,
an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors upon application at the office of the
Corporation where such books and records are kept; and, in general, perform all
the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
----------------------------------------------
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer,
----------------------
employee or agent, in the name and on behalf of the
<PAGE>
14
Corporation, to enter into any contract or execute and satisfy any instrument,
and any such authority may be general or confined to specific instances, or
otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
-----
authorized by the By-Laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
so to do, may pledge and hypothecate or transfer any securities or other
property of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to specific
instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
--------------------
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
--------
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositaries as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of
--------------------------------
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, and may be sealed with the seal of the Corporation or
a facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles, if the certificate is countersigned by a transfer agent or registrar
other than the Corporation itself or its employee. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may, unless
otherwise ordered by the Board, be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the
date of issue.
<PAGE>
15
7.2 Transfer of Shares. Transfers of shares of capital stock of the
------------------
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be deemed the owner thereof to receive dividends, to vote as
such owner and for all other purposes as respects the Corporation. No transfer
of shares of capital stock shall be valid as against the Corporation, its
stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
such transfer shall have been entered on the books of the Corporation by an
entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
----------------------------
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder
--------------------------------------------------
of any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnify the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
the continued existence of any such certificate so-alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Regulations. The Board may make such rules and regulations as it
-----------
may deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration or certificates
representing shares of its capital stock.
<PAGE>
16
successor or transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like responsibility for the
person or estate of the holder. Unless noted conspicuously on the certificate
representing such capital stock, a restriction, even though permitted by Section
202 of the General Corporation Law, shall be ineffective except against a person
with actual knowledge of the restriction. A restriction on the transfer or
registration of transfer of capital stock of the Corporation may be imposed
either by the Certificate of Incorporation or by an agreement among any number
of stockholders or among such stockholders and the Corporation. No restriction
so imposed shall be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital stock are parties
to an agreement or voted in favor of the restriction.
7.6 Dividends, Surplus, Etc. Subject to the provisions of the
------------------------
Certificate of Incorporation and of law, the Board:
7.6.1 May declare and cay dividends or make other distributions
on the outstanding shares of capital stock in such amounts and at such
time or times as, in its discretion, the condition of the affairs of
the Corporation shall render advisable;
7.6.2 May use and apply, in its discretion, any of the surplus
of the Corporation in purchasing or acquiring any shares of capital
stock of the Corporation, or purchase warrants therefor, in accordance
with law, or any of its bonds, debentures, notes, scrip or other
securities or evidences of indebtedness;
7.6.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper,
as a reserve fund to meet contingencies, or for equalizing dividends
or for the purpose of maintaining or increasing the property or
business of the Corporation, or for any purpose it may think conducive
to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnification of Officers and Directors. The Corporation shall
-----------------------------------------
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was a director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director or
<PAGE>
17
officer of another Corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding to the fullest extent and in the manner set
forth in and permitted by the General Corporation Law, and any other applicable
law, as from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which such director or officer may be
entitled apart from the foregoing provisions. The foregoing provisions of this
Section 8.1 shall be deemed to be a contract between the Corporation and each
director and officer who serves in such capacity at any time while this Article
8 and the relevant provisions of the General Corporation Law and other
applicable law, if any, are in effect, and any repeal or modification thereof
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
8.2 Indemnification of Other Persons. The Corporation may indemnify
--------------------------------
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he is or
was an employee or agent of the Corporation, or is or was serving at the request
of the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to the extent
and in the manner set forth in and permitted by the General Corporation Law, and
any other applicable law, as from time to time in effect. Such right of
indemnification shall not be deemed exclusive of any other rights to which any
such person may be entitled apart from the foregoing provisions.
8.3 Insurance. The Corporation shall have power to purchase and
---------
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of Sections 8.1 and
8.2 of the By-laws or under Section 145 of the General Corporation Law or any
other provision of law.
ARTICLE 9
<PAGE>
18
BOOKS AND RECORDS
-----------------
9.1 Books and Records. The Corporation shall keep correct and
-----------------
complete books and records of account and shall keep minutes of the proceedings
of the stockholders, the Board and any committee of the Board. The Corporation
shall keep at the office designated in the Certificate of Incorporation or at
the office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
9.2 Form of Records. Any records maintained by he Corporation in the
---------------
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs, or any other information storage device,
provided that the records so kept can be converted into clearly legible written
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
9.3 Inspection-of Books and Records. Except as otherwise provided by
-------------------------------
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
inspection of the stockholders.
ARTICLE 10
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word "Delaware."
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
---------------------
<PAGE>
19
Unless otherwise provided by resolution of the Board, the President or
any Vice President may, from to time, appoint one or more attorneys or agents of
the Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a stockholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of stock or other securities of such
other corporation, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President or any Vice
President may attend any meeting of the holders of the stock or other securities
of any such other corporation and thereat vote or exercise any or all other
powers of the Corporation as the holder of such stock or other securities of
such other corporation.
ARTICLE 13
AMENDMENTS
----------
The By-laws may be altered, amended, supplemented or repealed, or new
By-laws may be adopted, by vote of the holders of the shares entitled to vote in
the election of directors. The By-laws may be altered, amended, supplemented or
repealed, or new By-laws may be adopted, by the Board. Any By-laws adopted,
altered, amended, or supplemented by the Board may be altered, amended, or
supplemented or repealed by the stockholders entitled to vote thereon.
<PAGE>
EXHIBIT 3.37
CERTIFICATE OF INCORPORATION
OF
EAST TENNESSEE COAL COMPANY
1. The name of the corporation is:
EAST TENNESSEE COAL COMPANY
2. The address of its registered office in the State of Delaware is
100 West Tenth Street in the City of Wilmington, county of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number o shares of stock which the corporation shall
have authority to issue is One Thousand (1,000) and the par value of each of
such shares is One Dollar ($1.00) amounting to the aggregate to One Thousand
Dollars ($1,000.00)
5. The board of directors is authorized to make, alter or repeal the
by-laws of the corporation. Election of Directors need not be by ballot.
6. The name and mailing address of the incorporator is:
W.J. Reif
100 West Tenth Street
Wilmington, Delaware 19801
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forging a corporation pursuant to the General Corporation Law of
Delaware, to make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 24th day of February 1978.
/s/ W.J. Reif
-------------------------------
W.J. Reif
<PAGE>
CERTIFICATE OF AMENDMENT
------------------------
OF
--
CERTIFICATE OF INCORPORATION
----------------------------
OF
--
EAST TENNESSEE COAL COMPANY
---------------------------
EAST TENNESSEE COAL COMPANY, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the
unanimous written consent of its members, filed with the minutes of the board,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation and said corporation:
RESOLVED, that the Certificate of Incorporation of Exploraciones
y Minerales sierra Morena S.A., be amended by changing the Article
First thereof so that, as amended, said Article shall be and read as
follows:
*1. The name of the corporation is
GOLD FIELDS OPERATING CO. - ORTIZ".
SECOND: That is lieu of a meeting and a vote of stockholders, the
stockholders have give unanimous written consent to said amendment in accordance
with the provisions of Section 228 of the General Corporation Law of the State
of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
<PAGE>
2
IN WITNESS WHEREOF, said EAST TENNESSEE COAL COMPANY has caused this
certificate to be signed by Robert L. Burbanell, its President, and attested by
Stephen E. Flechner, its Secretary, this 26th day of December, 1979.
EAST TENNESSEE COAL COMPANY
By /s/ Robert L. Burbanell
-------------------------------
President
ATTEST:
By /s/ Stephen E. Flechner
---------------------------
Secretary
<PAGE>
EXHIBIT 3.38
BY-LAWS
OF
GOLD FIELDS OPERATING CO. - ORTIZ
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as
amended from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means Gold Fields Operating Co. -Ortiz.
1.7 "Directors" means directors of the Corporation.
1.8 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
<PAGE>
2
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 2 of Article 3 of the By-laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice-President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the
Corporation.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of GOLD
--------------
FIELDS OPERATING CO. - ORTIZ (hereinafter to be called the "Corporation") shall
be held at 11:00 a.m. on the first Tuesday in October. At the annual meeting,
the stockholders shall elect by a plurality vote a board of directors
<PAGE>
3
(hereinafter referred to as the "Board"), and transact such other business as
may properly be brought before the meeting. If the annual meeting shall not be
held on the day hereinabove provided for, the Board shall cause the meeting to
be held as soon thereafter as convenient.
Section 2. Special Meetings. Special meetings of the stockholders (other
----------------
than a special meeting for the election of directors), unless otherwise
prescribed by statute, may be called for any purpose or purposes at any time by
the Board or by the President, or by the Secretary. At any special meeting of
stockholders only such business may be transacted as is related to the purpose
or purposes of such meeting set forth in the notice thereof given pursuant to
Section 4 of this Article or in any waiver of notice thereof given pursuant to
Section 4 of this Article.
Section 3. Fixing Record Date. For the purpose of determining the
------------------
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action, the Board
may fix, in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than sixty nor less
<PAGE>
4
than ten days before the date of such meeting, nor more than sixty days prior to
any action. If no such record date is fixed:
3.1 The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held;
3.2 The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting shall be the day on
which the first written consent is expressed;
3.3 The record date for determining stockholders for any purpose
other than those specified in Sections 3.1 and 3.2 shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
When a determination of stockholders entitled to notice of or to vote
at any meeting of stockholders has been made as provided in this Section 3 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
Section 4. Notice of Meetings. Written notice of the place, date and time
------------------
of the holding of each annual and special meeting of the stockholders and, in
the case of a special meeting, the purpose or purposes thereof, shall be given
personally or by mail in a postage pre-paid envelope to each stockholder
entitled to vote at such meeting, not less than ten
<PAGE>
5
nor more than sixty days before the date of such meeting, and, if mailed, it
shall be directed to such stockholder at his address as it appears on the
records of the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice required by this section has
been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. Notice of any meeting of stockholders shall not be required to
be given to any stockholder who shall attend such meeting in person or by proxy
and shall not, at the beginning of such meeting, object to the transaction of
any business because the meeting is not lawfully called or convened, or who
shall, either before or after the meeting, submit a signed waiver of notice, in
person or by proxy. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice. Unless the Board shall fix after the adjournment a
new record date for an adjourned meeting, notice of such adjourned meeting need
not be given if the time and place to which the meeting shall be adjourned were
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for
<PAGE>
6
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 5. Place of Meetings. Every meeting of the stockholders shall be
-----------------
held at the office of the Corporation or at such other place, within or without
the State of Delaware, as the Board or the officer calling the same shall
specify in the notice of such meeting, or in a duly executed waiver of notice
thereof.
Section 6. Quorum. At all meetings of the stockholders the holders of one
------
third of the shares of stock of the Corporation issued and outstanding and
entitled to vote shall be present in person or by proxy to constitute a quorum
for the transaction of any business. When a quorum is once present to organize
a meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholder. In the absence of a quorum, the holders of a majority of the
shares of stock present in person or by proxy and entitled to vote, or if no
stockholder entitled to vote is present, then any officer of the Corporation may
adjourn the meeting from time to time. At any such adjourned meeting at which a
quorum may be present any business may be transacted which might have been
transacted at the meeting as originally called.
Section 7. Organization. At each meeting of the stockholders, the
------------
Chairman of the Board, or in his absence or inability to act, the President, or
in the absence or inability to act of the Chairman of the Board and the
President, a Vice-
<PAGE>
7
President, and in case more than one Vice-President shall be present, that Vice-
President designated by the Board (or in the absence of any such designation,
the most senior Vice-President, based on age, present), or in the absence of all
of the foregoing, any person chosen by a majority of those stockholders present,
shall act as chairman of the meeting. The Secretary, or, in his absence or
inability to act, the Assistant Secretary or any person appointed by the
chairman of the meeting, shall act as secretary of the meeting and keep the
minutes thereof.
Section 8. Order of Business. The order of business at all meetings of
-----------------
the stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of votes cast at such meeting by the holders of shares
of capital stock present in person or represented by proxy and entitled to vote
at the meeting.
Section 9. Voting. Except as otherwise provided by statute or by the
------
Certificate of Incorporation, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the corporation determined in accordance with
Section 3 of this Article. If the Certificate of Incorporation provides for
more or less than one vote for any share, on any matter, every reference in the
By-laws or the General Corporation Law to a majority or other proportion of
stock shall refer to such majority or other proportion of the votes of such
stock.
<PAGE>
8
The provisions of Sections 212 and 217 of the General Corporation Law shall
apply in determining whether any shares of capital stock may be voted, and the
persons, if any, entitled to vote such shares; but the Corporation shall be
protected in treating the persons in whose names shares of capital stock stand
on the record of stockholders as owners thereof for all purposes. Each
stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for him by a proxy signed by such stockholder
or his attorney-in-fact. Any such proxy shall be delivered to the secretary of
such meeting at or prior to the time designated in the order of business for so
delivering such proxies. No proxy shall be valid after the expiration of three
years from the date thereof, unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the stockholder executing it, except
in those cases where an irrevocable proxy is permitted by law. Except as
otherwise provided by statute, these By-laws, or the Certificate of
Incorporation, any corporate action to be taken by vote of the stockholders
shall be authorized by a majority of the total votes, cast at a meeting of
stockholders by the holders of shares present in person or represented by proxy
and entitled to vote on such action. All elections of directors shall be by
written ballot unless otherwise provided in the Certificate of Incorporation.
In voting on any other question on which a vote by ballot is required by law or
is demanded by any stockholder entitled to vote, the voting shall be by ballot.
On a vote by written ballot, each ballot shall be signed by the stockholder
<PAGE>
9
voting, or by his proxy, if there be such proxy, and shall state the number of
shares voted. On all other questions, the voting may be viva voce. Every
---- ----
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy. The validity and
enforceability of any proxy shall be determined in accordance with Section 212
of the General Corporation Law.
Section 10. List of Stockholders. The Secretary shall prepare and make,
--------------------
or cause to be prepared and made, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meetings, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 11. Inspectors. The Board may, in advance of any meeting of
----------
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall
<PAGE>
10
not be so appointed, the chairman of the meeting may and on the request of any
stockholder entitled to vote thereat shall, appoint one or more inspectors. In
case any person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the meeting by the
chairman of the meeting. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares outstanding
and the voting power of each, the number of shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or votes with fairness to all stockholders. On request of
the chairman of the meeting or any stockholder entitled to vote thereat, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them.
Any report or certificate made by the inspector or inspectors shall be prima
facie evidence of the facts stated and of the vote as certified by him or them.
No director or candidate for the office of director shall act as inspector of an
election of directors. Inspectors need not be stockholders.
<PAGE>
11
Section 12. Consent of Stockholders in Lieu of Meeting. Whenever the vote
------------------------------------------
of stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action, the meeting and vote of stockholders
can be dispensed with without prior notice and without a vote (a) if all of the
stockholders who would have been entitled to vote upon the action if such
meeting were held shall consent in writing to such corporate action being taken,
setting forth the action so taken; or (b) unless the Certificate of
Incorporation provides otherwise, with the written consent of the holders of not
less than the minimum percentage of the total vote required by statute for the
proposed corporate action, and provided that prompt notice must be given to all
stockholders who have not so consented in writing of the taking of such
corporate action without a meeting and by less than unanimous written consent of
stockholders.
ARTICLE 3
BOARD OF DIRECTORS
Section 1. General Powers. The business and affair of the Corporation
--------------
shall be managed by or under the direction of the Board. The Board may adopt
such rules and regulations, not inconsistent with the Certificate of
Incorporation or the By-laws or applicable laws, as it may deem proper for the
conduct of its meetings and the management of the Corporation. The Board may
exercise all such authority and powers of the Corporation and do all such lawful
acts and things as are not by statute or the
<PAGE>
12
Certificate of Incorporation directed or required to be exercised or done by the
stockholders.
Section 2. Number, Qualifications, Election and Term of Office. The Board
---------------------------------------------------
shall consist of three to fifteen members. The total number of directors shall
be fixed initially by the incorporator and may thereafter be changed from time
to time by action of the stockholders or by action of the Board. All the
directors shall be of full age. Directors need not be stockholders. Except as
otherwise provided by statute or the Certificate of Incorporation or these By-
laws, the directors shall be elected by plurality vote at the annual meeting of
the stockholders. Each director shall hold office until the next annual meeting
of the stockholders and until his successor shall have been duly elected and
qualified, or until his death, or until he shall have resigned, or have been
removed, as hereinafter provided in these By-laws, or as otherwise provided by
statute or the Certificate of Incorporation.
Section 3. Place of Meetings. Meetings of the Board, regular or special,
-----------------
may be held at such place and at such time, within or without the State of
Delaware, as the Board may from time to time determine or as shall be specified
in the notice or waiver of notice of such meeting.
Section 4. Annual Meeting. The Board shall meet for the purpose of
--------------
organization, the election of officers and the transaction of other business, as
soon as practicable after each annual meeting of the stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
<PAGE>
13
such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
Section 5. Regular Meetings. Regular meetings of the Board shall be held
----------------
at such time and place as the Board from time to time determines. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day. Notice
of regular meetings of the Board need not be given except as otherwise required
by statute or these By-laws.
Section 6. Special Meetings. Special meetings of the Board shall be held
----------------
whenever called by two or more directors of the Corporation or by the Chairman
of the Board or the President or the Secretary.
Section 7. Notice of Meetings. Notice of each special meeting of the
------------------
Board (and of each regular meeting for which notice shall be required) shall be
given by the Secretary as hereinafter provided in this Section 7, in which
notice shall be stated the time and place (within or without the State of
Delaware) of the meeting. Notice of each such meeting shall be delivered to
each director, either personally or by telephone, telegraph, cable or wireless,
at least twenty-four hours before the time at which such meeting is to be held
or by first-class mail, postage prepaid, addressed to him at his residence, or
usual place of business, at least two days before the day on
<PAGE>
14
which such meeting is to be held. If mailed, each notice shall be deemed given
when deposited, with postage thereon prepaid, in a post office or official
depository under the exclusive care and custody of the United States post office
department. Notice of any such meeting need not be given to any director who
shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting without protesting, prior to or at its
commencement, the lack of notice to him. Except as otherwise specifically
required by these By-laws, a notice or waiver of notice of any regular or
special meeting need not state the purposes of such meeting.
Section 8. Quorum and Manner of Acting. One-third of the directors shall
---------------------------
be present in person or by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, at any meeting of the Board in order to constitute
a quorum for the transaction of business at such meeting, and, except as
otherwise expressly required by statute or the Certificate of Incorporation, the
act of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board. In the absence of a quorum at any
meeting of the Board, a majority of the directors present thereat, or if no
director be present, the Secretary, may adjourn such meeting to another time and
place. At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as originally
called. Except as provided in Article 3 of these By-laws, the directors shall
act
<PAGE>
15
only as a Board and the individual directors shall have no power as such.
Section 9. Organization. At each meeting of the Board, the Chairman of
------------
the Board (or, in his absence or inability to act, the President, or, in his
absence or inability to act another director chosen by a majority of the
directors present) shall act as Chairman of the meeting and preside thereat.
The Secretary (or, in his absence or inability to act, the Assistant Secretary,
or in his absence or inability to act any person appointed by the Chairman)
shall act as secretary of the meeting and keep the minutes thereof.
Section 10. Resignations. Any director of the Corporation may resign at
------------
any time by giving written notice of his resignation to the Corporation. Any
such resignation shall take effect at the time specified therein, or, if the
time when it shall become effective shall not be specified therein, immediately
upon its receipt: and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 11. Vacancies. Vacancies and newly created directorships
---------
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, or may be elected by a plurality of the votes cast by
the holders of shares of capital stock entitled to vote in the election at a
special meeting of stockholders called for that purpose and the directors so
chosen shall hold office until the
<PAGE>
16
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office. When one or more directors shall resign from the
Board, effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section in the filling of other vacancies.
Section 12. Removal of Directors. Except as otherwise provided in the
--------------------
Certificate of Incorporation or in these By-laws, any director may be removed,
either with or without cause, at any time, by the affirmative vote of the
holders of record of a majority of the issued and outstanding stock entitled to
vote for the election of directors of the Corporation given at a special meeting
of the stockholders called and held for that purpose; and
<PAGE>
17
the vacancy in the board caused by such removal may be filled by such
stockholders at such meeting, or, if the stockholders shall fail to fill such
vacancy, as in these By-laws provided.
Section 13. Compensation. The Board shall have authority to fix the
------------
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity, provided, no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 14. Action Without Meeting. Any action required or permitted to
----------------------
be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section 15. Telephonic Participation. One or more members of the Board
------------------------
may participate in a meeting by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
ARTICLE 4
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and Other Committees. The Board may, by resolution
------------------------------
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more
<PAGE>
18
of the directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution, and except as otherwise provided by statute,
shall have and may exercise the powers of the Board in the management of the
business and affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-laws of the Corporation; and, unless the resolution
designating it expressly so provides, no committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. In the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such minutes to the Board when required. All such
proceedings shall be subject to revision or alteration by the Board;
<PAGE>
19
provided, however, that third parties shall not be prejudiced by such revision
or alteration.
Section 2. General. A majority of any committee may determine its action
-------
and fix the time and place of its meeting, unless the Board shall otherwise
provide. Notice of such meetings shall be given to each member of the committee
in the manner provided for in Article 3, Section 7. The Board shall have the
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such committee.
ARTICLE 5
OFFICERS
Section 1. Number and Qualifications. The officers of the corporation
-------------------------
shall include a President, a Secretary, a Treasurer, and/or Controller, and, if
deemed necessary, expedient, or desirable by the Board of Directors, a Chairman
of the Board, a Vice-Chairman of the Board, one or more Vice-Presidents, one or
more Assistant Secretaries, one or more Assistant Treasurers, and such other
officers with such titles as the resolution of the Board of Directors choosing
them shall designate. Any two or more offices may be held by the same person.
Such officers shall be elected from time to time by the Board, each to hold
office until the meeting of the Board following the next annual meeting of the
stockholders, or until his successor shall have been duly elected and shall have
qualified, or until his death, or until he shall have resigned, or have been
removed, as hereinafter provided in these By-laws.
<PAGE>
20
Section 2. Resignations. Any officer of the Corporation may resign at any
------------
time by giving written notice of his resignation to the Board, the President or
the Secretary. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
The resignation of an officer shall be without prejudice to the contract rights
of the corporation, if any.
Section 3. Removal. Any officer of the Corporation may be removed, either
-------
with or without cause at any time, by the vote of the majority of the entire
Board at any meeting of the Board. Such removal shall be without prejudice to
the contractual rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office, whether arising from
---------
death, resignation, removal, disqualification or any other cause, shall be
filled for the unexpired portion of the term of the office which shall be
vacant, in the manner prescribed in these By-laws for the regular election or
appointment to such office.
Section 5. The Chairman of the Board. The Chairman of the Board shall, if
-------------------------
present, preside at each meeting of the stockholders and of the Board. He shall
perform all duties incident to the office of the Chairman of the Board and such
other duties as may from time to time be assigned to him by the Board. In the
absence or in the case of the death or disability
<PAGE>
21
of the President, the Chairman of the Board shall have and exercise all the
powers of the President.
Section 6. The President. The President shall be the chief executive
-------------
officer of the Corporation and shall have general and active supervision and
direction over the business and affairs of the Corporation and over its several
officers subject, however to the control of the Board and of any duly authorized
committee of directors. At the request of the Chairman of the Board, or in the
case of his absence or inability to act, the President shall perform the duties
of the Chairman of the Board and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the Chairman of the Board. The
President shall, if present, preside at all meetings of the stockholders and at
all meetings of the Board. He may, with the Secretary or the Treasurer, sign
certificates for shares of capital stock of the Corporation. He may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts and
other instruments, except in cases where the signing and execution thereof shall
be expressly delegated by the Board or by the By laws to some other officer or
agent of the Corporation, or shall be required by law otherwise to be signed or
executed. He shall perform all duties incident to the office of President and
such other duties as from time to time may be assigned to him by the Board or
these By-laws.
Section 7. Vice-Presidents. At the request of the President, or, in his
---------------
absence and in the absence of the Chairman of the Board, at the request of the
Board, the Vice-Presidents
<PAGE>
22
shall (in such order as may be designated by the Board or, in the absence of any
such designation, in order of seniority based on age) perform all of the duties
of the President and so acting shall have all the powers of and be subject to
all restrictions upon the President. Any Vice-President may also, with the
Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer,
sign certificates for shares of capital stock of the Corporation; may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments authorized by the Board, except in cases where the signing and
execution thereof shall be expressly delegated by the Board or by the By-laws to
some other officer or agent of the Corporation, or shall be required by law
otherwise to be signed or executed; and shall perform such other duties as from
time to time may be assigned to him by the Board or by the President.
Section 8. The Treasurer. The Treasurer shall
-------------
(a) have charge and custody of, and be responsible for, all the
funds, securities, and notes of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and have control of all books
of account of the Corporation;
(c) cause all moneys and other valuables to be deposited to the
credit of the Corporation in such depositaries as may be
designated by the Board;
<PAGE>
23
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investment of its funds as ordered or authorized by the Board,
taking proper vouchers therefor;
(f) render to the President or the Board, whenever the President or
the Board may require, an account of the financial condition of
the Corporation and of all his transactions as Treasurer;
(g) sign with the President or a Vice-President certificates for
shares of capital stock of the Corporation; and
(h) in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be
assigned to him by the Board, the Chairman of the Board, or the
President.
A Controller and Assistant Controller may perform the function of Treasurer
and Assistant Treasurer.
Section 9. The Secretary. The Secretary shall
-------------
(a) act as Secretary of all meetings of the stockholders and of the
Board;
(b) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board, the committees
of the Board and the stockholders;
<PAGE>
24
(c) see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law;
(d) with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation;
(e) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided) and
affix and attest the seal to all other documents to be executed
on behalf of the Corporation under its seal;
(f) see that the books, reports, statements, certificates, stock
ledgers and other documents and records required by law to be
kept and filed are properly kept and filed; and
(g) in general, perform all the duties incident to the office of
Secretary and such duties as from time to time may be assigned to
him by the Board, the Chairman of the Board or the President.
Section 10. Assistant Secretaries and Assistant Treasurers. Assistant
----------------------------------------------
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the
<PAGE>
25
President or a Vice-President, sign certificates for shares of capital stock of
the Corporation.
Section 11. Officers' Bonds or other Security. If required by the Board,
---------------------------------
any officer of the Corporation shall give a bond or other security for the
faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section 12. Compensation. The compensation of the officers of the
------------
Corporation for their services as such officers shall be fixed from time to time
by the Board. An officer of the Corporation shall not be prevented from
receiving compensation by reason of the fact that he is also a director of the
Corporation, but any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation paid to him.
ARTICLE 6
INDEMNIFICATION
Section 1. Agreement to Indemnify. The Corporation shall indemnify any
----------------------
person (including his heirs, executors and administrators) who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
<PAGE>
26
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Agreement in Derivative Action. The Corporation shall
------------------------------
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
<PAGE>
27
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Successful Defense. To the extent that a director, officer,
------------------
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections 1
and 2 of this Article 6, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. Determination. Any indemnification under Sections 1 and 2 of
-------------
this Article 6 (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Sections 1 and 2 of
this Article 6. Such determination shall be made (a) by the Board by a majority
vote of a quorum consisting of directors who were not parties to such
<PAGE>
28
action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even
if obtainable such a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (c) by the stockholders.
Section 5. Advances. Expenses incurred in defending a civil or criminal
--------
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation.
Section 6. Non-Exclusivity. The indemnification provided by this Article
---------------
6 shall not be deemed exclusive of any other rights to which those may be
entitled under any By-law, agreement, vote of stockholders or disinterested
directors or otherwise both as to action in his official capacity and as to
action in another capacity while holding such office and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 7. Insurance. The Corporation shall have the power to purchase
---------
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
<PAGE>
29
capacity, or arising out of his statues as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article 6.
Section 8. Reference. For purposes of this Article 6 references to the
---------
"Corporation" include all constituent corporations absorbed in a consolidation
or merger as well as the resulting or surviving corporation so that any person
who is or was a director, officer, employee or agent of such a constituent
corporation or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise shall stand in the same position under
the provisions of this Article 6 with respect to the resulting or surviving
corporation as he would if he had served the resulting or surviving corporation
in the same capacity.
ARTICLE 7
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. Execution of Contracts. Except as otherwise required by
----------------------
statute, the Certificate of Incorporation or these By-law, any contracts or
other instruments may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these By-laws, an officer or
agent or employee shall
<PAGE>
30
not have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it pecuniarily liable for any
purpose or to any amount.
Section 2. Loans. The President or any other officer, employee or agent
-----
authorized by these By-laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institution, or
from any firm, corporation or individual, and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, but no officer or officers shall
mortgage, pledge, hypothecate or transfer any securities or other property of
the Corporation, except when authorized by the Board. Such authority conferred
by the Board may be general or confined to specific instances or otherwise
limited.
Section 3. Checks, Drafts, etc. All checks, drafts, bills of exchange or
-------------------
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall from time to time be authorized by the Board.
Section 4. Deposits. All funds of the Corporation not otherwise employed
--------
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may from time to time
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be
<PAGE>
31
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the Corporation may
be endorsed, assigned and delivered by any officer or agent of the Corporation,
or in such other manner as the Board may determine by resolution.
Section 5. General and Special Bank Accounts. The Board may from time to
---------------------------------
time authorize the opening and keeping of general and special bank accounts with
such banks, trust companies or other depositories as the Board may designate or
as may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the Board. The Board
may make such special rules and regulations with respect to such bank accounts,
not inconsistent with the provisions of these By-laws, as it may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations. Unless
------------------------------------------------------
otherwise provided by resolution adopted by the Board of Directors, the
President or a Vice-President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation any of whose
stock or other securities may be held by the Corporation, at meetings of the
holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such
<PAGE>
32
holder, to any action by such other corporation, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed in the name and on behalf of
the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
ARTICLE 8
SHARES, ETC.
Section 1. Stock Certificates. Each holder of stock of the Corporation
------------------
shall be entitled to have a certificate, in such form as shall be approved by
the Board, certifying the number of shares of stock of the Corporation owned by
him. The certificates representing shares of stock shall be signed in the name
of the Corporation by the President or a Vice-President and by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer and sealed
with the seal of the Corporation (which seal may be a facsimile, engraved or
printed); provided, however, that where any such certificate is countersigned by
a transfer agent other than the Corporation or one of its employees, or is
registered by a registrar other than the Corporation or one of its employees,
the signature of the officers of the Corporation upon such certificates may be a
facsimile, engraved or printed. In case any officer who shall have signed or
whose facsimile signature has been placed upon such certificates shall have
ceased to be such officer before such certificates shall be issued, they may
nevertheless be
<PAGE>
33
issued by the Corporation with the same effect as if such officer were still in
office at the date of their issue.
Section 2. Books of Account and Record of Stockholders. The books and
-------------------------------------------
records of the Corporation may be kept at such places within or without the
State of Delaware, as the Board of Directors may from time to time determine.
The stock record books and the blank stock certificate books shall be kept by
the Secretary or by any other officer or agent designated by the Board of
Directors.
Section 3. Transfer of Shares. Transfers of shares of stock of the
------------------
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked
"Cancelled" with the date of cancellation, by the Secretary or an Assistant
Secretary or the transfer agent of the Corporation. Except as otherwise
provided by law, the Corporation shall be entitled to recognize the exclusive
right of a person in whose name any share or shares stand on the record of
stockholders as the owner of such share or shares for all purposes, including
without limitation, the right to receive dividends or other distributions and to
vote as such owner, and the Corporation may
<PAGE>
34
hold any such stockholder of record liable for calls and assessments and the
Corporation shall not be bound to recognize any equitable or legal claim to or
interest in any such share or shares on the part of any other person whether or
not it shall have express or other notice thereof. Whenever any transfers of
shares shall be made for collateral security and not absolutely, and both the
transferor and transferee request the Corporation to do so, such fact shall be
stated in the entry of the transfer.
Section 4. Regulations. The Board may make such additional rules and
-----------
regulations, not inconsistent with these By-laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
Section 5. Lost, Destroyed, Stolen or Mutilated Certificates. The holder
-------------------------------------------------
of any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of any loss, destruction, theft or mutilation
of such certificate, and the Corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it which the owner thereof
shall allege to have been lost, stolen, or destroyed or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his legal
representatives to make proof satisfactory to the Board of such
<PAGE>
35
loss, destruction, theft or mutilation and to advertise such fact in such manner
as the Board may require, and to give to the Corporation a bond in such sum,
limited or unlimited, and in such form and with such surety or sureties as the
Board in its absolute discretion shall determine, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft, or destruction of any such certificate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board, in its
absolute discretion, may refuse to issue any such new certificate, except
pursuant to legal proceedings under the laws of the State of Delaware.
Section 6. Restriction on Transfer of Stock. A written restriction on the
--------------------------------
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number
<PAGE>
36
of stockholders or among such stockholders and the Corporation. No restriction
so imposed shall be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital stock are parties
to an agreement or voted in favor of the restriction.
Section 7. Dividends, Surplus, Etc. Subject to the provisions of the
-----------------------
Certificate of Incorporation and of law, the Board.
7.1 May declare and pay dividends or make other distributions on
the outstanding shares of capital stock in such amounts and at such
time or times as, in its discretion, the condition of the affairs of
the Corporation shall render advisable.
7.2 May use and apply, in its discretion, any of the surplus of
the Corporation in purchasing or acquiring any shares of capital stock
of the Corporation, or purchase warrants thereof, in accordance with
law, or any of its bonds, debentures, notes, scrip or other securities
or evidences of indebtedness;
7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper,
as a reserve fund to meet contingencies, or for equalizing dividends
or for the purpose of maintaining or increasing the property or
business of the Corporation, or for any purpose it
<PAGE>
37
may think conducive to the best interests of the Corporation.
ARTICLE 9
BOOKS AND RECORDS
Section 1. Books and Records. The Corporation shall keep correct and
-----------------
complete books and records of account and shall keep minutes of the proceedings
of the stockholders, the Board and any committee of the Board. The Corporation
shall keep at the office designated in the Certificate of Incorporation or at
the office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
Section 2. Form of Records. Any records maintained by the Corporation in
---------------
the regular course of its business, including its stock ledger, books of
accounts, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographys, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 3. Inspection of Books and Records. Except as otherwise provided
-------------------------------
by law, the Board shall determine from time to time whether, and, if allowed,
when and under what conditions and regulations, the accounts, books, minutes and
other records of
<PAGE>
38
the Corporation, or any of them, shall be open to the inspection of the
stockholders.
ARTICLE 10
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors.
ARTICLE 11
SEAL
The Board shall provide a corporate seal, which shall be in the form of a
circle and bear the name of the Corporation and the words and figures "Corporate
Seal-Delaware" and the year of incorporation.
ARTICLE 12
AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may be
adopted by the stockholders or by the Board of Directors, when such power is
conferred upon the Board of Directors by the Certificate of Incorporation at any
regular meeting of the stockholders or of the Board of Directors or any special
meeting of the stockholders or of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new By-laws be contained on the
notice of such special meeting.
<PAGE>
EXHIBIT 3.39
ARTICLES OF INCORPORATION
OF
GRAND EAGLE MINING, INC.
1. Corporate Name. The Corporation's name shall be Grand Eagle
--------------
Mining, Inc.
2. Authorized Shares. The Corporation shall have authority to
-----------------
issue 1,000 shares.
3. Registered Office and Agent. The street address of the
---------------------------
Corporation's initial registered office shall be 3200 Capital Holding Center,
Louisville, Kentucky 40202-3363. The name of the Corporation's initial
registered agent at that office shall be BTH Inc.
4. Principal Office. The mailing address of the Corporation's
----------------
principal office shall be 2506 Mount Moriah Road, Summer Shade, Kentucky, 42166.
5. Purpose. The Corporation's purpose shall be to engage in any
-------
lawful business.
6. Incorporator. The name and mailing address of the incorporator
------------
are William T. Fields, 3200 Capital Holding Center, Louisville, Kentucky, 40202-
3363.
/s/ William T. Fields
------------------------
William T. Fields
Date: November 17, 1993
-----------------------
<PAGE>
EXHIBIT 3.40
BYLAWS
OF
GRAND EAGLE MINING, INC.
I certify that the following Bylaws, consisting of four pages, each of
which I have initialed for identification, are the Bylaws adopted by the Board
of Directors of Grand Eagle Mining, Inc. (the "Corporation"), by a Written
Action by Director dated November 22, 1993.
/s/ Richard W. Ward
---------------------------
Richard W. Ward, Secretary
<PAGE>
1
BYLAWS
OF
GRAND EAGLE MINING, INC.
1. Meeting of Shareholders
-----------------------
1.1 The annual meeting of the shareholders of the Corporation shall
be held at 10:00 a.m. on the first Monday in February of each year if not a
legal holiday and if a legal holiday, then on the next day not a Saturday,
Sunday or legal holiday.
1.2 The annual meeting of the shareholders shall be held at a place
designated by the Board of Directors or, if the Board of Directors does not
designate a place, then at a place designated by the Secretary or, if the
Secretary does not designate a place, at the Companies' registered office.
1.3 Special meetings of the shareholders shall be held at a place
designated by the Board of Directors if the special meeting is called by the
Board of Directors. If the special meeting is not called by the Board of
Directors the meeting shall be held at the Companies' registered office.
2. Board of Directors
------------------
2.1 The exact number of directors may be fixed, increased or
decreased from time to time by a resolution adopted by the vote of the
shareholders who (a) are present in person or by proxy at a meeting held to
elect directors and (b) have a majority of the voting power of the shares
represented at such meeting and entitled to a vote in the election.
<PAGE>
2
2.2 Meetings of the Board of Directors may be called by the President
or by any director.
2.3 Unless waived as permitted by the Kentucky Business Corporation
Act, notice of the time, place and purpose of each meeting of the directors
shall be either (a) telephoned or personally delivered to each director at least
forty-eight hours before the time of the meeting or (b) mailed to each director
at his last known address at least ninety-six hours before the time of the
meeting.
3. Officers
--------
3.1 The Corporation may have one or more Vice Presidents and shall
have a President, a Secretary and a Treasurer, all of whom shall be elected by
the Board of Directors. The Corporation may also have such assistant officers as
the Board of Directors may deem necessary, all of whom shall be elected by the
Board of Directors or chosen by an officer or officers designated by it.
3.2 The President shall have:
(a) General charge and authority over the business of the
Corporation subject to the direction of the Board of Directors,
(b) Authority to preside at all meetings of the shareholders and
of the Board of Directors,
(c) Authority acting alone, except as otherwise directed by the
Board of Directors, to sign and deliver any document on behalf of the
Corporation, including without limitation, any deed conveying title to any real
estate owned by
<PAGE>
3
the Corporation and any contract for the sale or other disposition of any such
real estate, and,
(d) Such other powers and duties as the Board of Directors may
assign.
3.3 The Vice President, or if there be more than one Vice President,
the Vice Presidents in the order of their seniority by designation (or if not
designated in the order of their seniority of election), shall perform the
duties of the President in his absence. The Vice Presidents shall have such
other powers and duties as the Board of Directors or the President may assign to
them.
3.4 The Secretary shall:
(a) Issue notices of all meetings for which notice is required to
be given,
(b) Have responsibility for preparing minutes of the directors'
and shareholders' meetings and for authenticating records of the Corporation,
(c) Have charge of the corporate record books, and
(d) Have such other duties and powers as the Board of Directors
or the President may assign.
3.5 The Treasurer shall:
(a) Have the custody of all funds and securities of the
Corporation,
(b) Keep adequate and correct accounts of the Corporation's
affairs and transactions, and
(c) Have such other duties and powers as the Board of Directors
or the President may assign.
<PAGE>
4
3.6 Other officers and agents of the Corporation shall have such
authority and perform such duties in the management of the Corporation as the
Board of Directors or the President may assign to them.
4. Certificates and Transfers
--------------------------
4.1 Shares of the Corporation shall be represented by certificates in
such form as shall from time to time be prescribed by the President.
4.2 Certificates representing shares of the Corporation shall be
signed (either manually or in facsimile) by the President or Vice President and
by the Secretary or Treasurer.
4.3 Transfer of shares shall be made only on the stock transfer books
of the Corporation.
Prepared By
BROWN, TODD & HEYBURN
3200 Capital Holding Center
Louisville, Kentucky 40202-3363
<PAGE>
EXHIBIT 3.41
CERTIFICATE OF INCORPORATION
OF
HAYDEN GULCH TERMINAL, INC.
* * * * *
1. The name of the corporation is
HAYDEN GULCH TERMINAL, INC.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (l,000) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
At all elections of directors of the corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for such provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected by him, and he may cast all of such votes
for a single director or may distribute them among the
<PAGE>
2
number to be voted for, or for any two or more of them as he may see fit.
5A. The name and mailing address of each incorporator
is as follows:
NAME MAILING ADDRESS
---- ---------------
M.A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K.A. Widdoes Corporation Trust Center 1209
Orange Street
Wilmington, Delaware 19801
L.J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is
as follows:
NAME MAILING ADDRESS
---- ---------------
G.H. MacLean 99 Wood Avenue South
Iselin, New Jersey 08830
P.J. Statile 99 Wood Avenue South
Iselin, New Jersey 08830
D.L. Stevenson 1300 South Yale
Flagstaff, Arizona 86001
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper
<PAGE>
3
purpose and to abolish any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The by-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or by-laws, expressly so
provide, no such committee shall have the
<PAGE>
4
power or authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in whole
or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the by-
laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of
<PAGE>
5
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived any improper personal
benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 1st day of
September, 1992.
/s/ M. A. Brzoska
---------------------------
M. A. Brzoska
/s/ K. A. Widdoes
---------------------------
K. A. Widdoes
/s/ L. J. Vitalo
---------------------------
L. J. Vitalo
<PAGE>
EXHIBIT 3.42
HAYDEN GULCH TERMINAL, INC.
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Flagstaff, State of Arizona, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
<PAGE>
2
Section 2. Annual meetings of stockholders, commencing with the year
1993, shall be held on the first day of April if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 A.M., or at such
other date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole
<PAGE>
3
time thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time,
<PAGE>
4
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
At all elections of directors of the corporation each stockholder
having voting power shall be entitled to exercise the right of cumulative voting
as provided in the certificate of incorporation.
<PAGE>
5
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than ten. The first board shall
consist of three directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
<PAGE>
6
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
<PAGE>
7
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president without notice to each director; special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of two directors unless the board consists of only one director; in
which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
<PAGE>
8
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
<PAGE>
9
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other
<PAGE>
10
class or classes or any other series of the same or any other class or classes
of stock of the corporation) adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the by-laws of the corporation; and, unless the resolution or the
certificate of incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock or to adopt a certificate of ownership and merger. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special
<PAGE>
11
or standing committees may be allowed like compensation for attending committee
meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
<PAGE>
12
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
<PAGE>
13
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
14
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
<PAGE>
15
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the
<PAGE>
16
absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such
<PAGE>
17
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the
<PAGE>
18
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. Upon receipt of
proper transfer instructions from the registered owner of uncertificated shares
such uncertificated shares shall be cancelled and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
<PAGE>
19
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the
<PAGE>
20
interest of the corporation, and the directors may modify or abolish any such
reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
<PAGE>
21
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.43
CERTIFICATE OF INCORPORATION
OF
INDEPENDENCE MATERIAL HANDLING COMPANY
1. The name of the corporation is Independence Material Handling Company.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is One Hundred (100) and the par value of each of such shares
is Ten Dollars and No Cents ($10.00) amounting in the aggregate to One Thousand
Dollars and No Cents ($1,000.00).
5. The board of directors is authorized to make, alter or repeal the by-
laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the sole incorporator is:
L.J. Vitalo
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
8. The corporation shall indemnify its officers, directors, employees and
agents to the extent permitted by the General Corporation Law of Delaware.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the
<PAGE>
2
General Corporation Law of the State of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly have hereunto set my hand this 5th day
of June, 1996.
/s/ L. J. Vitalo
-----------------------
L. J. Vitalo
Sole Incorporator
<PAGE>
CERTIFICATE OF CORRECTION FILED TO CORRECT
CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION
OF INDEPENDENCE MATERIAL HANDLING COMPANY
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON JUNE 5, 1995.
INDEPENDENCE MATERIAL HANDLING COMPANY, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1. The name of the corporation is INDEPENDENCE MATERIAL HANDLING COMPANY.
2. That a Certificate of INDEPENDENCE MATERIAL HANDLING COMPANY was filed
by the Secretary of State of Delaware on June 5, 1996 and that said
Certificate requires correction as permitted by Section 103 of the
General Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected is as
follows: Number of shares authorized should be 1,000 shares not 100
shares.
4. Article 4 of the Certificate is corrected to read as follows: The
total number of shares of stock which the corporation shell have
authority to issue is One Thousand (1,000) and the par value of each
of such shares is Ten Dollars and No Cents ($10.00) amounting in the
aggregate to Ten Thousand Dollars and No Cents ($10,000,00).
IN WITNESS WHEREOF, said INDEPENDENCE MATERIAL HANDLING COMPANY has
caused this Certificate to be signed by D.C. Hegger its Vice President and
attested by J.C. Sevem, its secretary, this seventh day of June, 1996.
INDEPENDENCE MATERIAL HANDLING COMPANY
By: /s/ David C. Hegger
-----------------------------------
ATTEST
By /s/ James C. Sevem
-----------------------------------------
Secretary
<PAGE>
EXHIBIT 3.44
INDEPENDENCE MATERIAL HANDLING COMPANY
* * * * *
B Y -L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of St. Louis, State of Missouri, at such place as may
be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1997,
shall be held in the month of May on such other date
<PAGE>
2
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than 10 nor more than 60 days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in
<PAGE>
3
writing of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for
<PAGE>
4
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt
<PAGE>
5
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be 2. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily
<PAGE>
6
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
<PAGE>
7
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
0 days' notice to each director, either personally or by mail or by facsimile
communication; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in
<PAGE>
8
writing, and the writing or writings are filed with the minutes of proceedings
of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of any such
absent or disqualified member.
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of
<PAGE>
9
the business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
certificate of incorporation, (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the board of directors as provided in Section 151 (a) of the
General Corporation Law of Delaware fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
<PAGE>
10
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United
<PAGE>
11
States mail. Notice to directors may also be given by facsimile
telecommunication.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
<PAGE>
12
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
<PAGE>
13
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such
<PAGE>
14
other duties and have such other powers as the board of directors may from time
to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then
<PAGE>
15
in the order of their election) shall, in the absence of the treasurer or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each
<PAGE>
16
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Within a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a written
notice containing the information required to be set forth or stated on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the General
Corporation Law of Delaware or a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be facsimile.
In case any officer, agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed,
<PAGE>
17
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates or uncertificated shares, the board
of directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of
<PAGE>
18
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting: provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
<PAGE>
19
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such
<PAGE>
20
other person or persons as the board of directors may from time to time
designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-
laws may be adopted by the stockholders or by the board of directors, when such
power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board
<PAGE>
21
of directors by the certificate of incorporation it shall not divest or limit
the power of the stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.45
CERTIFICATE OF INCORPORATION
OF
INTERIOR HOLDINGS CORP.
* * * * *
1. The name of the corporation is
INTERIOR HOLDINGS CORP.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is One Hundred Dollars ($100.00) amounting in the aggregate to One
Hundred Thousand Dollars ($100,000.00).
5A. The name and mailing address of each incorporator is as follows:
<PAGE>
2
NAME MAILING ADDRESS
---- ---------------
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
I.F. Engelhardt 701 Market Street, Suite 700
St. Louis, MO 63101
J.E. Lushefski 701 Market Street, Suite 700
St. Louis, MO 63101
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such
<PAGE>
3
place or places as may be designated from time to time by the board of directors
or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 7th day of
December, 1994.
/s/ K. A. Widdoes
-------------------------------
K. A. Widdoes
<PAGE>
4
/s/ M. A. Brzoska
-------------------------------
M. A. Brzoska
/s/ L. J. Vitalo
-------------------------------
L. J. Vitalo
<PAGE>
EXHIBIT 3.46
INTERIOR HOLDINGS CORP.
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of St. Louis, State of Missouri, at such place as may
be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1995,
shall be held on the first day of April if not a legal holiday, and if a legal
holiday, then on the next secular day
<PAGE>
2
following, at 10 A. M., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting, at which they shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president
<PAGE>
3
and shall be called by the president or secretary at the request in writing of a
majority of the board of directors, or at the request in writing of stockholders
owning a majority in amount of the entire capital stock of the corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty
<PAGE>
4
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which
<PAGE>
5
all shares entitled to vote thereon were present and voted. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be not less than one nor more than three. The first board shall consist
of two directors. Thereafter, within the limits above specified, the number of
directors shall be determined by resolution of the board of directors or by the
stockholders at the annual meeting. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
<PAGE>
6
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as
<PAGE>
7
hereinafter provided for special meetings of the board of directors, or as shall
be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
zero days notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any
<PAGE>
8
committee thereof may be taken without a meeting, if all members of the board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of any such
absent or disqualified member.
<PAGE>
9
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
<PAGE>
10
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at
<PAGE>
11
his address as it appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice to directors may
also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
<PAGE>
12
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any
<PAGE>
13
designation, then in the order of their election) shall perform the duties of
the president, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the president. The vice-presidents shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or
<PAGE>
14
in the event of his inability or refusal to act, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
<PAGE>
15
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a written
notice containing the information required to be set forth or stated on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that
the corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
<PAGE>
16
Section 2. Any of or all the signatures on a certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed
<PAGE>
17
or accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer instructions from
the registered owner of uncertificated shares such uncertificated shares shall
be cancelled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stock holders shall apply to any adjournment of the meeting:
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
<PAGE>
18
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of
<PAGE>
19
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
<PAGE>
20
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-
laws may be adopted by the stockholders or by the board of directors, when such
power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.47
CERTIFICATE OF INCORPORATION
OF
A.T. TWO, INC.
FIRST: The name of the Corporation is A.T. Two, Inc.
-----
SECOND: The registered office of the Corporation in the State of
------
Delaware is located at 100 West Tenth Street in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company. The principal place of business of the Corporation
is 2205 Fifth Street Road, Huntington, West Virginia 25701.
THIRD: The purposes for which it is formed are: To construct and
-----
operate coal loading terminals.
To engage in any lawful act or activity for which corporations may be
formed under the General Corporation Law of the State of Delaware.
To purchase or otherwise acquire, lease as leasee, invest in, hold,
use, lease as lessor, encumber, sell, exchange, transfer, and dispose of
property of any description or any interest therein.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and tradenames, relating to
or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange,
<PAGE>
2
transfer, mortgage, pledge, or otherwise dispose of or deal in and with any of
the shares of the capital stock, or any voting trust certificates in respect of
the shares of capital stock, script, warrants, rights, bonds, debentures, notes,
trust receipts, and other securities, obligations, choses in action and
evidences of indebtedness or interest issued or created by any corporations,
joint stock companies, syndicates, associations, firms, trusts or persons,
public or private, or by the government of the United States of America or by
any foreign government, or by any state, territory, province, municipality or
other political subdivision or by any governmental agency, and as owner thereof
to possess and exercise all the rights, powers and privileges of ownership,
including the right to execute consents and vote thereon, and to do any and all
acts and things necessary or advisable for the preservation, protection,
improvement and enhancement in value thereof.
To enter into, make and perform contracts of every kind and
description with any person, firm, association, corporation, municipality,
county, state, body politic or government or colony or dependency thereof.
To purchase or otherwise acquire all or any part of the business, good
will, rights, property and assets, and to assume all or any part of the
liabilities of any corporation, association, partnership or individual engaged
in any business in which any corporation organized under the General Corporation
Law of the State of Delaware is entitled to engage.
<PAGE>
3
To borrow money, and issue, sell, and pledge its notes, bonds, and
other evidences of indebtedness, and secure any of its obligations by mortgage,
pledge, or deed of trust of all or any of its property, and guarantee or secure
obligations of any person.
To purchase, hold, sell and transfer the shares of its own capital
stock to the extent permitted by law but no such purchase may be made when there
is reasonable ground for believing that the corporation is unable, or, by such
purchase, may be rendered unable to satisfy its obligations and liabilities.
To conduct its business, and to have and maintain one or more offices,
within and without the State of Delaware and in all other states and
territories, in the District of Columbia, in all dependencies, colonies, or
possessions of the United States of America and in foreign countries; and to
purchase, or otherwise acquire, hold, own, equip, improve, manage, operate,
promote, finance, sell, convey, mortgage or otherwise dispose of real and
personal property in all such states and places, to the extent that the same may
be permissible under the laws thereof.
To carry on other lawful business and to do any and every thing
necessary, suitable, convenient or proper for the accomplishment of any of the
purposes or the attainment of any one or all of the objects hereinbefore
enumerated or incidental to the powers herein named or for the enhancement of
the value of the properties of the corporation or which shall at any time appear
conducive thereto or expedient, either as holder of, or as
<PAGE>
4
interested in, any property or otherwise; to have all the rights, powers, and
privileges now or hereafter conferred by the laws of the State of Delaware upon
corporations organized under its General Corporation Law or under any act
amendatory thereof, supplemental thereto or substituted therefor.
The objects and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in these articles
of incorporation, but the objects and purposes specified in each of the
foregoing clauses of this article shall be regarded as independent objects and
purposes.
FOURTH: The total number of shares of stock which the Corporation is
------
authorized to issue is ONE THOUSAND (1,000) shares of Common Stock, without par
value.
FIFTH: The holders of the Common Stock shall, as such, have the
-----
right, pro rata, according to their total respective holdings of Common Stock
and on such terms and conditions as the Board of Directors may determine, to
purchase or subscribe for any of the authorized but unissued shares of Common
Stock which the Corporation may hereafter issue; provided, however, that any
such right to purchase or subscribe for any such shares of Common Stock or any
such obligation shall be nontransferable.
SIXTH: The incorporator is Frank J. Smith, Jr., whose mailing address
-----
is 2500 Elm Street, Ashland, Kentucky 41101.
SEVENTH: Subject to the limitations imposed by this Article SEVENTH,
-------
the business affairs of the Corporation shall be
<PAGE>
5
managed by the Board of Directors, and the Directors need not be elected by
ballot unless required by the By-laws of the Corporation.
The following powers shall not be vested in the Directors but shall be
reserved in and exercised only by the Stockholders of the Corporation:
A. The power to declare dividends.
B. The power to borrow money and/or to mortgage, pledge or otherwise
encumber assets of the Corporation.
C. The power to sell all or substantially all of the assets of the
Corporation or to merge, consolidate or to liquidate the Corporation.
D. The power to amend the By-laws of the Corporation.
E. The power to grant proxies to vote shares of stock owned or held
by the Corporation.
F. The power to guarantee debts or obligations of any other person,
corporation or other entity.
EIGHTH: The names of the persons who are to serve as Directors of
------
the Corporation until the first annual meeting of the Stockholders, or until
their successors are elected and qualified, and their mailing addresses are as
follows:
John B. Kebblish 243 Bellefonte Circle
Ashland, Kentucky 41101
R. Rex Jones 2607 Hayslette Avenue
Hurricane, West Virginia 25526
Richard L. Saunders 101 India Drive
Russell, Kentucky 41169
<PAGE>
6
NINTH: Subject to the restrictions that the number of Directors shall
-----
not be less than three (3), or such larger number as from time to time may be
required by the laws of the State of Delaware the number of Directors may be
fixed from time to time by the By-Laws of the Corporation.
TENTH: The private property of the Stockholders of the Corporation
-----
shall not be subject to the payment of any of the debts or liabilities of the
Corporation.
ELEVENTH: The Corporation reserves the right to amend or repeal any
--------
provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware. All rights herein conferred are
granted subject to this reservation.
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming
a corporation under the laws of the State of Delaware do make and file this
Certificate of Incorporation, do certify that the facts herein stated are true
and, accordingly, have hereto set my hand and seal this 5th day of March A. D.,
1984.
/s/ Frank J. Smith, Jr.
----------------------------------
Frank J. Smith, Jr.
Incorporator
RECEIVED FOR RECORD
Mar 6 1984
Leo J. Dugan, Jr., Recorder
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
A. T. Two, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That the Board of Directors of said corporation by the
unanimous written consent of its members, filed with the minutes of the Board,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of said corporation:
RESOLVED: That it is declared advisable to amend the Certificate of
Incorporation of this corporation by changing Article First so that,
as amended, said article shall be read as follows:
"The name of the corporation shall be James River Coal Terminal
Company."
FURTHER RESOLVED: That the Certificate of Incorporation be amended
further to delete the name A. T. Two, Inc. wherever same shall appear
and substitute therefor the name James River Coal Terminal Company.
SECOND: That in lieu of a meeting and vote of stockholder of
corporation, the stockholder thereof has given unanimous written consent to said
amendment in accordance with the applicable provisions of Sections 228 and 242
of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendments were duly adopted in accordance
with the applicable provisions of Sections 228 and 242 of the General
Corporation Law of the State of Delaware.
<PAGE>
2
IN WITNESS WHEREOF, said A. T Two, Inc. has caused its corporate seal
to be hereunto affixed and this certificate to be signed by Marc R. Solochek,
its Vice President, and attested by Roy F. Layman, its Assistant Secretary, this
5th day of April A. D., 1984.
ATTEST: A. T. TWO, INC.
/s/ Roy F. Layman /s/ Marc R. Solochek
- --------------------- ----------------------------
Roy F. Layman Marc R. Solochek
Assistant Secretary Vice President
(S E A L)
STATE OF WEST VIRGINIA )
) SS:
COUNTY OF CABELL )
BE IT REMEMBERED that on this 5th day of April, 1984, personally came
before me Marc R. Solochek of A. T. Two, Inc., a corporation of the State of
Delaware, party to the foregoing indenture, known to me to be his own act and
deed and the act and deed of said corporation; that the signature of the Vice
President is his own proper handwriting; and that the seal affixed is the common
or corporate seal of the said corporation; and that his act of sealing,
executing and delivering said indenture was duly authorized by resolution of the
Directors and Sole Stockholder of the said corporation.
Given under my hand and seal of office the day and year aforesaid.
/s/ Wanda Bluebaum
-----------------------------
Notary Public
My commission expires /s/ Wanda Bluebaum
-----------------------------
Commission for West Virginia
My Commission expires November 12, 1990
RECEIVED FOR RECORD
Apr 19 1984
LEO J. DUGAN, Jr., Recorder
<PAGE>
EXHIBIT 3.48
RESTATED BY-LAWS
OF
JAMES RIVER COAL TERMINAL COMPANY
(as amended August 16, 1990)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1990, shall be held on the second Tuesday in April if
<PAGE>
2
not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 A.M., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting, at which they shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
<PAGE>
3
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting
<PAGE>
4
at which a quorum shall be present or represented any business may be transacted
which might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer
period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice
<PAGE>
5
and without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than six (6). The first board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall
<PAGE>
6
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall
<PAGE>
7
be present. In the event of the failure of the stockholders to fix the time or
place of such first meeting of the newly elected board of directors, or in the
event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to
<PAGE>
8
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and
<PAGE>
9
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend
<PAGE>
10
or to authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
<PAGE>
11
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number
<PAGE>
12
of offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
<PAGE>
13
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose
<PAGE>
14
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the
<PAGE>
15
president and the board of directors, at its regular meetings, or when the board
of directors so requires, an account of all his transactions as treasurer and of
the financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
<PAGE>
16
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue,
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
<PAGE>
17
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting
<PAGE>
18
of stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting: provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognized the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
<PAGE>
19
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
<PAGE>
20
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The Company shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof) who was or is made, or threatened to be made, a party to
an action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether involving any actual or alleged breach of duty, neglect
or error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
<PAGE>
21
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is serving or
served in any capacity at the request of the Company, by reason of the fact that
he, his testator or intestate is or was a director or officer of the Company, or
is serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, incurred therein or in any appeal thereof.
(b) The Company shall indemnify other persons and reimburse the
expenses thereof, to the extent required by applicable law, and may indemnify
any other person to whom the Company is permitted to provide indemnification or
the advancement of expenses, whether pursuant to rights granted pursuant to, or
provided by, the Delaware General Corporation Law or otherwise.
(c) The Company shall, from time to time, reimburse or advance to any
person referred to in paragraph (a) the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in paragraph (a) above, upon receipt of a written
undertaking by or on behalf of such person to repay such amount(s) if a judgment
or other final adjudication adverse to the director or officer establishes that
(i) his acts were committed in bad faith or were the result of active and
deliberate dishonesty and, in either case, were material to the cause of action
so adjudicated, (ii) he personally gained in fact
<PAGE>
22
a financial profit or other advantage to which he was not legally entitled, or
(iii) his conduct was otherwise of a character such that Delaware law would
require that such amount(s) be repaid.
(d) Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred in clause (i), in any capacity shall be
deemed to be doing so at the request of the Company.
(e) Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article may elect
to have the right to indemnification (or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action, suit or proceeding, to the extent
permitted by applicable law, or on the basis of the applicable law in effect at
the time indemnification is sought.
(f) The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article (1) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
<PAGE>
23
(g) If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the company (including its Board
of Directors, independent legal counsel, or its stockholders) that the claimant
is not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or
<PAGE>
24
adoption of new by-laws be contained in the notice of such special meeting. If
the power to adopt, amend or repeal by-laws is conferred upon the board of
directors by the certificate of incorporation it shall not divest or limit the
power of the stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.49
CERTIFICATE OF INCORPORATION
OF
JUNIPER COAL COMPANY
* * * * *
1. The name of the corporation is Juniper Coal Company.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is One Thousand (1000) and the par value of each of such
shares is Ten Dollars and No Cents ($10.00), amounting in the aggregate to Ten
Thousand Dollars and No Cents ($10,000.00).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
- ---- ---------------
M. A. Brzoska 1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes 1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo 1209 Orange Street
Wilmington, Delaware 19801
The name and mailing address of each person, who is to serve as a director
until the first annual meeting of the stockholders or until a successor is
elected and qualified, is as follows:
NAME MAILING ADDRESS
- ---- ---------------
T. S. Hilton 701 Market Street, Suite 700,
St. Louis, MO 63101
C. G. Farrand 701 Market Street, Suite 700,
St. Louis, MO 63101
<PAGE>
2
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by statute,
the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the by-laws of
the corporation shall so provide.
9. The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
10. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 8th day of April, 1996.
M. A. Brzoska
------------------------------
K. A. Widdoes
------------------------------
L. J. Vitalo
------------------------------
<PAGE>
EXHIBIT 3.50
JUNIPER COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of St. Louis, State of Missouri, at such place as may
be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1997,
shall be held on the Tenth day of April, if not a legal holiday, and if a legal
holiday, then on the next secular day
<PAGE>
2
following, at 10:00 A.M., or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting, at which they shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president or
<PAGE>
3
secretary at the request in writing of a majority of the board of directors, or
at the request in writing of stockholders owning a majority in amount of the
entire capital stock of the corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for
<PAGE>
4
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt
<PAGE>
5
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be not less than one (1) nor more than three (3). The first board shall
consist of two (2) directors. Thereafter, within the limits above specified,
the number of directors shall be determined by resolution of the board of
directors or by the stockholders at the annual meeting. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
2 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may,
<PAGE>
6
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of
<PAGE>
7
directors, or as shall be specified in a written waiver signed by all of the
directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
one (1) days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any
<PAGE>
8
committee thereof may be taken without a meeting, if all members of the board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of any such
absent or disqualified member.
<PAGE>
9
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) of the General Corporation Law of Delaware fix any
of the preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation) adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors.
<PAGE>
10
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with
<PAGE>
11
postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors
may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
<PAGE>
12
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the
<PAGE>
13
duties of the president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The vice-presidents shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties
<PAGE>
14
and exercise the powers of the secretary and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by
<PAGE>
15
the board of directors (or if there be no such determination, then in the order
of their election) shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Section 2. Any of or all the signatures on a certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming
<PAGE>
16
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates or uncertificated shares, the board
of directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to
<PAGE>
17
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting: provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of
<PAGE>
18
incorporation, if any, may be declared by the board of directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
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19
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal by-
laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.51
CERTIFICATE OF INCORPORATION
OF
KAYENTA MOBILE HOME PARK, INC.
* * * * *
1. The name of the corporation is
KAYENTA MOBILE HOME PARK, INC.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is One Thousand (1,000) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
5. The board of directors is authorized to make, alter or repeal the
by-laws of the corporation. Election of directors need not be by written
ballot.
6. The name and mailing address of the incorporator is:
M. C. Kinnamon Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
8. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
<PAGE>
2
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 22nd day of August, 1994.
/s/ M. C. Kinnamon
---------------------------------------
M. C. Kinnamon
<PAGE>
EXHIBIT 3.52
KAYENTA MOBILE HOME PARK, INC.
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Flagstaff, State of Arizona, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1995, shall be held on May 15 if not a legal holiday, and if a legal holiday,
then on the next secular day following, at 10:00 A.M., or at such other date and
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than 10 nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not
<PAGE>
2
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
<PAGE>
3
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than two nor more than five. The first board shall
consist of two directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
<PAGE>
4
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on zero days' notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board two directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors
<PAGE>
5
or of any committee thereof may be taken without a meeting, if all members of
the board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board or
committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
<PAGE>
6
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholders, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
<PAGE>
7
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and
<PAGE>
8
shall perform like duties for the standing committees when required. He shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the board of directors, and shall perform such other duties
as may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act,
<PAGE>
9
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any office, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have ben
lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the
<PAGE>
10
person entitled thereto and the transaction shall be recorded upon the books of
the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
11
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or replaced or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.53
CERTIFICATE OF INCORPORATION
OF
MARTINKA COAL COMPANY
* * * * *
1. The name of the corporation is
MARTINKA COAL COMPANY
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal
in and deal with goods, wares and merchandise and personal property of every
class and description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights,
<PAGE>
2
licenses and privileges, inventions, improvements and processes, copyrights,
trademarks and trade names, relating to or useful in connection with any
business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital stock,
or any voting trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign government, or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
To borrow or raise money for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or
<PAGE>
3
assignment in trust of the whole or any part of the property of the corporation,
whether at the time owned or thereafter acquired, and to sell, pledge or
otherwise dispose of such bonds or other obligations of the corporation for its
corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest therein,
wherever situated, and to sell, convey, lease, exchange, transfer or otherwise
dispose of, or mortgage or pledge, all or any of the corporation's property and
assets, or any interest therein, wherever situated. In general, to possess and
exercise all the powers and privileges granted by the General Corporation Law of
Delaware or by any other law of Delaware or by this Certificate of Incorporation
together with any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct, promotion or attainment
of the business or purposes of the corporation.
The business and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in this
certificate of incorporation, but the business and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent business
and purposes.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000)
<PAGE>
4
and the par value of each of such shares is Ten Dollars ($10.00) amounting in
the aggregate to Ten Thousand Dollars ($10,000.00).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
J. L. Austin Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
M. C. Kinnamon Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
A. S. Wright Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the corporation.
To set apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace
<PAGE>
5
any absent or disqualified member at any meeting of the committee. The by-laws
may provide that in the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors, or in the by-laws of the
corporation, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or by-laws, expressly so provide, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance
of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in whole
or in part
<PAGE>
6
of money or property including shares of stock in, and/or other securities of,
any other corporation or corporations, as its board of directors shall deem
expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statues) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
<PAGE>
7
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 5th day of
May, 1992.
/s/ J.L. Austin
---------------------------
J. L. Austin Incorporator
/s/ M.C. Kinnamon
---------------------------
M. C. Kinnamon Incorporator
/s/ A. S. Wright
---------------------------
A. S. Wright Incorporator
<PAGE>
EXHIBIT 3.54
MARTINKA COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1993, shall be held on the first day of May if not a legal holiday, and if a
legal holiday, then on the next secular
<PAGE>
2
day following, at 10:00 A.M., or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute
<PAGE>
3
or by the certificate of incorporation, may be called by the president and shall
be called by the president or secretary at the request in writing of a majority
of the board of directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any
<PAGE>
4
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting
<PAGE>
5
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be one. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as
<PAGE>
6
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as
<PAGE>
7
shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written waiver
signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of
<PAGE>
8
directors or of any committee thereof may be taken without a meeting, if all
members of the board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of
<PAGE>
9
the board of directors to act at the meeting in the place of any such absent or
disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such
<PAGE>
10
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
<PAGE>
11
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
<PAGE>
12
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed
<PAGE>
13
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it
<PAGE>
14
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his
<PAGE>
15
transactions as treasurer and of the financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer
<PAGE>
16
or an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or
<PAGE>
17
destroyed. When authorizing such issue of a new certificate or certificates or
uncertificated shares, the board of directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent
<PAGE>
18
to corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting: provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of
<PAGE>
19
incorporation, if any, may be declared by the board of directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
<PAGE>
20
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.55
COPY OF ARTICLES OF INCORPORATION
---------------------------------
STATE OF ILLINOIS, )
)
) ss.
)
ST. CLAIR COUNTY. )
To CHARLES F. CARPENTIER, Secretary of State:
We, the undersigned,
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Address
Name Number Street City State
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Arthur S. Macke 517 South Main Street, Marissa,
Illinois
William A. Norton 227 Sunrise Drive, Marissa,
Illinois
Floyd W. Macke 117 South Grace St., Marissa,
Illinois
- --------------------------------------------------------------------------------
</TABLE>
being natural persons of the age of twenty-one years or more and subscribers to
the shares of the corporation to be organized pursuant hereto, for the purpose
of forming a corporation under "The Business Corporation Act" of the State of
Illinois, do hereby adopt the following Articles of Incorporation:
ARTICLE ONE
The name of the corporation is: MIDCO SUPPLY AND EQUIPMENT
CORPORATION
ARTICLE TWO
The address of its initial registered office in the State of Illinois is: R.
F. D. Street, in the Village of Marissa (Zone) County of St. Clair and the name
of its initial Registered Agent at said address is: William A. Norton.
ARTICLE THREE
The duration of the corporation is: Perpetual
ARTICLE FOUR
The purpose or purposes for which the corporation is organized are: For the sale
at wholesale and retail of mining supplies and equipment and to engage in the
general business of the purchase, sale and distribution of mining supplies,
machinery and
<PAGE>
2
equipment; to engage in activities which are necessary, suitable or convenient
for the accomplishment of that purpose or which are incidental thereto or are
connected therewith; and to conduct its business and carry out that purpose in
any State, Territory, District or Possession of the United States or in any
foreign country, to the extent not forbidden by law.
Paragraph 2: This Corporation shall have all the powers specified in Section 5
of the Business Corporation Act of 1933, as amended by the laws of 1957.
ARTICLE FIVE
Paragraph 1: The aggregate number of shares which the corporation is authorized
to issue is 500 divided into one classes. The designation of each class, the
number of shares of each class, and the par value, if any, of the shares of each
class, or a statement that the shares of any class are without par value, are as
follows:
Class Series Number of Par value per share or
statement (If any) Shares that are
without par value
Common 500 None
Paragraph 2: The preferences, qualifications, limitations, restrictions and the
special or relative rights in respect of the shares of each class are: The sale
of all assets of the corporation or its merger or consolidation with another or
other corporations shall not be deemed a dissolution of the corporation. Shares
in this corporation shall not be issued for consideration other than money or in
payment of a debt of the corporation without the unanimous consent of all the
share holders.
ARTICLE SIX
The class and number of shares which the corporation proposes to issue without
further report to the Secretary of State, and the consideration (expressed in
dollars) to be received by the corporation therefor, are:
Total consideration to be
Class of shares Number of shares received therefor, are:
Common 100 $5,000.00
$
$
<PAGE>
3
ARTICLE SEVEN
The corporation will not commence business until at least one thousand dollars
has been received as consideration for the issuance of shares.
ARTICLE EIGHT
The number of directors to be elected at the first meeting of the shareholders
is: Three
ARTICLE NINE
Paragraph 1: It is estimated that the value of all property to be owned by the
corporation for the following year wherever located will be $10,000.00.
Paragraph 2: It is estimated that the value of the property to be located
within the State of Illinois during the following year will be $10,000.00
Paragraph 3: It is estimated that the gross amount of business which will be
transacted by the corporation during the following year will be $500,000.00.
Paragraph 4: It is estimated that the gross amount of business which will be
transacted at or from places of business in the State of Illinois during the
following year will be $500,000.00
Arthur S. Macke
--------------------------
--------------------------
Floyd W. Macke Incorporators.
--------------------------
--------------------------
William A. Norton
OATH AND ACKNOWLEDGMENT
STATE OF ILLINOIS, )
) ss.
St. Clair County. )
I, Edward W. Clendenin, a Notary Public do hereby certify that on the 26th
day of September, 1959, Arthur S. Macke, William A. Norton, Floyd W. Macke
(Names of Incorporators)
personally appeared before me and being first duly sworn by me severally
acknowledged that they signed the foregoing document in the respective
capacities therein set forth and declared that the statements therein contained
are true.
<PAGE>
4
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
above written.
NOTARIAL SEAL /s/ Edward W. Clendenin
-------------------------------------
Notary Public
FILED
September 28 1959
-----------------
Sec'y of State.
<PAGE>
EXHIBIT 3.56
BY-LAWS
=======
OF
MIDCO SUPPLY AND EQUIPMENT CORPORATION
--------------------------------------
ARTICLE I
---------
OFFICES
The principal office of the corporation in the State of Illinois shall be
located in the City of Marissa and County of St. Clair. The corporation may
have such other offices, either within or without the State of Illinois, as the
business of the corporation may require from time to time.
The registered office of the corporation required by The Business
Corporation Act to be maintained in the State of Illinois may be, but need not
be, identical with the principal office in the State of Illinois, and the
address of the registered office may be changed from time to time by the board
of directors.
ARTICLE II
----------
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall
be held in April at such date and time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting at which they
shall elect by a plurality vote a board of directors and transact such other
business as may properly be brought before the meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may be
called by the president, by the board of directors or by the holders of not less
than one-fifth of all the outstanding shares of the corporation.
SECTION 3. PLACE OF MEETING. The board of directors may designate any
place, either within or without the State of Illinois, as the place of meeting
for any annual meeting or for any special meeting called by the board of
directors. A waiver of notice signed by all shareholders may designate any
place, either within or without the State of Illinois, as the place for the
holding of such meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the registered office of the
corporation in the State of Illinois, except as otherwise provided in Section 5
of this article.
SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the
place, day and hour of the meeting, and in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more
<PAGE>
2
than forty days before the date of the meeting, or in the case of a merger or
consolidation not less than twenty nor more than forty days before the meeting,
either personally or by mail, by or at the direction of the president, or the
secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the records of the corporation, with
postage thereon prepaid.
SECTION 5. MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall
meet at any time and place, either within or without the State of Illinois, and
consent to the holding of a meeting at such time and place, such meeting shall
be valid without call or notice, and at such meeting any corporate action may be
taken.
SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the board of directors of the corporation may provide that the
stock transfer books shall be closed for a stated period but not to exceed, in
any case, forty days. If the stock transfer books shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days, or in
the case of a merger or consolidation, at least twenty days, immediately
preceding such meeting. In lieu of closing the stock transfer books, the board
of directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than forty
days and, for a meeting of shareholders, not less than ten days, or in the case
of a merger or consolidation not less than twenty days, immediately preceding
such meeting. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the board of directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders.
SECTION 7. VOTING LISTS. The officer or agent having charge of the
transfer books for shares of the corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, with the
address of and the number of shares held by each, which list, for a period of
ten days prior to such meeting, shall be kept on file at the registered office
of the corporation and shall be subject to inspection by any shareholder at any
time during usual business
<PAGE>
3
hours. Such list shall also be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during
the whole time of the meeting. The original share ledger or transfer book, or a
duplicate thereof kept in this State, shall be prima facie evidence as to who
are the shareholders entitled to examine such list or share ledger or transfer
book or to vote at any meeting of share holders.
SECTION 8. QUORUM. A majority of the outstanding shares of the
corporation, represented in person or by proxy, shall constitute a quorum at any
meeting of shareholders; provided, that if less than a majority of the
outstanding shares are represented at said meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice.
If a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting shall be the act of the shareholders, unless the vote
of a greater number or voting by classes is required by The Business Corporation
Act, the articles of incorporation or these by-laws.
SECTION 9. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
SECTION 10. VOTING OF SHARES. Subject to the provisions of Section 12 of
this article, each outstanding share, regardless of class, shall be entitled to
one vote upon each matter submitted to vote at a meeting of shareholders.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine.
Shares standing in the name of a deceased person may be voted by his
administrator or executor, either in person or by proxy. Shares standing in the
name of a guardian, conservator, or trustee may be voted by such fiduciary,
either in person or by proxy, but no guardian, conservator, or trustee shall be
entitled, as such fiduciary, to vote shares held by him without a transfer of
such shares into his name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do be
contained in an
<PAGE>
4
appropriate order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
squares until the shares have been transferred into the name of the pledges, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but shares of its own
stock held by it in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding shares at any given time.
SECTION 12. CUMULATIVE VOTING. In all elections for directors, every
shareholder shall have the right to vote, in person or by proxy, the number of
shares owned by him, for as many persons as there are directors to be elected,
or to cumulate said shares, and give one candidate as many votes as the number
of directors multiplied by the number of his shares shall equal, or to
distribute them on the same principle among as many candidates as he shall see
fit.
SECTION 13. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
SECTION 14. VOTING BY BALLOT. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
ARTICLE III
-----------
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its board of directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. [...] of one or more
members as fixed from time to time by resolution of the board of directors or
the shareholders. Each director shall hold office until the next annual meeting
of shareholders or until his successor shall have been elected and qualified.
Directors need not be residents of Illinois or shareholders of the corporation.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of directors
shall be held without other notice than this by-law, immediately after, and at
the same place as, the annual
<PAGE>
5
meeting of shareholders. The board of directors may provide, by resolution, the
time and place, either within or without the State of Illinois, for the holding
of additional regular meetings without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the president or any two directors. The
person or persons authorized to call special meetings of the board of directors
may fix any place, either within or without the State of Illinois, as the place
for holding any special meeting of the board of directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at least
5 days previously thereto by written notice delivered personally or mailed to
each director at his business address, or by telegram. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any director may waive notice of any meeting. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 6. QUORUM. A majority of the number of directors fixed by these
by-laws shall constitute a quorum for transaction of business at any meeting of
the board of directors, provided, that if less than a majority of such number of
directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
SECTION 7. MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
SECTION 8. VACANCIES. Any vacancy occurring in the board of directors and
any directorship to be filled by reason of an increase in the number of
directors, may be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose.
SECTION 9. COMPENSATION. The board of directors, by the affirmative vote
of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise. By resolution of the board of directors the
<PAGE>
6
directors may be paid their expenses, if any, of attendance at each meeting of
the board.
SECTION 10. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the secretary of the corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
ARTICLE IV
----------
OFFICERS
SECTION 1. NUMBERS. The officers of the corporation shall be a president,
one or more vice-presidents (the number thereof to be determined by the board of
directors), a treasurer, and a secretary, and such assistant treasurers,
assistant secretaries or other officers as may be elected or appointed by the
board of directors. Any two or more offices may be held by the same person,
except the offices of president and secretary.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices filled at any meeting of the board of directors. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign or shall have been removed
in the manner hereinafter provided. Election or appointment of an officer or
agent shall not of itself create contract rights.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in its
judgment the best interests of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board
of directors for the unexpired portion of the term.
SECTION 5. PRESIDENT. The president shall be the principal executive
officer of the corporation and shall in general
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7
supervise and control all of the business and affairs of the corporation. He
shall preside at all meetings of the shareholders and of the board of
directors. He may sign, with the secretary or any other proper officer of the
corporation thereunto authorized by the board of directors, certificates for
shares of the corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the board of directors has authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the board of directors or by these by-laws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors from time to time.
SECTION 6. THE VICE-PRESIDENTS. In the absence of the president or in the
event of his inability or refusal to act, the vice-president (or in the event
there be more than one vice-president, the vice-presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. Any vice-president may sign, with the secretary or an assistant
secretary, certificates for shares of the corporation; and shall perform such
other duties as from time to time may be assigned to him by the president or by
the board of directors.
SECTION 7. THE TREASURER. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the board of directors shall determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the corporation; receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of Article V
of these by-laws; (b) in general perform all the duties incident to the office
of treasurer and such other duties as from time to time may be assigned to him
by the president or by the board of directors.
SECTION 8. THE SECRETARY. The Secretary shall: (a) keep the minutes of
the shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the provisions
of these by-laws; (d) keep a register of the post-office address of each
<PAGE>
8
shareholder which shall be furnished to the secretary by such shareholder; (e)
sign with the president, or a vice-president, certificates for shares of the
corporation, the issue of which shall have been authorized by resolution of the
board of directors; (f) have general charge of the stock transfer books of the
corporation; (g) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him by
the president or by the board of directors.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The assistant
treasurers shall respectively, if required by the board of directors, give bonds
for the faithful discharge of their duties in such sums and with such sureties
as the board of directors shall determine. The assistant secretaries as
thereunto authorized by the board of directors may sign with the president or a
vice-president certificates for shares of the corporation, the issue of which
shall have been authorized by a resolution of the board of directors. The
assistant treasurers and assistant secretaries, in general, shall perform such
duties as shall be assigned to them by the treasurer or the secretary,
respectively, or by the president or the board of directors.
SECTION 10. SALARIES. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the board of directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositaries as the board of directors may
select.
<PAGE>
9
ARTICLE VI
----------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of
the corporation shall be in such form as may be determined by the board of
directors. Such certificates shall be signed by the president or a vice-
president and by the secretary or an assistant secretary and shall be sealed
with the seal of the corporation. All certificates for shares shall be
consecutively numbered or otherwise identified. The name of the person to whom
the shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the books of the corporation. All certificates
surrendered to the corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that in case of a lost,
destroyed or mutilated certificate a new one may be issued therefor upon such
terms and indemnity to the corporation as the board of directors may prescribe.
SECTION 2. TRANSFERS OF SHARES. Transfers of shares of the corporation
shall be made only on the books of the corporation by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the secretary of the corporation, and on
surrender for cancellation of the certificate for such shares. The person in
whose name shares stand on the books of the corporation shall be deemed the
owner thereof for all purposes as regards the corporation.
ARTICLE VII
-----------
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors or the shareholders.
ARTICLE VIII
------------
DIVIDENDS
The board of directors may from time to time, declare, and the corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and its articles of incorporation.
ARTICLE IX
----------
SEAL
The board of directors shall provide a corporate seal which shall be in the
form of a circle and shall have inscribed thereon
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10
the name of the corporation and the words, "Corporate Seal, Illinois."
ARTICLE X
---------
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the provisions
of these by-laws or under the provisions of the articles of incorporation or
under the provisions of The Business Corporation Act of the State of Illinois, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE XI
----------
AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may be
adopted at any meeting of the board of directors of the corporation by a
majority vote of the directors present at the meeting.
<PAGE>
EXHIBIT 3.57
CERTIFICATE OF INCORPORATION
OF
MIDWEST COAL RESOURCES, INC.
* * * * *
1. The name of the corporation is
MIDWEST COAL RESOURCES, INC.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and
deal with goods, wares and merchandise and personal property of every class and
description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights,
<PAGE>
2
licenses and privileges, inventions, improvements and processes, copyrights,
trademarks and trade names, relating to or useful in connection with any
business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive, hold,
own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise
dispose of or deal in and with any of the shares of the capital stock, or any
voting trust certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign government, or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
To borrow or raise money for any of the purposes of the corporation and,
from time to time without limit as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the interest
thereon by mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the corporation, whether at the time owned
or thereafter acquired, and to sell, pledge or otherwise dispose of such bonds
or other obligations of the corporation for its corporate purposes.
<PAGE>
3
To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with real or personal property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of the corporation's property and assets,
or any interest therein, wherever situated. In general, to possess and exercise
all the powers and privileges granted by the General Corporation Law of Delaware
or by any other law of Delaware or by this Certificate of Incorporation together
with any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
or purposes of the corporation.
The business and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this certificate of
incorporation, but the business and purposes specified in each of the foregoing
clauses of this article shall be regarded as independent business and purposes.
4. The total number of shares of stock which the corporation shall have
authority to issue is one thousand (1,000) and the par value of each of such
shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
5. The name and mailing address of each incorporator is as follows:
<PAGE>
4
NAME MAILING ADDRESS
- -----------------------------------------------------------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and
personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. The by-laws may provide that in the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum,
<PAGE>
5
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or by-laws, expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute, to
sell, lease or exchange all or substantially all of the property and assets of
the corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the by-
laws of the corporation shall so provide.
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6
9. Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
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7
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 1st day of July, 1992.
/s/ M. A. Brzoska
-----------------------------------
M. A. Brzoska, Incorporator
/s/ K. A. Widdoes
-----------------------------------
K. A. Widdoes, Incorporator
/s/ L. J. Vitalo
-----------------------------------
L. J. Vitalo, Incorporator
<PAGE>
EXHIBIT 3.58
MIDWEST COAL RESOURCES, INC.
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of St. Louis, State of Missouri, at such place as may
be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1993,
shall be held on the first day of May if not a legal
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2
holiday, and if a legal holiday, then on the next secular day following, at
10:00 A.M., or at such other date and time as shall be designated from time to
time by the board of directors and stated in the notice of the meeting, at which
they shall elect by a plurality vote a board of directors, and transact such
other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by
<PAGE>
3
the certificate of incorporation, may be called by the president and shall be
called by the president or secretary at the request in writing of a majority of
the board of directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as
<PAGE>
4
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would
<PAGE>
5
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be three. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at
<PAGE>
6
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of
<PAGE>
7
directors, or as shall be specified in a written waiver signed by all of the
directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
one day's notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting, if all members of
<PAGE>
8
the board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board or
committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporations. The board may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of any such
absent or disqualified member.
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the
<PAGE>
9
powers and authority of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to amending the certificate of
incorporation, (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation) adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors.
<PAGE>
10
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given
<PAGE>
11
in writing, by mail, addressed to such director or stockholder, at his address
as it appears on the records of the corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their
<PAGE>
12
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
<PAGE>
13
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to
<PAGE>
14
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance
<PAGE>
15
of the duties of his office and for the restoration to the corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a written
notice containing the information required to be set forth or stated on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that
the corporation will
<PAGE>
16
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim
<PAGE>
17
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days
<PAGE>
18
prior to any other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stock holders shall apply to any
adjournment of the meeting: provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for
<PAGE>
19
dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive to
the interest of the corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing
<PAGE>
20
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.59
CERTIFICATE OF INCORPORATION
OF
NUEAST MINING CORP.
* * * * * *
1. The name of the corporation is NUEAST MINING CORP.
2. The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is One Hundred (100) and the par value of each of such
shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars
($100.00).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Robert K. Bennett c/o C T Corporation System
Oliver Building, Mellon Sq.
Pittsburgh, PA 15222
Denise Bagnato c/o C T Corporation System
Oliver Building, Mellon Sq.
Pittsburgh, PA 15222
David C. Holets c/o C T Corporation System
Oliver Building, Mellon Sq.
Pittsburgh, PA 15222
6. The corporation is to have perpetual existence.
<PAGE>
2
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
9. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that
<PAGE>
3
this is our act and deed and the facts herein stated are true, and accordingly
have hereunto set our hands this 22 day of June, 1984.
/s/ Robert K. Bennett
---------------------
Robert K. Bennett
/s/ Denise Bagnato
---------------------
Denise Bagnato
/s/ David C. Holets
---------------------
David C. Holets
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * * *
NUEAST MINING CORP., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation by the
unanimous written consent of its members, filed with the minutes of the Board
adopted a resolution proposing and declaring advisable the following amendments
to the Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of
NUEAST MINING CORP. be amended by changing the
article 1 thereof so that, as amended, said
article shall be and read as follows:
"1. the name of the corporation is
MOUNTAIN VIEW COAL COMPANY"
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation law of the State of Delaware.
<PAGE>
2
IN WITNESS WHEREOF, said NUEAST MINING CORP. has caused this
certificate to be signed by its President, this 12th day of October, 1994.
NUEAST MINING CORP.
By /s/ Dennis L. Stevenson
------------------------------
Dennis L. Stevenson, President
ATTEST:
/s/ Thomas R. Gallagher
- --------------------------------
Thomas R. Gallagher - Secretary
<PAGE>
EXHIBIT 3.60
NUEAST MINING CORP.
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Pittsburgh, State of Pennsylvania, at
such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1984, shall be held on the second Thursday of April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and
<PAGE>
2
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
<PAGE>
3
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time,
<PAGE>
4
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
At all elections of directors of the corporation each stockholder
having voting power shall be entitled to exercise the
<PAGE>
5
right of cumulative voting as provided in the certificate of incorporation.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than ten (10). The first board
shall consist of one (l) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article,
<PAGE>
6
and each director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
<PAGE>
7
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one (1) days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings
<PAGE>
8
shall be called by the president or secretary in like manner and on like notice
on the written request of the sole director.
Section 8. At all meetings of the board a majority directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such
<PAGE>
9
participation in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights
<PAGE>
10
of such shares relating to dividends, redemption, dissolution, any distribution
of assets of the corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the same
or any other class or classes of stock of the corporation) adopting an agreement
of merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of
<PAGE>
11
directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether
<PAGE>
12
before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the
<PAGE>
13
board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
14
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
<PAGE>
15
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such
<PAGE>
16
determination, then in the order of their election) shall, in the absence of the
treasurer or in the event of his inability or refusal to act, perform the duties
and exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Upon the face or back of each stock certificate issued to represent
any partly paid shares, or upon the books and records of the corporation in the
case of uncertificated partly paid shares, shall be set forth the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the
<PAGE>
17
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect
<PAGE>
18
as if he were such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions
<PAGE>
19
from the registered owner of uncertificated shares such uncertificated shares
shall be cancelled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be
<PAGE>
20
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full
<PAGE>
21
and clear statement of the business and condition of the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors
<PAGE>
22
or at any special meeting of the stockholders or of the board of directors if
notice of such alteration, amendment, repeal or adoption of new by-laws be
contained in the notice of such special meeting. If the power to adopt, amend
or repeal by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
23
Amendment of Bylaws
-------------------
RESOLVED, That Section 2 of Article II of the Bylaws of the Company is repealed
in its entirety and the following provision substituted is lieu thereof.
"Section 2. The annual meeting of the stockholders, commencing with
the year 1988, shall be held in April, at such time as shall be determined by
the Board of Directors, for the purpose of electing directors, and for the
transaction of such other business as may be brought before the meeting."
<PAGE>
EXHIBIT 3.61
Filed in the office
of Secretary of State
of West Virginia, this
date: ________________
ARTICLES OF INCORPORATION
OF
NORTH PAGE COAL CORP.
The undersigned, acting as incorporator of a corporation under Section 27,
Article 1, Chapter 31 of the Code of West Virginia adopts the following Articles
of Incorporation for such corporation, FILED IN DUPLICATE:
------------------
I. The undersigned agrees to become a corporation by the name of
NORTH PAGE COAL CORP.
II. The address of the principal office of said corporation will be
located at One PPG Place, in the City of Pittsburgh, in the County of Allegheny,
and State of Pennsylvania 15222.
The address of the principal place of business of said corporation
will be located at Post office Box 90, in the City of Beckley, in the County of
Raleigh, State of West Virginia 25801.
III. The purpose or purposes for which this corporation is formed are
as follows:
To transact any or all lawful business for which corporations may be
incorporated under the corporation laws of the State of West Virginia.
A. The Corporation shall indemnify each member of the Board and each
officer of the Corporation now or hereafter serving as such, who was, is or is
threatened to be made a party to any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative
<PAGE>
2
(including an action by, or in the right of, the Corporation), by reason of the
fact that he is or was a Board member, officer, or agent of the Corporation or
is or was serving at the request of the Corporation as a Board member, officer
or agent of another corporation, partnership, joint venture, trust or other
enterprise.
B. Said indemnification shall be against expenses (including
attorney's fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by the aforementioned individuals in connection with such
action, suit or proceeding, including any appeal thereof, if they acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interest of the Corporation.
C. No indemnification shall be made in respect to any claim, issue,
or matter as to which such person shall have been adjudged in such action, suit
or proceeding to be liable for gross negligence or wilful misconduct in the
performance of his duties to the Corporation, except to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability and in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses that such court shall deem proper. Indemnity with respect to any
criminal action or proceeding will be provided only when the Board member or
officer had no reasonable cause to believe his act was unlawful.
D. The amount paid to any Board member, officer or agent of the
Corporation by way of indemnification shall not exceed the actual, reasonable
and necessary expenses incurred in
<PAGE>
3
connection with the matter involved. The foregoing right of indemnification
shall be in addition to but not exclusive of, any other right to which such
Board member, or officer of the Corporation may otherwise be entitled by law.
E. The Board of Directors of this Corporation may, from time to
time, in its discretion, declare and pay cash dividends from any reserves for
mineral depletion maintained by the Corporation. Such dividends must be
identified as a distribution of such reserves, and at the time of distribution
the amount per share being paid from such reserves must be disclosed to each
shareholder receiving such dividends.
IV. No shareholder or other person shall have any preemptive right
whatsoever.
V. Provisions for the regulation of the internal affairs of the
corporation are: None.
VI. The amount of the total authorized capital stock of said
corporation shall be Twenty Thousand Dollars ($20,000.00), which shall be
divided into Twenty Thousand (20,000) shares of the par value of One Dollar
($1.00) each.
VII. The full name and address of the incorporator is:
NAME ADDRESS
- ---- -------
David Allen Barnette P.O. Box 553
Charleston, WV 25322
VIII. The existence of this corporation is to be perpetual.
IX. No person to whom notice or process may be sent has been
designated.
<PAGE>
4
X. The number of directors constituting the initial board of
directors of the corporation is one and the name and address of the person who
shall serve as director until the first annual meeting of shareholders or until
his successor is elected and shall qualify is:
NAME ADDRESS
- ---- -------
John W. Hancock One PPG Place
Pittsburgh, PA 15222
THE UNDERSIGNED, for the purpose of forming a corporation under the
laws of the State of West Virginia, does make and file this Articles of
Incorporation, and I have accordingly hereto set my hand this 3rd day of March,
1986.
/s/ David Allen Barnette
-------------------------------
David Allen Barnette
Articles of Incorporation prepared by:
David Allen Barnette
JACKSON, KELLY, HOLT & O'FARRELL
1600 Laidley Tower
P.O. Box 553
Charleston, West Virginia 25322
<PAGE>
EXHIBIT 3.62
BYLAWS
OF
NORTH PAGE COAL CORP.
ARTICLE I. OFFICES
The principal offices of the Corporation shall be located in the City
of Pittsburgh, County of Allegheny, State of Pennsylvania. The Corporation may
have such other offices, either within or without the State of West Virginia, as
the Board of Directors may designate or as the business of the Corporation may
require from time to time.
ARTICLE II. SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders
--------------
shall be held on the second Thursday in the month of April in each year, at the
hour of 2:00 P.M., local time, or at such other time on such other day within
such month as shall be fixed by the Board of Directors, for the purpose of
electing directors and for the transaction of such other business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of the principal office of the corporation, such meeting
shall be held on the next succeeding business day.
Section 2. Special Meetings. Special meetings of the shareholders,
----------------
for any purpose or purposes, may be called by the Chairman of the Board, if any,
President, Secretary, or by the Board of Directors, and shall be called by the
President at the request of the holders of not less than one-tenth of all out
standing shares of the Corporation entitled to vote at the meeting.
Section 3. Place of Meeting. The Board of Directors may designate
----------------
any place, either within or without the State of West Virginia, as the place of
meeting for any annual meeting or for any special meeting called by the Board of
Directors. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal office of the Corporation.
Section 4. Notice of Meeting. Written notice stating the place, day
-----------------
and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
nor more than fifty days before the date of the meeting, either personally or by
mail, by or at the direction of the Chairman of the Board, President, Secretary
or the officer or other persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid.
<PAGE>
2
Section 5. Closing of Transfer Books or Fixing of Record Date. For
--------------------------------------------------
the purpose of determining shareholders entitled to notice of or vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
Corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty days. If the stock transfer
books shall be closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such books shall be closed
for at least ten days immediately preceding such meeting. In lieu of closing
the stock transfer books, the Board of Directors may fix in advance a date as
the record date for any such determination of shareholders, such date in any
case to be not more than fifty days and, in case of a meeting of shareholders,
not less than ten days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If the stock
transfer books are not closed and no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders,
or shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the Board
of Directors declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 6. Voting Record. The officer or agent having charge of the
-------------
stock transfer books for shares of the Corporation shall make a complete record
of the shareholders entitled to vote at each meeting of shareholders or any
adjournment thereof, arranged in alphabetical order, with the address of and the
number of shares held by each. Such record shall be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting for the purposes thereof.
Section 7. Quorum. A majority of the outstanding shares of the
------
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a majority of
the outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice.
At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. The shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 8. Proxies. At all meetings of shareholders, a shareholder
-------
may vote in person or by proxy executed in writing by
<PAGE>
3
the shareholder or by his duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary of the Corporation before or at the time of the
meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
Section 9. Voting of Shares. Subject to the provisions of Section 12
----------------
of this Article II, each outstanding share entitled to vote shall be entitled to
one vote upon each matter submitted to a vote at a meeting of shareholders.
Section 10. Voting of Shares by Certain Holders. Shares standing in
-----------------------------------
the name of another corporation may be voted by such officer, agent or proxy as
the bylaws of such corporation may prescribe, or, in the absence of such
provision, as the Board of Directors of such other corporation may determine.
Shares held by an administrator, executor, guardian, committee,
curator, or conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing in the name of
a trustee may be voted by him, either in person or by proxy, but no trustee
shall be entitled to vote shares held by him without a transfer of such shares
into his name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledges, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Neither treasury shares of its own stock held by the Corporation, nor
shares held by another corporation if a majority of the shares entitled to vote
for the election of directors of such other corporation are held by the
Corporation, shall be voted at any meeting or counted in determining the total
number of outstanding shares at any given time for purposes of any meeting.
Section 11. Informal Action by Shareholders. Any action required or
-------------------------------
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof.
Section 12. Cumulative Voting. At each election for directors every
-----------------
shareholder entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by him for as many persons as
there are directors to be
<PAGE>
4
elected and for whose election he has a right to vote, or to cumulate his votes
by giving one candidate as many votes as the number of such directors multiplied
by the number of his shares shall equal, or by distributing such votes on the
same principle among any number of such candidates.
ARTICLE III. BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
--------------
Corporation shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of
---------------------------------
directors of the Corporation shall be not less than one nor more than ten. Each
director shall hold office until the next annual meeting of shareholders and
until his successor shall have been elected and qualified. Directors need not
be residents of the State of West Virginia, or shareholders of the corporation.
Section 3. Regular Meetings. A regular meeting of the Board or
----------------
Directors shall be held without other notice than this bylaw immediately after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of West Virginia, for the holding of additional regular
meetings without other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board of
----------------
Directors may be called by or at the request of the Chairman of the Board, if
any, the President or any two directors. The person or persons authorized to
call special meetings of the Board of Directors may fix any place, either within
or without the State of West Virginia, as the place for holding any special
meeting of the Board of Directors called by them.
Section 5. Notice. Notice of any special meeting shall be given at
------
least three days previously thereto by written notice delivered personally or
mailed to each director at his business address, or by telegram. If mailed at
least five days prior to the date of meeting, such notice shall be deemed to be
delivered when deposited in the United States mail, so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegraph company. Any
director may waive notice of any meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting, except as otherwise provided by
statute.
Section 6. Quorum. A majority of the number of directors fixed by
------
Section 2 of this Article III shall constitute
<PAGE>
5
a quorum for the transaction of business at any meeting of the Board of
Directors, but if less than such majority is present at a meeting a majority of
the directors present may adjourn the meeting from time to time without further
notice.
Section 7. Manner of Acting. The act of the majority of the
----------------
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 8. Action Without a Meeting. Any action required or
------------------------
permitted to be taken by the Board of Directors at a meeting may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors.
Section 9. Vacancies. Any vacancy occurring in the Board of
---------
Directors may be filled by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase
in the number of directors may be filled by election by the Board of Directors
for a term of office continuing only until the next election of directors by the
shareholders.
Section 10. Compensation. By resolution of the Board of Directors,
------------
each director may be paid his expenses, if any, of attendance at each meeting of
the Board of Directors, or committee thereof, and may be paid a stated salary as
director or a fixed sum for attendance at each meeting of the Board of Directors
or committee thereof or both. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 11. Presumption of Assent. A director of the corporation who
---------------------
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as the
Secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the Corporation immediately after
the adjournment of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
ARTICLE IV. OFFICERS
Section 1. Number. The officers of the Corporation shall be a
------
President, one or more Vice Presidents (the number thereof to be determined by
the Board of Directors), a Secretary, and a Treasurer, each of whom shall be
elected by the Board of Directors. A Chairman of the Board of Directors and
such other officers and assistant officers as may be deemed necessary may be
<PAGE>
6
elected or appointed by the Board of Directors. Any two or more offices may be
held by the same person, except the offices of President and Secretary. The
President and the Chairman of the Board, if any, shall be elected from the
membership of the Board of Directors.
Section 2. Election and Term of Office. The officers of the
---------------------------
Corporation to be elected by the Board of Directors shall be elected annually by
the Board of Directors at the first meeting of the Board of Directors held after
each annual meeting of the shareholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his death or until he
shall resign or shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent may be removed by the Board
-------
of Directors whenever in its judgment the best interests of the Corporation will
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an officer
or agent shall not of itself create contract rights.
Section 4. Vacancies. A vacancy in any office because of death,
---------
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 5. Chairman of the Board and President. The Chairman of the
-----------------------------------
Board or the President, as the Board of Directors may from time to time
determine, shall be the principal executive officer of the Corporation. The
principal executive officer of the Corporation shall in general supervise and
control all of the business and affairs of the Corporation, subject to the
control of the Board of Directors. He shall, when present, preside at all
meetings of the shareholders. Whether the Chairman of the Board or the
President be designated as the principal executive officer of the Corporation
the other shall, in the absence or incapacity of the principal executive officer
or by his authority may, exercise any of the powers of the principal executive
officer. The Chairman of the Board or the President may sign deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and executing
thereof shall be expressly delegated by the Board or by these bylaws to some
other officer or agent of the Corporation, or shall be required by law to be
otherwise signed or executed. The Chairman of the Board and the President shall
each, in general, perform all duties incident to their respective offices and
shall perform such other duties as may be prescribed by the Board of Directors
from time to time.
Section 6. The Vice Presidents. In the absence of the Chairman of
-------------------
the Board and President or in the event of their death,
<PAGE>
7
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated at the time
of their election, or in the absence of any designation, then in the order of
their election) shall perform the duties of the Chairman of the Board and
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Chairman of the Board and President. Any Vice
President may sign, with the Secretary or an Assistant Secretary, certificates
for shares of the Corporation; and shall perform such other duties as from time
to time may be assigned to him by the principal executive officer of the
Corporation, the bylaws or the Board of Directors.
Section 7. The Secretary. The Secretary shall: (a) keep the minutes
-------------
of the proceedings of the shareholders and of the Board of Directors in one or
more books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the Corporation and see
that the seal of the Corporation is affixed to all documents the execution of
which on behalf of the Corporation under its seal is duly authorized; (d) keep a
register of the post office address of each shareholder which shall be furnished
to the Secretary by such shareholder; (e) sign with the President, or a Vice
President, certificates for shares of the Corporation, the issuance of which
shall have been authorized by resolution of the Board of Directors; (f) have
general charge of the stock transfer books of the Corporation; and (g) in
general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the principal executive
officer of the Corporation, the bylaws or by the Board of Directors.
Section 8. The Treasurer. The Treasurer shall: (a) have charge and
-------------
custody of and be responsible for all funds and securities of the Corporation;
(b) receive and give receipts for moneys due and payable to the Corporation from
any source whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositaries as shall be
selected in accordance with the provisions of Article V of these bylaws; and (c)
in general perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the principal
executive officer of the Corporation, the bylaws or by the Board of Directors.
If required by the Board of Directors, the Treasurer shall give a bond for the
faithful discharge of his duties in such sum and with such surety or sureties as
the Board of Directors shall determine.
Section 9. Assistant Secretaries and Assistant Treasurers. The
----------------------------------------------
Assistant Secretaries, when authorized by Directors, may sign with the President
or a Vice President certificates for shares of the Corporation the issuance of
which shall have been authorized by a resolution of the Board of Directors. The
Assistant Treasurers shall respectively, if required by the Board of Directors,
give bonds for the faithful
<PAGE>
8
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine. The Assistant Secretaries and Assistant Treasurers,
in general, shall perform such duties as shall be assigned to them by the
Secretary or the Treasurer, respectively, or by the principal executive officer
of the Corporation, the bylaws or by the Board of Directors.
Section 10. Officers' Salaries. The salaries of the officers shall
------------------
be fixed from time to time by the Board of Directors and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the Corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any
---------
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
-----
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances. The Board of Directors may encumber
and mortgage real estate and pledge, encumber and mortgage stocks, bonds and
other securities and other personal property of all types, tangible and
intangible, and convey any such property in trust to secure the payment of
corporate obligations.
Section 3. Checks, Drafts, etc. All checks, drafts or other orders
-------------------
for the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not otherwise
--------
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositaries as the Board of Directors
may select.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. Certificates representing shares
-----------------------
of the Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary and sealed with the
Corporate Seal or a facsimile thereof. The signatures of such officers upon a
certificate may be facsimiles if the certificate is manually signed on behalf of
a transfer agent or a registrar, other than the Corporation itself or one of its
employees. Each certificate for shares shall be consecutively numbered or
otherwise identified.
<PAGE>
9
The name and address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
stock transfer books of the Corporation. All certificates surrendered to the
Corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and indemnity to
the Corporation as the Board of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the Corporation
------------------
shall be made only on the stock transfer books of the Corporation by the holder
of record thereof or by his legal representative, who shall furnish proper
evidence of authority to transfer, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the Corporation,
and on surrender for cancellation of the certificate for such shares. The
person in whose name shares stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes.
Section 3. Lost Certificates. Any person claiming a certificate of
-----------------
shares to be lost or destroyed shall make an affidavit or affirmation of that
fact, and if requested to do so by the Board of Directors of the Corporation
shall advertise such fact in such manner as the Board of Directors may require,
and shall give the Corporation a bond of indemnity in such sum as the Board of
Directors may direct, but not less than double the value of shares represented
by such certificate, in form satisfactory to the Board of Directors and with or
without sureties as the Board of Directors may prescribe; whereupon the
President and the Secretary may cause to be issued a new certificate of the same
tenor and for the same number of shares as the one alleged to have been lost or
destroyed, but always subject to the approval of the Board of Directors.
Section 4. Stock Transfer Books. The stock transfer books of the
--------------------
Corporation shall be kept in the principal office of the Corporation and shares
shall be transferred under such regulations as may be prescribed by the Board of
Directors.
ARTICLE VII. FISCAL YEAR
The fiscal year of the Corporation may be fixed and may be changed
from time to time by resolution of the Board of Directors. Until the Board of
Directors has acted to fix such fiscal year, the fiscal year of the Corporation
shall begin on the first day of January and end on the thirty-first day of
December in each year.
<PAGE>
10
ARTICLE VIII. DIVIDENDS
The Board of Directors may, from time to time, declare and the
Corporation may pay dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its Articles of Incorporation.
ARTICLE IX. CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the Corporation
and the state of incorporation and the words "Corporate Seal".
ARTICLE X. WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or
director of the Corporation under the provisions of these bylaws or under the
provisions of the Articles of Incorporation or by law, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice.
ARTICLE XI. AMENDMENTS
These bylaws may be altered, amended or repealed and new bylaws may be
adopted by the Board of Directors at any regular or special meeting.
ARTICLE XII. VOTING SHARES OF OTHER CORPORATIONS
Unless otherwise ordered by the Board of Directors, shares in other
corporations held by this Corporation may be voted by the Chairman of the Board
or the President of this Corporation.
<PAGE>
11
NORTH PAGE COAL CORP.
Amendment of Bylaws
-------------------
RESOLVED, That Section 1 of Article II of the Bylaws of the Company is repealed
in its entirety and the following provision substituted in lieu thereof.
"Section 1. The annual meeting of the shareholders, commencing with
the year 1988, shall be held in April, at such time as shall be determined by
the Board of Directors, for the purpose of electing directors, and for the
transaction of such other business as may be brought before the meeting."
<PAGE>
EXHIBIT 3.63
ARTICLES OF INCORPORATION
OF
OHIO COUNTY COAL COMPANY
------------------------
KNOW ALL MEN BY THESE:
That I, David L. Roberts, Old Highway 813, Mortons Gap, Kentucky, do hereby
form a Corporation under the Kentucky Business Corporation Act.
ARTICLE I
---------
The corporation hereby organized shall be named and known as OHIO COUNTY
COAL COMPANY.
ARTICLE II
----------
The Initial Registered Office of the corporation shall be Laffoon Trail,
Madisonville, Kentucky 42431; and the name and address of the initial registered
agent of the corporation is David L. Roberts, Laffoon Trail, Madisonville,
Kentucky 42431. The mailing address of the Corporation's principal office is P.
O. Box 561, Madisonville, Kentucky 42431.
ARTICLE III
-----------
The corporation shall have all of the powers bestowed upon business
corporations under the provisions of the Kentucky Business Corporation Act now
in force and effect, and as hereafter amended.
ARTICLE IV
----------
1. The total number of shares of stock which the corporation shall be
authorized to issue is 1,000 shares of common stock of a par value of One
Hundred ($100.00) Dollars
<PAGE>
2
each, which common stock shall be the only type or kind of stock to be issued by
the corporation.
2. Holders of the common stock of the corporation of record on the books
of the corporation shall be entitled to one (1) vote for each share of stock so
held.
ARTICLE V
---------
The name and place of residence of the incorporator is
as follows:
NAME ADDRESS
---- -------
David L. Roberts Old Highway 813
Mortons Gap, KY
ARTICLE VI
----------
The affairs of the corporation shall be managed by a Board of Directors
consisting of such number of persons as may be established by the Bylaws of the
Corporation.
ARTICLE VII
-----------
The Board of Directors of the corporation shall be the governing body of
the corporation and shall have the power and authority to prescribe such rules
and regulations as may be necessary for the government of the activities of the
corporation, not inconsistent with the Laws of the Commonwealth of Kentucky, or
the By-Laws of the corporation.
ARTICLE VIII
------------
1. Personal liability of Directors to the Corporation for monetary damages
for breach of duties as a Director is expressly eliminated, except with respect
to those specific instances enumerated in KRS 271B.2-020 2(d) 1, 2, 3 and 4.
2. Directors of this Corporation shall be indemnified by the Corporation
in all cases in which a Director is made a
<PAGE>
3
party to a proceeding to the extent, and in the manner, provided in KRS 271 B.
8-510 and KRS 271 B. 1 -520.
IN TESTIMONY WHEREOF, witness the signature of the incorporator on this
11th day of December, 1989.
/s/ David L. Roberts
-------------------------------
David L. Roberts
STATE OF KENTUCKY)
) SCT.
COUNTY OF HOPKINS)
I, Julie Sellers, a Notary Public within and for the county and state
aforesaid, do hereby certify that the foregoing Articles of Incorporation of
OHIO COUNTY COAL COMPANY, were on this day produced to me in my county by David
L. Roberts and Paul E. Roberts, who executed and acknowledged the same before me
to be his act and deed in due form of law.
Given under my hand and notarial seal on this 11th day of December, 1989.
/s/ Julie Sellers
------------------------------
Notary Public,
My Commission Expires:1-2-90
------
The foregoing instrument was prepared
by William A. Logan, Attorney at Law,
Madisonville, Kentucky:
/s/ William A. Logan
- --------------------------------
<PAGE>
EXHIBIT 3.64
BY-LAWS OF
OHIO COUNTY COAL COMPANY
------------------------
ARTICLE I
---------
Corporate Offices
Section 1. The principal office of the corporation in the
Commonwealth of Kentucky shall be located in the City of Madisonville, County of
Hopkins. The corporation may have such other offices, either within or without
the Commonwealth of Kentucky, as the Board of Directors may designate or as the
business of the corporation may require from time to time.
ARTICLE II
----------
Stockholders
Section 1. Annual Meeting -- The annual meeting of the stockholders
of the corporation shall be held at the principal office of the corporation at
Madisonville, Kentucky, on the last Tuesday in December in each year (or, if
said day be a legal holiday, then on the next succeeding day not a holiday),
beginning with the year 1990, at 7:00 o'clock in the evening, for the purpose of
electing directors and for the transaction of such other business as may
properly be brought before the meeting. In the event that such annual meeting is
omitted by oversight or otherwise, on the day and at the time herein provided
for, meeting in lieu thereof to be held as soon thereafter as conveniently may
be, upon ten (10) day's written notice, which notice shall state the time and
place and the objects for which such meeting is called. Any business transacted
or elections
<PAGE>
2
held at such meeting shall be as valid as if transacted or held at the annual
meeting.
Section 2. Special Meetings -- Special meetings of the stockholders
may be called at any time by the Board of Directors. At any time, upon written
request of any director, or of any stockholder or stockholders holding in the
aggregate twenty (20%) percent of the voting power of all stockholders, it shall
be the duty of the Secretary to call a special meeting of the stockholders, to
be held at the registered office at such time as the Secretary may fix, not less
than ten (10) nor more than thirty-five (35) days after the receipt of said
request, and if the Secretary shall neglect or refuse to issue said call, the
director, or stockholder or stockholders, making the request may do so.
Section 3. Notices -- Written notice of the time, place, and purpose
of the annual meeting shall be given to all stockholders entitled to vote at
such meeting, at least ten (10) days prior to the day named for the meeting.
Notice shall be mailed to a stockholder at his address appearing on the books of
the corporation, unless he shall have filed with the Secretary of the
corporation a written request that notice intended for him be mailed to some
other address, in which case it shall be mailed to the address designated in
such request.
Written notice of the time, place, and purpose of a special meeting of
stockholders shall be mailed at least three (3) days prior to such meeting, to
each stockholder of record entitled to vote.
<PAGE>
3
Section 4. Voting Rights -- Each stockholder entitled to vote at any
meeting shall have one (1) vote, in person or by proxy duly authorized in
writing and filed with the Secretary of the corporation, for each share of stock
registered in his name on the books of the corporation. The validity of every
unrevoked proxy shall cease eleven (11) months after the date of its execution,
unless some other definite period of validity shall be expressly provided
therein, but in no event shall a proxy, unless coupled with interest, be voted
on after three (3) years from the date of its execution. The revocation of a
proxy shall not be effective until the Secretary of the corporation has received
notice of such revocation.
Cumulative voting shall be permitted only in the election for
directors of the corporation.
Section 5. Waiver of Notice -- Notice of any shareholders' meeting
may be waived in writing by any shareholder at any time before or after the
meeting.
Section 6. Quorum of Stockholders -- The presence, in person or by
proxy, of the holders of a majority of the voting power of all stockholders,
shall constitute a quorum, and the stockholders present at a duly organized
meeting can continue to do business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
<PAGE>
4
ARTICLE III
-----------
Directors
Section 1. General Powers -- The business and affairs of the
corporation shall be managed by its Board of Directors.
Section 2. Number, Tenure, and Qualifications -- The Board of
Directors of the corporation shall consist of not less than three (3) nor more
than five (5) persons, with three (3) directors to initially constitute the
Board of Directors. Directors shall hold office until the annual meeting of the
stockholders next ensuing after their election and until their respective
successors are elected and have accepted the election. Directors need not be
stockholders. The number of directors to be elected shall be determined by the
stockholders at each annual meeting or at any special meeting called for such
purposes.
Section 3. Regular Meetings -- A regular meeting of the Board of
Directors shall be held without other notice than this By-Law immediately after
and at the same place as the annual meeting of the stockholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the Commonwealth of Kentucky, for the holding of additional regular
meetings, without other notice than such resolution.
Section 4. Special Meetings -- Special meetings of the Board of
Directors may be called by, or at the request of, the President or any two
directors. The person, or persons, authorized to call a special meeting of the
Board of Directors may fix any place, either within or without the Commonwealth
of Kentucky, as the place for holding such special meeting of the Board of
Directors called by them.
<PAGE>
5
Section 5. Notice -- Notice of any regular meeting of the Board of
Directors may be given, and notice of any special meeting shall be given, at
least two (2) days prior thereto by written notice delivered personally or
mailed to each director at his business address, or by telegram. Any director
may waive notice of any meeting, and the attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Notice or
waiver of notice of any meeting of the Board of Directors of the corporation
need not specify the business to be transacted at such meeting nor the purpose
thereof.
Section 6. Vacancies -- Whenever any vacancy shall occur on the Board
of Directors by reason of death, resignation, or otherwise, such vacancy shall
be filled by the remaining member, or members, of the Board. The directors so
chosen shall hold office until the next annual election and until their
successors shall be duly elected and shall qualify, unless sooner displaced.
Section 7. Quorum -- A majority of the Board of Directors shall
constitute a quorum for the transaction of business.
ARTICLE IV
----------
Officers
Section 1. Number -- The officers of the corporation shall be a
President, and may include one or more Vice Presidents (the number thereof to be
determined by the Board of Directors),
<PAGE>
6
a Secretary, and a Treasurer, each of whom shall be elected by the Board of
Directors. Such other officers and assistant officers as may be deemed
necessary may be elected or appointed by the Board of Directors. Any two or
more offices may be held by the same person.
Section 2. Election and Term of Office -- The officers of the
corporation to be elected by the Board of Directors shall be elected annually by
the Board of Directors at the first meeting of the Board of Directors held after
each annual meeting of the stockholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as is
reasonably possible. Each officer shall hold office until his successor shall
have qualified, or until his death or until he shall resign or shall have been
removed in the manner hereinafter provided.
Section 3. Removal and Vacancies -- Any officer elected or appointed
by the Board of Directors may be removed by the Board whenever in its judgment
the best interest of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. A vacancy in any office because of death, resignation, removal,
disqualification, or otherwise, may be filled by the Board of Directors for the
unexpired portion of the term.
Section 4. Duties of the President -- The President shall be the
chief executive officer of the corporation and, subject to the control of the
Board of Directors, shall in general supervise and control all of the affairs of
the
<PAGE>
7
corporation. He shall preside at all meetings of the stockholders and
directors. He shall sign or countersign all certificates, contracts, and other
instruments of the corporation, as authorized by the Board of Directors, shall
make reports to the Board of Directors and stockholders, and shall perform all
other duties as are incident to his office, or are properly required of him by
the Board of Directors.
Section 5. Duties of Vice-President -- The Vice-President shall
exercise the functions of the President during the absence or disability of the
President. The Vice-President may sign, with the Secretary or an assistant
Secretary, certificates for shares of the corporation; and shall perform such
other duties as from time to time may be assigned to him by the President or by
the Board of Directors.
Section 6. Duties of the Secretary -- The Secretary shall keep
accurate minutes of all meetings of the stockholders and of the Board of
Directors, and shall perform all of the duties commonly incident to his office,
and shall perform such other duties and have other powers as the Board of
Directors shall designate. The Secretary shall have power, together with the
President or a Vice-President, to sign certificates of stock of the corporation.
In his absence at any meeting, an assistant secretary or a secretary pro tempore
shall perform his duties thereat.
Section 7. Duties of the Treasurer -- The Treasurer shall have the
custody and be responsible for all funds and securities of the corporation, and
shall keep accurate books of account of the corporation's transactions which
shall be the
<PAGE>
8
property of the corporation and, together with all its property in his
possession, shall be subject at all times to the inspection and control of the
Board of Directors. He shall disburse the funds of the corporation in payment
of the just demands against the corporation, or as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to
the Board of Directors from time to time, as may be required of him, an account
of all of his actions as Treasurer and of the financial condition of the
corporation. He shall perform all duties incident to his office, or which are
properly required of him by the Board of Directors.
ARTICLE V
---------
Certificates of Stock
Section 1. Form -- Certificates representing shares of the
corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice-
President and by the Secretary or an assistant Secretary, and all certificates
shall be consecutively numbered or otherwise identified. The name and address
of the person to whom the shares represented thereby are issued, with the number
of shares and date of issue, shall be entered on the Stock Transfer Books of the
corporation. All certificates surrendered to the corporation for transfer shall
be cancelled and no new certificates shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed, or mutilated certificate,
the new one may be issued
<PAGE>
9
therefor upon such terms and indemnity to the corporation as the Board of
Directors may prescribe.
Section 2. Transfer of Shares -- Transfer of shares of the
corporation shall be made only on the Stock Transfer Books of the corporation by
the holder of record thereof, or by his legal representative, who shall furnish
proper evidence of authority to transfer, or by his attorney thereunto
authorized by Power of Attorney duly executed and filed with the Secretary of
the corporation, and on surrender for cancellation of the certificate for such
shares. The person in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be the owner thereof for all purposes.
ARTICLE VI
----------
Checks, Notes, Etc.
Section 1. All checks and drafts on the corporation's banking
accounts, and all bills of exchange, promissory notes, and all acceptances,
obligations, and other instruments for the payment of money, shall be signed by
such officer, or officers, agent or agents, as shall be thereunto duly
authorized from time to time by the Board of Directors of the corporation.
ARTICLE VII
-----------
Corporate Seal
Section 1. The Board of Directors shall provide a corporate seal,
which shall be circular in form and shall have inscribed thereon the name of the
corporation, the state of incorporation, and the words "Corporate Seal."
<PAGE>
10
ARTICLE VIII
------------
Amendments
Section 1. These By-Laws may be altered, amended, or repealed and new
By-Laws may be adopted by the Board of Directors at any regular or special
meeting of the Board of Directors.
<PAGE>
EXHIBIT 3.65
CERTIFICATE OF LIMITED PARTNERSHIP
OF
PATRIOT COAL COMPANY, L.P.
The undersigned, desiring to form a limited partnership pursuant to the
Delaware Revised Uniform Partnership Act, 6 Delaware Code, Chapter 17, do hereby
certify as follows:
I. The name of the limited partnership is Patriot Coal Company, L.P.
II. The address of the Partnership's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle. The name of the Partnership's registered agent for service of
process in the State of Delaware at such address is The Corporation Trust
Company.
III. The name and mailing address of each general partner is as follows:
Name Mailing Address
---- ---------------
Illuminati, Incorporated P.O. Box 209
Hartford, Kentucky 42347
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership of Patriot Coal Company, L.P., as of April 12, 1994.
/s/ Debra Francis
---------------------------------
Debra Francis
President
Illuminati, Incorporated
General Partner
<PAGE>
EXHIBIT 3.66
LIMITED PARTNERSHIP AGREEMENT
OF
PATRIOT COAL COMPANY, L.P.
Amended and Restated
as of May 19, 1995
<PAGE>
<TABLE>
<CAPTION>
INDEX
-----
<S> <C>
ARTICLE I ORGANIZATION, NAME AND PURPOSES............................ 2
ARTICLE II EFFECTIVE DATE AND TERM.................................... 4
ARTICLE III FINANCIAL RESPONSIBILITIES................................. 4
ARTICLE IV VENTURE MANAGEMENT......................................... 9
ARTICLE V ACCOUNTING AND FISCAL PROCEDURES........................... 14
ARTICLE VI PARTNERSHIP DISTRIBUTIONS ELECTIONS AND.................... 15
ARTICLE VII TERMINATION................................................ 29
ARTICLE VIII REPRESENTATIONS AND WARRANTIES............................. 31
ARTICLE IX GENERAL.................................................... 36
</TABLE>
<PAGE>
LIMITED PARTNERSHIP AGREEMENT
-----------------------------
OF
--
PATRIOT COAL COMPANY, L.P.
--------------------------
This Limited Partnership Agreement ("Agreement"), amended and restated as
of the 19 day of May, 1995, by and between BLUEGRASS COAL COMPANY ("Bluegrass"),
a Delaware corporation and qualified to do business in Kentucky and SENTRY
MINING COMPANY (~Sentry"), a Delaware corporation and qualified to do business
in Kentucky, the parties sometimes hereinafter being referred to collectively as
the "Venturers", and the joint venture shall be referred to as the "Venture";
WITNESSETH:
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein made, Bluegrass and Sentry hereby agree as follows:
ARTICLE I
ORGANIZATION, NAME AND PURPOSES
Sec. 1.1 Organization.
(a) The Venturers hereby adopt this Agreement as the Articles of Venture
of the Venture and hereby agree that the Venture shall be continued for the
limited purposes and scope set forth herein.
(b) Except to the extent otherwise provided herein, the rights and
liabilities of the Venturers and the conduct and termination of the Venture
shall continue to be governed by the
<PAGE>
Delaware Revised Uniform Limited Partnership Act (Delaware Revised Statute
(S)17-101 et seq.).
(c) The Venturers will promptly execute all certificates and other
documents, and make all such filings and recordings and perform such other acts
as may now or hereafter be necessary or desirable, to comply with the
requirements of Delaware law for the carrying on of the business of the Venture.
(d) Sentry shall be the general partner in the Venture and Sentry's
ownership interest in the Venture shall be 51% and Bluegrass shall be a limited
partner in the Venture and Bluegrass' ownership interest in the Venture shall be
49%.
(e) All real and other property including permits and licenses owned by or
granted to or held by the Venture shall continue to be deemed to be owned by or
granted to or held by the Venture as an entity, and no Venturer, individually,
shall have any ownership of, or right to use, any such property, except as
provided in this Agreement.
Section 1.2 Name. The name of the Venture shall be Patriot Coal Company,
----------- ----
L.P. ("Patriot").
Section 1.3 Purposes. The purposes of the Venture are:
----------- --------
(a) To acquire, develop and conduct coal mining operations at the Patriot
Mine, Henderson County, Kentucky (the "Patriot Mine") or such other operations
as the Management Committee may elect;
(b) To sell to such customers and markets as can be found all economically
recoverable coal from the Patriot Mine or other operations;
2
<PAGE>
(c) To acquire by purchase, lease or otherwise, all of the machinery,
equipment and facilities necessary to develop and conduct such coal mining and
sales operations; and
(d) To carry on such other activities as are necessary or incidental to
the foregoing purposes.
Sec. 1.4 Other Activities. The Venture shall not engage in any other
-------- ----------------
business or activity without the written agreement of the Venturers.
ARTICLE II
EFFECTIVE DATE AND TERM
Sec. 2.1 Effective Date and Term. This Agreement shall be effective as of
-------- -----------------------
the satisfactory completion of the following conditions precedent (the
"Effective Date") and shall continue in existence until terminated as
hereinafter provided:
(a) Approval of each Venturer's shareholders and directors;
ARTICLE III
FINANCIAL RESPONSIBILITIES
Sec. 3.1 Contributions to the Venture. As and when the Venture determines
-------- ----------------------------
by unanimous consent from time to time that it requires cash, each Venturer
hereby agrees that it shall make cash contributions to the Venture in an amount
equal to such Venturers respective interest in the Venture of each such cash
requirement.
Sec. 3.2 Initial Capital Contributions. The initial capital of the Venture
-------- -----------------------------
shall be $18,367,346. Sentry shall be credited with contributions of $9,367,346
and Bluegrass shall be credited
3
<PAGE>
with contributions of $9,000,000. Attached hereto and made a part hereof, as
Schedule 3.2, is the listing of assets which have been previously contributed to
the Venture by Sentry's predecessor.
Sec. 3.3 Future Property Acquisitions. It is the intention of the
-------- ----------------------------
Venturers that the Venture shall undertake to acquire for its own account and in
its own name any coal reserves or other interests adjacent to the Patriot Mine
which would be necessary or helpful to the conduct of the Venture's business.
Sec. 3.4 Capital Accounts.
-------- ----------------
(a) Initial Balance. Each Venturer will have a capital account (a
---------------
"Capital Account") which shall initially be equal to (a) the initial Carrying
Value (as hereinafter defined) of the assets contributed to the Venture by such
Venturer, plus (b) the amount of any cash so contributed by such Venturer.
(b) Subsequent Adjustments. Each Venturer's Capital Account generally
----------------------
shall be maintained and adjusted in accordance with Section 1.704-l(b) of the
Treasury Regulations. There shall be credited to each Venturer's Capital Account
(a) the amount of any cash, and the initial Carrying Value of any assets other
than cash, subsequently contributed by such Venturer to the capital of the
Venture, (b) such Venturer's share of Venture income (as determined in
accordance with Section 6.1), and (c) any items of gross income or gain
allocated to such Venturer pursuant to Section b .4, and there shall be charged
against each Venturer's Capital Account (w) the amount of all cash distributions
to such Venturer, (x) the fair market value of any property distributed to such
Venturer by the Venture (net of any liability secured by such property that the
Venturer is considered to assume or take
4
<PAGE>
subject to under section 752 of the Internal Revenue Code of 1986, as amended
(the "Code")), (y) such Venturer's share of Venture loss (as determined in
accordance with Section 6.1), and (z) any items of deduction, loss or Section
705 (a)(2)(B) Expenditure (as hereinafter defined) allocated to such Partner
pursuant to Section 6.4.
(c) In-Kind Distributions. If the Venture at any time distributes any of
---------------------
its assets to any Venturer in kind, the Capital Accounts of the Venturers shall
be adjusted to account for the Venturer's allocable shares (as determined, in
each case, in accordance with Article 6) of the revenue, expense, income or loss
that would have been realized by the Venture had the distributed assets been
sold for their respective fair market values (taking into account Section
7701(g) of the Code) immediately prior to such distribution.
(d) Section 754 Elections. In the event that the Venture makes an
---------------------
election under Section 754 of the Code, the amount of any adjustments to the
basis (or Carrying Values) of the assets of the Venture made pursuant to Section
743 of the Code shall not be reflected in the Capital Accounts of the Venturers,
but the amounts of any adjustments to the bases (or Carrying Values) of the
assets of the Venture made pursuant to Section 734 of the Code as a result of
the distribution of property by the Venture to the Venturer (to the extent that
such adjustments have not previously been reflected in the Venturers' Capital
Accounts) shall (a) be reflected in the Capital Accounts of the Venturer
receiving such distribution in the case of a distribution in liquidation of such
Venturer's interest in the
5
<PAGE>
Venture and (b) otherwise be reflected in the Capital Accounts of the Venture in
the manner in which the unrealized income and gain that is displaced by such
adjustments would have been shared had the property been sold at its Carrying
Value immediately prior to such adjustments.
(e) Transferee's Capital Accounts. In the event any interest in the
-----------------------------
Venture is transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to the extent
related to the transferred interest.
(f) Determinations. Except as otherwise provided in this Agreement,
--------------
whenever it is necessary to determine the Capital Account of any Venturer, the
Capital Account of such Venturer shall be determined after giving effect to all
allocations pursuant to Article 6 with respect to transactions effected, and all
distributions made, prior to the date and time as of which such determination is
to be made.
(g) Negative Balances. No Venturer with a negative balance in its Capital
-----------------
Account shall have any obligation to the Venture or any other Venturer to
restore such negative balance.
Sec. 3.5 Venture Assets and Expenses. The Venture shall purchase,
-------- ---------------------------
construct, lease or otherwise acquire all other property and assets required to
carry on the Venture's business and shall pay all of the Venture's expenses.
6
<PAGE>
ARTICLE IV
VENTURE MANAGEMENT
Sec. 4.1 Venture Organization. The management organization of the Venture
-------- --------------------
shall consist of a Management Committee (the "Committee") and a Managing General
Partner.
Sec. 4.2 Management Committee.
-------- --------------------
(a) Except as provided in Section 4.3, all action and decisions in
the management of the business of the Venture shall be taken by the
Management Committee. Agreement on behalf of either Venturer pursuant to
this Agreement shall be communicated through the Venturer's representatives
on the Management Committee.
(b) Each Venturer, by notice to the other Venturer, has appointed a
number of representatives to the Management Committee in conjunction with
such Venturer's interest in the Venture, which shall consist of at least
three members. The initial Management Committee shall consist of two
representatives appointed by Sentry and one representative appointed by
Bluegrass. At least one of the representatives of each Venturer shall be an
officer with the authority to act on behalf of the Venturer he represents.
The Management Committee may be increased in size by mutual consent, but
shall always consist of a number of members appointed by each Venturer in
proportion to such Venturer's interest in the Venture. At any time and from
time to time, either Venturer may remove and appoint a replacement for any
of its representatives by notice to the other Venturer. The salaries,
benefits and expenses of Committee members, while
7
<PAGE>
performing Committee functions, shall be borne by their respective
employers.
(c) Meetings of the Management Committee may be held at such
intervals and at such places as the Committee shall determine, but at least
every calendar quarter.
(d) The following actions shall require in every event the written
consent of each Venturer, executed by an officer thereof duly authorized
"hereunto;
(i) The liquidation or dissolution of the Venture;
(ii) The sale of all or substantially all of the assets of the
Venture;
(iii) Any merger or consolidation of the Venture into or with any
other entity, or any transfer, assignment, or encumbrance of a Venturer's
interest;
(iv) Any amendment, modification, change or variation in or to this
Agreement;
(v) Approval of the annual capital and operating budgets of the
Venture;
(vi) Approval of any coal supply agreement, regardless of term
including modifications of existing agreements. (e) The Management
Committee is authorized to elect an Executive Manager, Deputy Executive
Managers, and a Secretary, all to serve without payment. The Executive
Manager and the Deputy Executive Managers shall be authorized to execute.
on behalf of the Venture, legal instruments of all types, including
applications for permits, contracts and any and all documents and papers of
any type relating thereto. The Secretary shall keep correct minutes of any
and all meetings
8
<PAGE>
or determinations of the Management Committee and shall be authorized to
provide certified copies of any resolutions of the Venture.
Sec. 4.3 Managing General Partner. (a) Bluegrass shall act as Managing
-------- ------------------------
General Partner and in that capacity shall have responsibility for the
development, construction and operation of the mines and all related activities
to the Venture, including but not limited to, the following:
(1) Providing or arranging for and supervising all construction and
general engineering services, including any necessary coal reserve
drilling;
(2) Purchasing of all repair parts and supplies;
(3) Providing or arranging for all administration, general
supervision, management and technical services; and
(4) Providing or arranging for financial and accounting services as
described in Articles V and VI herein.
(b) All production and supervisory personnel required for the operations
of coal mines, including maintenance of equipment and facilities, shall be
exclusively employees of shall not be employees of the Venture. It is expressly
agreed between the Venturers that the Venture, or any Venturer, shall not
control the hiring of employees of the third parties and shall not direct the
actions of the workforce. The workforce will be hired and directed by such third
parties exclusively, and the Managing General Partner shall direct and control
any third parties retained for the operations of coal mines. The Executive
Manager shall have the day to day responsibility of administering any
9
<PAGE>
third party production contracts, but shall, under no circumstances, undertake
responsibility for the hiring of such third party's workforce.
(c) The Venture shall employ, from time to time, employees to assist in
the administration of the Venture ("Administrative Employees"). Decisions
regarding the total number of Administrative Employees of the Venture, shall be
subject to annual budget reviews of the Venture.
ARTICLE V
ACCOUNTING AND FISCAL PROCEDURES
Sec. 5.1 Books and Records. Complete books and records accounting for the
-------- -----------------
results of operations of the Venture shall be kept and maintained by the Venture
and each Venturer shall have the right to inspect and examine such books or
records at all reasonable times.
Sec. 5.2 Method of Accounting. The books of account of the Venture shall
-------- --------------------
be maintained on the accrual basis and in accordance with generally accepted
accounting principles which, having been adopted, shall not be changed without
unanimous Committee approval. Accounting for financial and tax purposes shall be
in accordance with Article VI hereof, except as determined by unanimous vote of
the Committee.
Sec. 5.3 Fiscal Year. The fiscal year of the Venture for both financial
-------- -----------
and tax reporting purposes shall be from October 1 through September 30.
10
<PAGE>
Sec. 5.4 Auditors. The independent auditors of the Venture shall be the
-------- --------
accounting firm of Ernst and Young and shall not be removed without the
unanimous vote of the Venturers.
Sec. 5.5 Borrowing. The Venture shall only borrow money upon the unanimous
-------- ---------
consent of the Venturers.
ARTICLE VI
PARTNERSHIP DISTRIBUTIONS, ELECTIONS AND ALLOCATIONS
Sec. 6.1 Division of Venture Income or Loss. All items of the Venture's
-------- ----------------------------------
annual revenue, expense, income or loss, as shown by the certified statement of
income for the year, shall be divided between the parties as follows:
Sentry 51%
Bluegrass 49%
Sec. 6.2 Tax Allocation Provisions.
-------- -------------------------
(a) Certain Definitions.
1. "Carrying Value" means, with respect to any asset, the
asset's adjusted basis for federal income tax purposes, except as follows:
(i) the initial Carrying Value of any asset contributed to
the Venture shall be such asset's gross fair market value at the
time of such contribution;
(ii) if the Venture elects to adjust the Capital Account
balances of the Venturers to reflect the fair market value of the
Venture's assets in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f), the Carrying Values
11
<PAGE>
of all Venture assets shall be adjusted to equal their respective
gross fair market values at the time of such election; and
(iii) if the Carrying Value of an asset has been determined
pursuant to clause (i) or (ii) of this Section 6.2(a), and if the
asset's adjusted tax basis for federal income tax purposes
differs from the Carrying Value at such time, such Carrying Value
shall thereafter be adjusted in the same manner as would the
asset's adjusted basis for federal income tax purposes.
2. "Excess Depletion" means percentage depletion with respect to
depletable property which exceeds the adjusted tax basis of such property.
3. "Section 705(a)(2)(B) Expenditure" means any expenditure of
the Venture described in Section 705(a)(2)(B) of the Code and any expenditure
considered to be an expenditure described in Section 705(a)(1)(B) of the Code
pursuant to Treasury Regulations under Section 704(b) of the Code.
(b) In General. For income tax purposes, all items of gross income,
----------
gain, loss, deduction and Section 705(a)(2)(B) Expenditure for a fiscal year
(other than items allocated pursuant to Section 6.2(c) or Section 6.2(d)) hereof
shall be allocated to the Venturers in the same manner as is the Venture's
income or loss for such year; provided, however, that, if the Carrying Value of
any property of the Venture differs from is adjusted basis for federal income
tax purposes, then items of gain, loss and deduction the amount of which is
affected by such
12
<PAGE>
adjusted basis (other than items allocated pursuant to Section 6.2(c)) shall be
allocated among the Venturers in a manner that takes account of the variation
between the adjusted basis of the property for tax purposes and its Carrying
Value in the manner provided for under Section 704(c)(1)(A) of the Code and the
Treasury Regulations thereunder.
(c) Excess Depletion. Excess Depletion, if any, for a fiscal year
----------------
shall, pursuant to Treasury Regulation Section 1.704-1(b)(4)(iii), be allocated
in accordance with the allocation of gross income for such year.
(d) Special Allocations. Allocations pursuant to Section 6.4 of
-------------------
items of gross income, gain, loss, deduction and Section 705(a)(2)(B)
Expenditure of the Venture shall, except as otherwise required by Treasury
Regulations under Section 704(b) of the Code, consist of a pro rata portion of
each item of gross income, gain, loss, deduction, and Section 705(a)(2)(B)
Expenditure of the Venture, as appropriate, for such fiscal year.
Sec. 6.3 Other Tax Matters.
-------- -----------------
(a) Designation of Tax Matters Partner.
1. Sentry shall be the tax matters partner (the "TMP") of the
Venture within the meaning of Section 6231(a)(7) of the Code. The TMP shall not
extend the statute of limitations on behalf of the Venture, select the Venture's
choice of litigation forum in a tax controversy or take any other action in its
capacity as TMP without the consent of the other Venturers. The TMP shall keep
the other Venturers fully advised of the progress of any audit and shall supply
the other Venturers with copies of any written communications received from the
Internal Revenue
13
<PAGE>
Service or other taxing authority relating to any audit within ten days after
receipt thereof, and shall at least five business days prior to submitting any
materials to the Internal Revenue Service, or other taxing authority, provide
such materials to the other Venturers. Any settlement with the Internal Revenue
Service shall be agreed upon by all Venturers. The TMP shall be reimbursed by
the Venture for any reasonable expenses incurred in its capacity as TMP.
2. Nothing in this Section 6.3(a) is intended to authorize the
TMP to take any action that is left to the determination of a Venturer under
Sections 6222 through 6233 of the Code.
(b) This Venture is -intended to and shall constitute a partnership
for income tax purposes.
(c) Except as hereinafter specified, the unanimous vote of the
Committee shall determine any partnership elections to be made by or on behalf
of the Venture for tax purposes.
(d) The Managing General Partner shall be responsible for preparing
or causing to be prepared and the filing of any
required federal and state income tax returns.
(e) Compliance with Treasury Regulated. The provisions of this
----------------------------------
Article VI and-the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulation
Section 1.704-1(b), and shall be interpreted and applied in a manner consistent
with such Treasury Regulations.
14
<PAGE>
6.4 Special Allocation Provisions.
(a) Certain Definitions.
1. "Minimum Gain" for the Venture means the amount determined by
computing with respect to each non-recourse liability of the Venture the amount
of income, if any, that would be realized by the Venture if it disposed of the
property securing such liability in full satisfaction thereof, and by then
aggregating the amounts so computed.
2. "Share of Minimum Cain" means, for each Venturer, the excess,
if any, of (i) the sum of the aggregate Non-Recourse Deductions allocated to
such Venturer (and such Venturer's predecessors in interest), cumulatively from
the inception of the Venture, and the aggregate distributions to such Venturer
(and such Venturer's predecessors in interest), cumulatively from the inception
of the Venture,- of proceeds of a non-recourse liability that are allocable~to
an increase in Venture Minimum Gain, over (ii) the sum of such Venturer's (and
such Venturer's predecessors') aggregate share (determined as described below)
of any net decreases in Venture Minimum Gain, cumulatively from the inception of
the Venture. For purposes of the Section 6.4: (a) a deduction shall constitute a
"Non-Recourse Deduction" if, and to the extent that, at the time such item was
incurred it increased the amount of the Venture's Minimum Gain; (b) a Venturer's
share of the net decrease in Venture Minimum Gain during a taxable year shall be
an amount that bears the same relation to the tenth decrease in Minimum Gain
during such year as such Venturer's Share of Minimum Gain at the end of the
prior taxable year (or if later at the time immediately following the
15
<PAGE>
last time that the Capital Accounts of the Venturers are increase pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(f) or (r) to reflect the
revaluation of Venture property subject to one or more non-recourse liabilities
of the Venture) bears to he amount of Minimum Gain at the end of such prior
taxable year (or such later date); (c) a Venturer's share of any decrease in
Venture Minimum Gain resulting from a revaluation of Venture property equals the
amount of the increase in such Venturer's Capital Account attributable to such
revaluation to the extent of the reduction in Minimum Gain caused by such
revaluation; (d) in determining the net increase or decrease in Venture Minimum
Gain during any Venture taxable year in which the Capital Accounts of the
Venturers are increased pursuant to a revaluation of Venture property subject to
one or more non-recourse liabilities of the Venture, any decrease in Venture
Minimum Gain attributable to each such revaluation shall be added back to the
net decrease or increase otherwise determined; and (e) a distribution to a
venturer by the Venture that is allocable to the proceeds of any non-recourse
liability of the Venture is allocable to an increase in the Venture Minimum Gain
to the extent of the amount of the net increase, if any, in Venture Minimum Gain
for such taxable year that is allocated to such non-recourse liability under
Treasury Regulation Section 1.704-2(h).
3. "Partner Minimum Gain" means Minimum Gain that would result
if all partner non-recourse debt, as defined in Treasury Regulation Section
1.704-2(b)(4) ("Partner non-Recourse Debt"), were treated as non-recourse
liabilities of the Venture and the Venture had no other non-recourse
liabilities.
16
<PAGE>
4. "Share of Partner Minimum Gain" means, for each Venturer,
such Venturer's Share of Minimum Gain that would result if all Partner non-
Recourse Debt were treated as non-recourse liabilities of the Venture and the
Venture had no other non-recourse liabilities.
(b) Minimum Gain Chargeback. Notwithstanding any other provisions in
this Agreement to the contrary, if in any fiscal year there is a net decrease in
the amount of the Venturers Minimum Gain or in the amount of the Partner Minimum
Gain, each Venturer shall be allocated income and gain (including gross income)
for such year or other period (and, if necessary, for subsequent years) in
proportion to, and to the extent of, an amount equal to the greater of (i) the
portion of such venturer Is share of the net decrease in Minimum Gain or Partner
Minimum Gain during such year or period that is allocable to the disposition of
the Venture property subject to one or more non-recourse liabilities of the
Venture (including Partner Non-Recourse Debt), or (ii) the negative balances
(computed with the adjustments described below) in such Venturer's Capital
Account at the end of such year (prior to any allocation pursuant to Section
6.1, Section 6.4(c), the last sentence of Section 6.4(d) or the last sentence of
Section 6.4(e). In determining a Venturer's negative Capital Account balance for
purposes of this Section 6.4(b), a Venturer's Capital Account balance shall be
increased by the amount, if any, that such Venturer is obligated to restore to
the Venture upon liquidation and shall be decreased by the amounts of any net
allocations, distributions or other items specified in the first sentence of
Section 6.4(c) that, as
17
<PAGE>
of the end of the taxable year, are reasonably expected to be made to such
Venturer. For purposes of this Section 6.4(b) and Section 6.4(c), the amount
that a Venturer may be obligated to contribute to the Venture upon liquidation
shall be considered to include: (a) such Venturer's allocable share (as
determined under Section 752 of the Code, of any recourse indebtedness of the
Venture which could not be repaid out of the Venture's assets if all such assets
were sold at their respective Carrying Values; (b) any unconditional obligation
of such Venturer to contribute additional amounts to the capital of the Venture
in the future (to the extent not previously taken into account in determining
such Venturers share of recourse liabilities of the Venture); (c! such
Venturer's Share of Minimum Gain; and (d) such Venturers Share of Venture
Minimum Gain. In the event any items of income and gain (including gross income)
of the Venture are reallocated to a Venturer pursuant to the first sentence of
this Section 6.4(b), subsequent items of loss, deduction, or Section
705(a)(2)(B) Expenditure of the Venture shall be allocated (prior to any
allocation pursuant to Section 6.1, but subject to Section 6.4(d)) to the
Venturers in a manner designed to result in each Venturer having a Capital
Account balance equal to what it would have been had the reallocation of items
of income and gain (including gross income) pursuant to the first sentence of
this Section 6.4(b) not occurred. Allocations of income and gain (including
gross income) made pursuant to this Section 6.4(b) shall be made with respect to
Venture Minimum Gain prior to any allocation made pursuant to this Section
6.4(b) with respect to Partner Minimum Gain.
18
<PAGE>
(c) Qualified Income Offset. Notwithstanding any other provision in
-----------------------
this Agreement (other than Section 6.4(b)), if (i) during any fiscal year a
Venturer (a) is allocated pursuant to Section 706(d) of the Code or Treasury
Regulation Section 1.751-l(b)(2)(ii) any items of loss, deduction or Section
705(a)(2)(B) Expenditure, (b) is distributed any cash or property from the
Venture to the extent such distributions exceed offsetting increases to such
Venturer's Capital Account that are reasonably expected to occur during such
year, or (c) receives any other adjustment, allocation or distribution described
in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) and, as a
result of such adjustment, allocation or distribution, such Venturer has a
Qualified Income Offset Amount, then (ii) items of income and gain (including
gross income) for such fiscal year (and, if necessary, subsequent years), shall
(prior to any allocation pursuant to Section 6.1, the last sentence of Section
6.4(d) or the last sentence of Section 6.4(e), but subsequent to any allocation
pursuant to Section 6.4(b)) be allocated to such Venturer in an amount equal to
his Qualified Income Offset Amount. As used herein, the term "Qualified Income
Offset Amount" for a Venturer means the excess, if any, of (x) the negative
balance in a Venturer's Capital Account immediately after the adjustment,
allocation or distribution described in clause (i) of the preceding sentence
(but without regard to any allocation pursuant to clause (ii) of the preceding
sentence), over (y) the maximum amount that such Venturer may be obligated to
contribute to the Venture upon liquidation as determined pursuant to the third
sentence of Section 6.4(b). In the event any items of
19
<PAGE>
income and gain (including gross income) of the Venture are reallocated to a
Venturer pursuant to the first sentence of this Section 6.4(c), subsequent items
of loss, deduction or Section 705(a)(2)(B) Expenditure of the Venture shall be
allocated (prior to any allocation pursuant to Section 6.1, but subject to
Sections 6.4(d) and 6.4(e)) to the Venturers in a manner designed to result in
each Venturer having a Capital Account balance equal to what it would have been
had the reallocation of items of income and gain (including gross income)
pursuant to the first sentence of this Section 6.4(c) not occurred.
(d) Limitations on Loss Allocation. Notwithstanding the provisions
------------------------------
of Section 6.1, in no event shall net loss (or items thereof) of the Venture be
allocated to a Venturer if such allocation would result in such Venturer having
a Qualified Income Offset Amount. Any allocation to a Venturer which is
prevented by the operation of the preceding sentence shall be reallocated in
accordance with Section 6.1, subject to the subsequent provisions of this
Section 6.4(d). For purposes of this Section 6.4(d), the determination of
whether an allocation of net loss (or items thereof) would produce a Qualified
Income Offset Amount for a Venturer shall be made after reducing the Venturer's
Capital Account by the amounts of any adjustment, allocation or distribution
described in clause (i) of the first sentence of Section 6.4(c) that, as of the
end of the fiscal year, are reasonably expected to be made to the Venturer. In
the event any net loss of the Venture is reallocated from a Venturer pursuant to
the first sentence of this Section 6.4(d), subsequent items of income and gain
(including gross income) will first be
20
<PAGE>
allocated (subject to Sections 6.4(b) and 6.4(c)) to the Venturers in a manner
designed to result in each Venturer having a Capital Account balance equal to
what it would have been had the reallocation pursuant to the first sentence of
this Section 6.4(d) not occurred.
(e) Allocation of Partner Non-Recourse Deductions. Items of loss,
---------------------------------------------
deduction and Section 705(a)(2)(B) Expenditures attributable, under Treasury
Regulation Section 1.704-2(i), to Partner Non-Recourse Debt shall (prior to any
allocation pursuant to Section 6.1, but subject to the provisions of Section
6.4(d)) be allocated, as provided in Treasury Regulation Section 1.704 2(i), to
the Venturers in accordance with the ratios in which they bear the economic risk
of loss for such debt. In the event any items of loss, deduction and Section
705(a)(2)(B) Expenditure of the Venture are allocated pursuant to the first
sentence of this Section 6.4(e), subsequent items of income and gain (including
gross income) shall (prior to any allocation pursuant to Section 6.1, and
subject to Sections 6.4(b) and 6.4(c)) be allocated to the Venturers in a manner
designed to result in each Venturer having a Capital Account balance equal to
what it would have been had the reallocation pursuant to the first sentence of
this Section 6.4(e) not occurred.
Sec. 6.5 Cash Calls and Distributions. Cash contributions and cash
-------- ----------------------------
distributions shall be made to or by the Venturers at such times and in such
amounts as shall be determined by the Committee. The Venture shall make cash
distributions only in excess of the 'Free Cash Flow" of the Venture. "Free Cash
Flow" shall be defined as the amount of cash generated by the Venture,
21
<PAGE>
determined on a monthly basis, in excess of the foreseeable cash requirements of
the Venture over the subsequent 30-day period following the date of such
determination.
ARTICLE VII
TERMINATION
Sec. 7.1 Events of Termination. The Venture shall terminate upon the
-------- ---------------------
occurrence of the earliest of the following events:
(a) Exhaustion of the Venture's economically recoverable coal reserves
heretofore or hereafter acquired;
(b) Bankruptcy of either Sentry or Bluegrass; or
(c) As otherwise provided by law.
Sec. 7.2 Termination Procedure. Upon termination of the Venture, a final
-------- ---------------------
audit shall be made and the following procedure shall govern:
(a) All assets, other than cash, shall be sold or collected and
turned into cash, provided, however, that if termination is other than as a
result of the bankruptcy of one of the Venturers that the other Venturer shall
have the right, at its option, to buy all (but not less than all) of the assets
of the Venture for an amount equal to their then fair market value. In the event
such Venturer elects to purchase such assets, the Venturers shall agree upon the
fair market value of such assets. If the Venturers cannot agree upon the fair
market value of such assets, such value shall be determined by an appraisal made
by an independent mining consultant having broad experience in the art of coal
mining to be agreed upon by the Venturers within thirty (30) days of their
failure to reach agreement on such value. If
22
<PAGE>
the Venturers cannot agree upon an independent mining consultant, the selection
thereof shall be submitted to arbitration pursuant to Sec. 8.11 hereof;
(b) All of the Venture's debts and obligations, including loans or
advances from either Venturer, shall be paid in full; and
(c) The remaining cash, if any, shall be distributed
to the Venturers in proportion to their respective Capital
Accounts.
No Venturer shall be obligated to restore any negative
balance in its Capital Account.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
The Venturers hereby represent and warrant to each other, as more
specifically provided herein, as follows:
(a) Authority. Each Venturer is a corporation duly organized, validly
---------
existing and in good standing under the laws of the State of their incorporation
and qualified to transact business within the State of Kentucky. All corporate
acts and other proceedings required to be taken to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and properly taken.
(b) Title to Property. The Venturers have good and valid title to any
-----------------
property to be contributed to the Venture, free and clear of any liens, claims
and encumbrances of any kind.
23
<PAGE>
(c) Governmental Approvals. Each Venturer possesses all governmental
----------------------
franchisees, licenses, permits, authorizations and approvals necessary
(including, without limitation, all authorizations and bonds posted in
connection therewith, whether pertaining to health or safety, the environment or
otherwise) to enable it to use its corporate name and to own, lease or otherwise
hold its properties and assets and to carry on its business as presently
conducted.
(d) Litigation. Neither Venturer is a party to any lawsuit, claim,
----------
proceeding or investigation, and to the best knowledge of each Venturer, no such
lawsuit, claim, proceeding or investigation is threatened, as of the date of
this Agreement, by or against or affecting any Venturer or any of its
properties, assets, operations or businesses other than as set forth on Schedule
8(d) hereto. Neither Venturer is subject to or in default under any judgment,
order or decree of any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, applicable to it
or any of its properties, assets, operations or businesses.
(e) Absence of Changes or Events. Except as disclosed on Schedule 8 (e)
----------------------------
hereto, or otherwise expressly permitted by the terms of this Agreement, there
has not been any material adverse change in the business, assets, conditions or
results of operations of either Venturer since May 19, 1995.
(f) Absence of Certain Liabilities. Bluegrass warrants and indemnifies
------------------------------
Sentry against any claim or cause of action arising out of the operation of the
Patriot Mine prior to the Effective Date of this Agreement. All accounts
receivable and accounts
24
<PAGE>
payable and any other liabilities arising out-of the operation of the Patriot
Mine prior to the Effective Date of this Agreement shall remain the property of
and the responsibility of Bluegrass.
(g) Environmental Matters. Except as disclosed on Schedule 8 (g) hereto:
---------------------
(i) Bluegrass warrants that no environmental condition exists, which
would have a material adverse effect on the Patriot Mine, nor any Hazardous
Substance (as defined herein) has been released, discharged, deposited, emitted,
leaked, spilled, poured, emptied, injected, dumped, disposed or otherwise placed
or located on, in or under the real property owned or leased at the Patriot
Mine. For purposes of this Agreement, "Hazardous Substance" means any "hazardous
substance" as that term is defined in 42 U.S.C. (S)11049 (3), or any other
material regulated under any environmental law, statute, regulation, code,
permit or order of the United States, any state, or any other governing body,
authority or agency. All Hazardous Substances that have been removed from the
Patriot Mine have been handled, transported, stored, treated and disposed of in
compliance with all Environmental Laws. For purposes of this Agreement
"Environmental Laws" shall mean the Surface Mining Control and Reclamation Act
of 1977 (30 U.S.C., Section 1201, et seq.), as amended, and its state
counterpart; the Federal Water Pollution Control Act (33 U.S.C., Section 1251,
et seq.) as amended, and its state counterpart; the Clean Air Act (42 U.S.C.,
Section 7401, et seq.), as amended, and its state counterpart; the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. Section 801 et seq.) as amended, and
its state counterpart; the Toxic
25
<PAGE>
Substances Control Act (14 U.S.C. Section 2601, et seq.) as amended, and its
state counterpart; the Resource Conservation and Recovery Act of 1976 (42
U.S.C., Section 6901, et seq.) as amended, and its state counterpart; the
Comprehensive Environmental Response, Compensation and Liability Act (92 U.S.C.
Section 9601, et seq.) as amended by the Superfund Amendments and
Reauthorization Act, and its state counterpart; and other laws or regulations
pursuant to which the Patriot Mine has an existing Permit.
(ii) Bluegrass warrants that there are no threatened or pending
investigations, citations, Quits or notices of violation resulting from or
connected with, the Patriot Mine, relating to the use, storage, disposal,
transportation, release, discharge or emission of any Hazardous Substance.
(iii) Bluegrass warrants that all permits, licenses, consents and
authorizations necessary for full compliance of the Patriot Mine with all
applicable environmental laws have been obtained and are valid and in full force
and effect.
(iv) Bluegrass warrants that the Patriot Mine complies with all
Environmental Laws.
(h) Applicant Violator System. Each Venturer warrants that the Venturer,
-------------------------
its officers, shareholders, subsidiaries, affiliates and any other entity that
can be attributed to it under the "ownership and control" regulations issued by
the Office of Surface Mining are not currently "permit blocked" pursuant to the
Surface Mining Reclamation and Control Act of 1977 ("SMCRA"). Bluegrass warrants
that no unabated violation of SMCRA or its state counterpart exists at the
Patriot Mine on the
26
<PAGE>
Effective Date that would cause either or both of the Venturers to be "permit
blocked".
ARTICLE IX
GENERAL
Sec. 9.1 Governing Law. This Agreement shall be construed in accordance
-------- -------------
with the laws of the State of Delaware, including the provisions of the Revised
Uniform Limited Partnership Act thereof.
Sec. 9.2 Sole and Only Agreement. This Agreement, including any schedules
-------- -----------------------
hereto, represents the full understanding and agreement between the parties and
supersedes all previous correspondence, memoranda, and drafts of agreements
exchanged by the parties. It is intended that there shall be no conflict between
this Agreement and the schedules attached hereto but if such conflict shall be
found to exist, this Agreement shall prevail. This Agreement may not be changed,
modified, altered or amended except by an agreement in writing signed by the
Venturers. The failure of any Venturer at any time or times to require
performance of any provision hereof shall in no manner affect the right to later
enforce such rights. No waiver by any Venturer of any condition, or of the
breach of any term, provision, covenant, representation or warranty contained in
this Agreement or in the Schedules hereto or in connection with the transactions
contemplated hereby, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such condition
27
<PAGE>
or of the breach of any other term, provision, covenant, representation or
warranty.
Sec. 9.3 Partial Invalidity. If any term or provision of this Agreement
-------- ------------------
shall be rendered invalid, illegal or unenforceable, the remaining terms and
provisions of this Agreement shall be unaffected thereby and shall continue in
full force and effect.
Sec. 9.4 Amendments. This Agreement and the schedules hereto may be
-------- ----------
amended only by an instrument in writing signed by the parties.
Sec. 9.5 Title to Venture Property. Title to all Venture real or personal
-------- -------------------------
property shall be taken and held in the name of the Venture or in such other
name or manner as the Committee may from time to time determine or as may be
required by applicable law.
Sec. 9.6 Further Assurances. Each Venturer shall execute all documents
-------- ------------------
and take all action as may reasonably be required to effectuate the purposes and
intent of this Agreement, including compliance with all applicable laws and
regulations.
Sec. 9.7 Inspection. Each Venturer or its authorized representatives may
-------- ----------
examine any of the mines or equipment, at any reasonable time, and without
notice.
Sec. 9.8 Insurance. The Venture shall self insure all property of the
-------- ---------
Venture against loss by casualty and liability arising from its operations (and
ensure any contract miner maintains acceptable insurance coverage on its
operations)and activities.
28
<PAGE>
Sec. 9.9 Execution of Venture Documents. Contracts, leases, evidences of
-------- ------------------------------
indebtedness and other instruments and documents to which the Venture is a party
shall be executed in the name and on behalf of the Venture by such person or
persons as shall be authorized by the Managing General Partner or by the
Committee pursuant to Section 4 herein.
Sec. 9.10 Assignment. Neither party may sell, assign or otherwise
--------- ----------
transfer all or any part of its interest in this Agreement or the Venture
created thereby without the prior written consent of the other party.
Sec. 9.11 Arbitration. Any unresolved controversy between the parties,
--------- -----------
including inability to agree upon any matter subject to Joint Agreement, other
than as expressly provided herein, and claims by one party against the other
shall, at the written request of either party, be submitted to arbitration and
shall be determined under the Rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. Each Venturer shall select one arbitrator and
each arbitrator shall select a neutral third arbitrator and in the event of
their inability to do so, the party who requested arbitration may apply to the
United States District for the district in which the Patriot Mine is located to
appoint a third arbitrator. Within thirty (30) days after the appointment of
three arbitrators, notice shall be given by the arbitration tribunal to the
parties regarding the time and place of hearing which in no event shall be later
than sixty (60) days after selection of the arbitrators. After hearing, a
majority of the
29
<PAGE>
arbitrators shall decide the controversy and render an award in writing to the
parties setting forth the issues adjudicated, the resolution thereof and the
reasons for the award. All arbitrators shall be disinterested persons familiar
with the business of mining coal.
Sec 9.12 Defaults. No waiver by either Venturer for any one or more
-------- --------
defaults by the other in the performance of any provisions of this Agreement
shall operate or be construed as a waiver of any future default or defaults,
whether of a like or of a different character. In the event of any dispute under
this Agreement, the parties hereto shall, notwithstanding the pendency of such
dispute, diligently proceed with the performance of this Agreement without
prejudice to the rights of the other party. A default of either party in the
performance of any of its covenants or obligations under this Agreement, which,
except for this provision, would be the legal basis for an action for breach of
contract or termination of this Agreement by the other party, shall not give or
result in such a right unless and until the party committing such default shall
fail to either (1) correct the default within sixty (60) days after written
notice of claim of such default and a statement setting forth the nature thereof
is given to such defaulting party by the party claiming such default, except for
defaults occurring due to the nonpayment of amounts due hereunder, or (2) give
notice within said period of the submission of the validity of the claim of
default to arbitration pursuant to Sec. 8.11. Notwithstanding the foregoing, in
the event a "permit block" occurs due to the action or inaction of either
Venturer, the other Venturer may, upon three
30
<PAGE>
days notice giving such Venturer the opportunity to cure the permit block,
declare the other Venturer in default under this Agreement and this Agreement
would be terminated in accordance with Article VII hereto.
Sec. 9.13 Notices. All notices required to be given hereunder shall be
--------- -------
considered as properly given when delivered by hand or sent by first class or
certified mail to the parties at the following addresses, provided that the
person to whom notices are to be given hereunder may be changed by notice in
writing from one party to the other:
Sentry: President
Sentry Mining Company
701 Market St., Suite 700
St. Louis, MO 63101
Bluegrass: President
Bluegrass Coal Company
701 Market Street
St. Louis, MO 63101
Sec. 9.14 Effect of Other Agreements. General rights granted to and
--------- --------------------------
obligations undertaken by the Venture and/or the Venturers hereunder shall be
subject to specific rights granted or obligations undertaken pursuant to
agreements between the Venture and third parties.
Sec. 9.15 Confidentiality. Except as required by law or by any financing
--------- ---------------
institution with respect to financing made or to be made available by it, the
Venturers agree that they shall each keep confidential the terms and provisions
of this Agreement, and no party shall release any publicity with respect to this
Agreement except following consultation with and obtaining the prior written
approval of the other party, which shall not be unreasonably withheld.
31
<PAGE>
Sec. 9.16 Interpretation. In this Agreement, unless the context otherwise
--------- --------------
requires:
(a) words importing the singular include the plural and vice versa and
words of one gender include every other gender;
(b) headings are for convenience only and do not affect interpretation of
this Agreement;
(c) references to any party to this Agreement or any other agreement or
instrument include the party's successors and permitted assigns;
(d) a reference to a document includes an amendment or supplement to, or
replacement of that document;
(e) where a word or expression is defined, other, grammatical forms have a
corresponding meaning.
Sec. 9.17 Counterparts. This Agreement may be executed in one or more
--------- ------------
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their proper officers as of the day and year first above
written, intending to be legally bound thereby.
ATTEST: SENTRY MINING COMPANY
[Executed] /s/ Thomas S. Hilton
----------------------- ----------------------
Secretary President
ATTEST: BLUEGRASS COAL COMPANY
[Executed] [Executed]
----------------------- ----------------------
Secretary President
32
<PAGE>
Schedule 3.2
REAL AND PERSONAL PROPERTY CONTRIBUTED TO THE VENTURE
I. Leased and Owned Mining Equipment - See attached Schedule 1
II. Coal Mining Leases
a. Coal Mining Lease dated September 28, 1984, as amended by and between
Reynolds Metals Company and DEW Resources, Inc.
b. Coal Mining Sublease dated November 27, 1985 by and between DEW
Resources, Inc. and Pyramid Mining, Inc.
c. Lease dated November 11, 1985, as amended, by and between Harold D.
Allen and Aiko N. Allen, his wife, and Pyramid Mining, Inc.
d. Contingent Benefit Agreement, dated as of May 13, 1988, by and between
(1) D. C. Hall, Jr., (2) E. R. Phelps, (3) W. N. Poundstone, (4) Dennis Hall and
Pyramid Mining, Inc.
e. Contingent Interest Agreement, dated as of May 13, 1988, by and between
(I) D. C. Hall, Jr., (2) E. R. Phelps, (3) W. N. Poundstone (4) Dennis Hall and
Pyramid Mining, Inc.
f. Proceeds of a certain Settlement Agreement and Contingent Interest
Agreement, dated October 5, 1988 by and between Green Construction of Indiana,
Inc. d/b/a Green Coal Company and Dew Resources, Inc.
III. Coal Supply Agreements
a. Fuel Purchase Order No. 04-22-93-003 dated November 15, 1993 by and
between Indiana Michigan Power Company and Pyramid Mining, Inc. for the Tanners
Creek Plant #4.
b. Coal Marketing and Sales Agreement, dated April 17, 1990 by and between
Coal Network, Inc. and Pyramid Mining, Inc.
c. Coal Purchase Agreement, BST 493C, dated March 17, 1993 by and between
Tampa Electric Company and Pyramid Mining, Inc.
IV. Real Property Improvements
a. Patriot Dock, Henderson County, Kentucky
b. Patriot Preparation Plant, Henderson County, Kentucky
c. Office Trailer and Office Furniture, Fixtures and Equipment
d. Truck Scales located at the Patriot Mine, Henderson County, Kentucky
33
<PAGE>
e. Structure purchased from William and Irene Peckenpaugh on June 4, 1986
located in Henderson County, Kentucky
V. Miscellaneous
a. All Utility Deposits associated with the Patriot Mine, Henderson
County, Kentucky
b. All Licenses and Permits associated with the Patriot Mine, Henderson
County, Kentucky
c. Miscellaneous Equipment, Tools, Supplies, Fuel, Scrap, etc. located at
the Patriot Mine, Henderson County, Kentucky as of the Closing Date.
d. All coal stockpiles existing at the Patriot Mine at Closing.
34
<PAGE>
EXHIBIT 3.67
CERTIFICATE OF INCORPORATION
OF
PEABODY AMERICA, INC.
* * * *
1. The name of the corporation is
PEABODY AMERICA, INC.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
At all elections of directors of the corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for such provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected by him, and he may cast all of such votes
for a single director or may distribute them among the
<PAGE>
number to be voted for, or for any two or more of them as he may see fit.
5A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
- ---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
- ---- ---------------
G. H. MacLean 99 Wood Avenue South
Iselin, New Jersey 08830
J E. Lushefski 701 Market, Suite 700
St. Louis, Missouri 63101
P. J. Statile 99 Wood Avenue South
Iselin, New Jersey 08830
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
2
<PAGE>
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The by-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
3
<PAGE>
by-laws of the corporation; and, unless the resolution or by-laws, expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in whole
or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174
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of the Delaware General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 19th day of
October , 1992.
/s/ M.A. Brzoska
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/s/ K.A. Widdoes
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/s/ L.J. Vitalo
-------------------------
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PEABODY AMERICA, INC. EXHIBIT 3.68
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1993, shall be held on the first day of April if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 A.M., or at such
other date and
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time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the
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president and shall be called by the president or secretary at the request in
writing of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than
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thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
At all elections of directors of the corporation each stockholder
having voting power shall be entitled to exercise the right of cumulative voting
as provided in the certificate of incorporation.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without
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prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than ten. The first board shall
consist of three directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in
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office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure
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of the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president without notice to each director; special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of two directors unless the board consists of only one director; in
which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
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Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting
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and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of
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stock or to adopt a certificate of ownership and merger. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
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ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
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Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed
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and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it
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and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
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Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
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Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors
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may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or certificates,
or his legal representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or
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allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting: provided, however,
that the board of directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may
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be paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization
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and the words "Corporate Seal, Delaware". The seal may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
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EXHIBIT 3.69
CERTIFICATE OF INCORPORATION
OF
PEABODY COAL COMPANY
-----ooOoo-----
FIRST. The name of the corporation is
PEABODY COAL COMPANY.
SECOND. Its principal office in the State of Delaware is located at
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name and address of its resident agent is The Corporation Trust Company, No. 100
West Tenth Street, Wilmington, Delaware.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on are:
To carry on and conduct general mining operations with respect to the
recovery and removal of coal, ores, metals, stone, clay, sand, gravel, oil,
gas, petroleum, timber, and all minerals, mineral substances, combustible
substances, products and substances of all types, whether solid, liquid or
gaseous.
To mine, extract, remove, recover, and sever the aforesaid coal,
minerals, products, and substances.
To search for, prospect for, drill for, explore for, said coal,
minerals, products, and substances.
To manufacture, process, smelt, mill, treat, concentrate, refine,
prepare for market, and otherwise produce and deal in (both at wholesale
and retail) and with coal, coke, and all said minerals and substances and
products, and the by-products and end products thereof, of every kind and
description and by whatsoever process the same can or may now or hereafter
be produced.
To purchase, lease, rent, option, or in any way or in any manner
acquire or hold title or secure
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franchises or interests in coal, all substances and minerals, mineral
interests, mines, coal and mineral properties, mining claims and licenses,
franchises, rights and privileges, in any estate, interest or rights in
real property, personal or mixed property, and to develop and improve the
foregoing.
To lease, sell, exchange, or in any manner dispose of said interests
and properties, and interests therein.
To store, ship, transport, market, buy, sell, export, import, and
otherwise deal as principal, agent, or broker in coal, ores, metals, stone,
clay, sand, gravel, oil, gas, petroleum, timber, and all mineral, mineral
substances, products and substances of all types, whether solid, liquid or
gaseous, including coke and by-products and end products, and to transact
such other business and operations as may be advisable or necessary to
carry out the foregoing purposes.
To sink shafts, pipes, slopes, drifts, wells, and construct and
operate roads and roadways, reservoirs, pipelines, docks, barges, products
and material transfer and handling equipment.
To purchase, sell, use, maintain, lease, exchange, acquire, or dispose
of in any manner, develop and improve, equip and erect any machinery,
equipment, tools, fixtures, supplies, parts, appliances, plants, factories,
warehouses, stores, depots, dwellings, mines, coke ovens, oil and gas
wells, tipples, buildings, docks, pipelines, and structures of all types
and on property real or personal, useful or incidental to the business of
the corporation.
To make, manufacture, process, purchase, own, hold, use, improve,
develop, rent, lease, mortgage, encumber, pledge, buy, sell and otherwise
to acquire, use, dispose of and deal in and with, commodities, articles,
materials, goods, wares and merchandise, and other personal property of any
and all kinds and descriptions.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any
person, firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or
any foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights,
2
<PAGE>
trade-marks and trade names, relating to or useful in connection with any
business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital
stock, or any voting trust certificates in respect of the shares of capital
stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts,
and other securities, obligations, chooses in action and evidences of
indebtedness or interest issued or created by any corporations, joint stock
companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any
foreign government, or by any state, territory, province, municipality or
other political subdivision or by any governmental agency, and as owner
thereof to possess and exercise all the rights, powers and privileges of
ownership, including the right to execute consents and vote thereon, and to
do any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
To enter into, make and perform contracts of every kind and
description with any person, firm, association, corporation, municipality,
county, state, body politic or government or colony or dependency thereof.
To borrow or raise moneys for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment of any
thereof and of the interest thereon by mortgage upon or pledge, conveyance
or assignment in trust of the whole or any part of the property of the
corporation, whether at the time owned or thereafter acquired, and to sell,
pledge or otherwise dispose of such bonds or other obligations of the
corporation for its corporate purposes.
To loan to any person, firm or corporation any of its surplus funds,
either with or without security.
To purchase, hold, sell and transfer the shares of its own capital
stock, provided it shall not use its funds or property for the purchase of
its own shares of capital stock when such use would cause any impairment of
its capital except as otherwise permitted by law, and provided further that
shares of its own capital
3
<PAGE>
stock belonging to it shall not be voted upon directly or indirectly.
To have one or more offices, to carry on all or any of its operations
and business and without restriction or limit as to amount to purchase or
otherwise acquire, hold, own, mortgage, sell, convey or otherwise dispose
of, real and personal property of every class and description in any of the
states, districts, territories or colonies of the United States, and in any
and all foreign countries, subject to the laws of such state, district,
territory, colony or country.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of
Delaware upon corporations formed under the General Corporation Law of the
State of Delaware, and to do any or all of the things hereinbefore set
forth to the same extent as natural persons might or could do.
The objects and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in this
certificate of incorporation, but the objects and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent objects
and purposes.
FOURTH. The total number of shares of stock which the corporation
shall have authority to issue is Two Hundred Thousand (200,000) shares of the
par value of Ten Dollars ($10.), amounting in the aggregate to Two Million
Dollars, ($2,000,000).
FIFTH. The minimum amount of capital with which
___________________
Certificate of Incorporation Amended Jan. 29, 1968
4
<PAGE>
the corporation will commence business is One Thousand Dollars ($1,000.00).
SIXTH. The names and places of residence of the incorporators are as
follows:
NAMES RESIDENCES
----- ----------
B. J. Consono Wilmington, Delaware
F. J. Obara, Jr. Wilmington, Delaware
A. D. Grier Wilmington, Delaware
SEVENTH. The corporation is to have perpetual existence.
EIGHTH. The private property of the stockholders shall not he subject
to the payment of corporate debts to any extent whatever.
NINTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper
5
<PAGE>
purpose and to abolish any such reserve in the manner in which it was created.
By resolution passed by a majority of the whole board, to designate
one or more committees, each committee to consist of two or more of the
directors of the corporation, which, to the extent provided in the resolution or
in the by-laws of the corporation, shall have and may exercise the powers of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it. Such committee or committees shall have such name
or names as may be stated in the by-laws of the corporation or as may be
determined from time to time by resolution adopted by the board of directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of the holders of a majority of the voting stock issued and
outstanding, to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and for the best
interests of the corporation.
6
<PAGE>
TENTH. Meetings of stockholders may be held outside the State of
Delaware, if the by-laws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation. Elections of directors
need not be by ballot unless the by-laws of the corporation shall so provide.
ELEVENTH. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that the facts herein stated are true, and accordingly
have hereunto set our hands and seals this 20th day of March A.D. 1967.
B. J. Consono (SEAL)
-----------------
F. J. Obara, Jr. (SEAL)
-----------------
A. D. Grier (SEAL)
-----------------
7
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
PEABODY COAL COMPANY, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable an amendment to the Certificate of
Incorporation of said corporation as follows:
RESOLVED, That this Board of Directors considers the amendment of the
Company's Certificate of Incorporation by the addition thereto after
paragraph "ELEVENTH" of a new paragraph numbered "TWELFTH" and reading as
set forth below to be advisable and in accordance with the desire of the
Company's sole stockholder that the personal liability of the Company's
directors be eliminated or limited except in certain specified instances:
TWELFTH. A director of this corporation shall under no
circumstances have any personal liability to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director except for those specific breaches and acts or omissions with
respect to which the Delaware General Corporation Law expressly
provides that this provision shall not eliminate or limit such
personal liability of directors.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
8
<PAGE>
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said PEABODY COAL COMPANY has caused this certificate
to be signed by H. W. Williams, its President, and attested by J. L. Klinger,
its Secretary, this 12th day of November, 1986.
By: /s/ H.W. Williams
----------------------
H.W. Williams, President
ATTEST:
By: /s/ J. L. Klinger
--------------------------
J. L. Klinger, Secretary
9
<PAGE>
EXHIBIT 3.70
RESTATED BYLAWS
OF PEABODY COAL COMPANY
(As Amended August 16, 1990)
ARTICLE I
---------
OFFICES
Section 1. The principal office shall be in Wilmington, Delaware.
Section 2. The Company may have offices also at such other places
within and without the State of Delaware as the board of directors may from time
to time determine.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of New York, State of New York, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the Notice
of the Meeting. Meetings of stockholders for any other purpose may be held at
such time and place within or without the State of Delaware, as shall be stated
in the Notice of the Meeting or in a duly executed Waiver of Notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1972, shall be held during the month of April on such day, but not on a legal
holiday, and at such time as shall be designated from time to time by the board
of directors and stated in the Notice of the Meeting, at which time they shall
<PAGE>
2
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting, stating the time and
place thereof, shall be given at least ten days before the date of the meeting,
to each stockholder entitled to vote thereat.
Section 4. The officer who has charge of the stock ledger of the
Company shall prepare, at least ten days before every election of directors, a
complete list of the stockholders entitled to vote at said election, arranged in
alphabetical order with the residence of and the number of voting shares held by
each. Such list shall be open for ten days to the examination of any
stockholder at the office of the Company in the City and State where election is
to be held, and shall be produced and kept at the time and place of election
during the whole time thereof, and subject to the inspection of any stockholder
who may be present.
Section 5. Special meetings of the stockholders may be called by the
president and shall be called by the president or secretary by resolution of the
board of directors or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the Company issued and
outstanding and entitled to vote. Such resolution or request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting of stockholders,
stating the time, place and object thereof, shall
<PAGE>
3
be given to each stockholder entitled to vote thereat, at least ten days before
the date fixed for the meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation a different vote is required, in which case
such express provision shall govern and control the decision of such question.
<PAGE>
4
Section 10. Each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after one year from its date, unless the proxy provides for a longer
period; and, except where the transfer books of the Company have been closed or
a date has been fixed as a record date for the determination of its stockholders
entitled to vote, no share of stock shall be voted on at any election for
directors which has been transferred on the books of the Company within twenty
days next preceding such election of directors. No proxy or power of attorney
to vote shall be used to vote at a meeting of the stockholders unless it shall
have been filed with the secretary of the meeting when required by the
inspectors of election. All questions regarding the qualification of voters,
the validity of proxies and the acceptance or rejection of votes shall be
decided by two inspectors of election who shall be appointed by the board of
directors, or if not so appointed, then by the presiding officer of the meeting.
Section 11. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken in connection with any corporate action by any
provisions of the statutes or of the certificate of incorporation, the meeting
and vote of stockholders may be dispensed with if all the stockholders who would
have been entitled to vote upon the action if such meeting were held shall
consent in writing to such corporate action being taken.
<PAGE>
5
ARTICLE III
-----------
DIRECTORS
Section 1. The number of directors of the Company shall be fixed from
time to time by resolution adopted by the holders of two-thirds of the
outstanding shares of the Corporation entitled to vote thereon or by resolution
of a majority of the entire authorized number of directors, provided that no
decrease in the number of directors shall change the term of any director in the
office at the time thereof. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this article,
and each director shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected, unless sooner displaced.
Section 3. The business of the Company shall be managed by its board
of directors which may exercise all such powers of the Company and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
<PAGE>
6
Section 4. The board of directors of the Company may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held immediately following the adjournment of the meeting of
stockholders and at the place thereof. No notice of such meeting shall be
necessary to the directors in order legally to constitute the meeting, provided
a quorum be present. In the event such meeting is not so held, the meeting may
be held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the board of directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board of directors.
Section 7. Special meetings of the board of directors may be called
by the chairman, if one shall be elected, or in the case of his absence or
disability or if one shall not have been elected, by the president, and shall be
called by the secretary upon written request of two directors. Notice of
special meetings of the board of directors shall be given to each director at
least three days before the meeting if by mail, or at least twenty-four hours
before the meeting, if given in person or by telephone or by telegraph. The
notice need not specify the business to be transacted.
Section 8. At meetings of the board of directors, a majority of the
directors at the time in office shall constitute
<PAGE>
7
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the board of directors. Where the number of directors is fixed at one under
Section 1, then one
director shall constitute a quorum. If a quorum shall not be present at any
meeting of the board of directors the directors present thereat may adjourn the
meeting from time to time without notice other than announcement at the meeting
until a quorum shall be present.
Section 9. The board of directors may, at its discretion at any
meeting of the board of directors, elect from among the directors an executive
committee, in addition to the president who shall be a member of ex officio, of
----------
such number of directors, not less than two nor more than five, as from time to
time may be prescribed by the board of directors, who, if elected, shall hold
office until the first meeting of each newly elected board of directors or until
their successors are elected and shall qualify. In electing the executive
committee, the board of directors shall designate one of the members thereof to
serve as chairman of the committee. The board of directors shall promptly fill
all vacancies in the executive committee or chairmanship thereof as they occur.
The executive committee, when the board of directors is not in
session, shall have and may exercise all of the powers and authority of the
board of directors in the management of the business and affairs of the Company,
whether conferred in these Bylaws or otherwise, except: (1) to the extent, if
any, that such
<PAGE>
8
powers and authority may be limited by resolution of the board of directors; (2)
to amend the articles of incorporation of the Company; (3) to adopt a plan of
merger or consolidation with another corporation or corporations; (4) to
recommend to the shareholders the sale, lease, exchange, mortgage, pledge or
other disposition of all or substantially all of the property and assets of the
Company if not made in the usual and regular course of its business; (5) to
recommend to the shareholders a voluntary dissolution of the Company or a
revocation thereof; (6) to amend, alter, or repeal the Bylaws of the Company;
(7) to elect or remove officers of the Company or members of the executive
committee; (8) to fix the compensation of any member of the executive committee;
(9) to declare dividends; or (10) to amend, alter or repeal any resolution of
the board of directors which by its terms provides that it shall not be amended,
altered or repealed by the executive committee.
The executive committee shall fix its own rules of procedure, and
shall meet at such time and place as shall be provided by such rules. It shall
keep a record of its acts and proceedings, and all actions of the committee
shall be reported to the board of directors at the next meeting of the board.
At each meeting of the committee the presence of at least a majority of the
members shall be necessary to, and shall constitute a quorum. The affirmative
vote of a majority of the members present at a meeting at which a quorum is
present shall be necessary to, and shall constitute, action by the committee.
<PAGE>
9
Each member of the executive committee shall be entitled to a fee for
attendance at each meeting of the committee, to be fixed from time to time by
the board of directors, and to receive reimbursement for his reasonable expenses
incurred in attending such meetings.
Any action which may be taken at a meeting of the executive committee
may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the members of such committee and filed with
the minutes of proceedings of the committee.
Section 10. The board of directors may, by resolution adopted by a
majority of the entire authorized number of directors, create, name and elect
the members of one or more other committees, each committee to consist of two or
more of the directors of the Company, which, to the extent provided in the
resolution, shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the Company and may authorize the
seal of the Company to be affixed to all papers which may require it. The
members of any such committee present at any meeting and not disqualified from
voting may, whether or not they constitute a quorum, unanimously appoint another
member of the board of directors to act at the meeting in the place of any
absent or disqualified member.
Section 11. The committees shall keep regular minutes of their
proceedings and report the same to the board of directors.
<PAGE>
10
Section 12. Any action required or permitted to be taken at any
meeting of the board of directors or of any committee thereof may be taken
without a meeting if prior to such action a written consent thereto is signed by
all members of the board or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the board or
committee.
Section 13. The directors shall be paid their reasonable expenses of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the Company
in any other capacity and receiving compensation therefor. Members of special
or standing committees may be allowed like reimbursement and compensation for
attending committee meetings.
ARTICLE IV
----------
NOTICES
Section 1. Notices to directors and stockholders mailed to them at
their addresses appearing on the books of the Company shall be deemed to be
given at the time when deposited in the United States mail.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether
<PAGE>
11
before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V
---------
OFFICERS
Section 1. OFFICERS TO BE ELECTED. The officers of the Company shall
be elected by the board of directors at its first meeting after each annual
meeting of the stockholders and shall be a president, one or more vice
presidents, a secretary, a treasurer and a controller. The board of directors
may, in its discretion, also elect a chairman of the board, a vice chairman of
the board, one or more executive vice presidents, and one or more senior vice
presidents. The board of directors may also elect one or more assistant vice
presidents, assistant secretaries, assistant treasurers and assistant
controllers, and such other officers as deemed necessary.
Section 2. REMOVAL AND VACANCIES. The officers of the Company shall
hold office at the pleasure of the board of directors. Any officer may resign
at any time upon written notice to the Company. A resignation shall become
effective when and as specified in the notice, or in the absence of such
specification, upon its acceptance by the Company. Any officer may be removed
at any time, with or without cause, by the affirmative vote of the majority of
the whole board of directors. The board of directors may fill any vacancy
created by death, resignation, removal or otherwise.
Section 3. CHAIRMAN OF THE BOARD. The chairman of the board, if one
be elected, shall preside at all meetings of the
<PAGE>
12
shareholders and the board of directors and shall perform such other duties as
may from time to time be prescribed by the board of directors.
Section 4. VICE CHAIRMAN OF THE BOARD. The vice chairman of the
board (also known as "vice chairman"), if one shall be elected, shall have such
duties and authority as may be prescribed from time to time by the chairman of
the board of directors.
Section 5. PRESIDENT. The president shall be the chief executive
officer of the Company and shall be directly responsible to the board of
directors for all the business affairs of the Company. Subject to the authority
of the board of directors, he shall have general supervision, charge, direction
and active management of the business, operations, sales and other affairs of
the Company and shall see that all orders and resolutions of the board of
directors are carried into effect. He shall, unless a chairman be elected and
present, preside at all meetings of the shareholders and the board of directors.
He may sign, in conjunction with such other officer or officers of the Company
as may be designated by the board of directors, checks and certificates of stock
of the Company, and sign and execute all authorized bonds, contracts or other
obligations in the name of the Company, appoint and discharge assistants,
agents, and employees, and shall also perform such other duties as may from time
to time be prescribed by the board of directors.
Section 6. VICE PRESIDENTS. The vice president, including any
executive vice presidents and senior vice
<PAGE>
13
presidents, if any, shall be elected, shall act under the direction of the
president and shall perform all such duties and have such powers as the
president or the board of directors may from time to time prescribe. Any vice
president of the Company, including any executive vice president and senior vice
president, if any, shall be elected, shall have authority to sign contracts,
agreements, conveyances and other instruments and documents in the name and on
behalf of the Company to the extent authorized by the board of directors by
resolution, or in writing by the president.
Section 7. SECRETARY AND ASSISTANT SECRETARIES. The secretary shall
attend all meetings of the board of directors and all meetings of the
stockholders and record the proceedings. He shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the
president or the board of directors. He shall keep in safe custody the seal of
the Company and, when authorized by the president or the board of directors,
cause it to be affixed to any instrument requiring it. In the absence or
disability of the secretary, the assistant secretaries shall perform the duties
and exercise the powers of the secretary, and shall perform such other duties
and have such other powers as the president or the board of directors may from
time to time prescribe.
<PAGE>
14
Section 8. TREASURER AND ASSISTANT TREASURER. The treasurer shall
have custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Company and shall deposit all monies and other valuable effects in the name and
to the credit of the Company in such depositories as may be authorized by the
board of directors. He shall disburse the funds of the Company as may be
ordered by the president or the board of directors, taking proper vouchers for
such disbursements, and shall render to the president and the board of
directors, at its regular meetings, or when the board of directors so requires,
an account of all his transactions as treasurer and of the financial condition
of the Company. He may affix or cause to be affixed the seal of the Company to
documents so requiring. In the absence or disability of the treasurer, the
assistant treasurers shall perform the duties and exercise the powers of the
treasurer, and shall perform such other duties and have such other powers as the
president or the board of directors may from time to time prescribe.
Section 9. CONTROLLER AND ASSISTANT CONTROLLERS. The controller
shall be the chief accounting officer of the Company. He shall keep, or cause
to be kept, all books of account and accounting records of the Company and shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the Company. He shall
prepare, or cause to be prepared, appropriate financial statements for the
Company and shall have such other powers and
<PAGE>
15
perform such other duties as may be prescribed by the president or the board of
directors. In the absence or disability of the controller, the assistant
controllers shall perform the duties and exercise the powers of the controller
and shall have such other powers and perform such other duties as may be
prescribed by the president or the board of directors.
ARTICLE VI
----------
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Company shall be entitled to
have a certificate, signed by, or in the name of the Company by, the president
or a vice president and the treasurer or an assistant treasurer or the secretary
or an assistant secretary of the Company, certifying the number of shares owned
by him in the Company.
Section 2. If a certificate is signed (1) by a transfer agent or an
assistant transfer agent or (2) by a transfer clerk acting on behalf of the
Company and a registrar, the signature of any such president, vice president,
treasurer, assistant treasurer, secretary or assistant secretary may be a
facsimile. In case any officer or officers who have signed, or whose facsimile
signature or signatures have been used on, any such certificate or certificates,
shall cease to be such officer or officers of the Company, whether because of
death, resignation or otherwise, before such certificate or certificates have
been delivered by the Company, such certificate or certificates may nevertheless
be adopted by the Company and be issued and delivered as though the person or
persons who signed such
<PAGE>
16
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the Company. The
seal of the Company or a facsimile thereof may, but need not, be affixed to
certificates of stock.
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Company alleged to have been lost or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost or destroyed. When authorizing such issue of a new
certificate or certificates, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such lost
or destroyed certificate or certificates, or his legal representative, to give
the Company a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost or destroyed.
Section 4. Upon surrender to the Company or the transfer agent of the
Company of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Company, if it is satisfied with all provisions of the certificate
of incorporation and these Bylaws regarding transfer of shares have been
complied with, to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
<PAGE>
17
Section 5. The board of directors may close the stock transfer books
of the Company for a period not exceeding fifty days preceding the date of any
meeting of stockholders or the date for payment of any dividend or the date for
the allotment of rights or the date when any change or conversion or exchange of
capital stock shall go into effect or for a period of not exceeding fifty days
in connection with obtaining the consent of stockholders for any purpose. In
lieu of closing the stock transfer books as aforesaid, the board of directors
may fix in advance a date, not exceeding fifty days preceding the date of any
meeting of stockholders, or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect or a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting, and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such case such stockholders and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any
<PAGE>
18
transfer of any stock on the books of the Company after any such record date
fixed as aforesaid.
Section 6. The Company shall be entitled to recognize the person
registered on its books as the owner of shares to be the exclusive owner for all
purposes including voting and dividends, and the corporation shall not be bound
to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
-----------
MISCELLANEOUS
Section 1. There may be set aside out of any funds of the Company
available for dividends such sum or sums as the board of directors from time to
time, in its absolute discretion may think proper, as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Company, or for the purchase of additional property, or for
such other purpose as the directors shall think conducive to the interest of the
Company, and the board of directors may modify or abolish any such reserve.
Section 2. All checks or demands for money and notes of the Company
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
19
Section 3. The fiscal year of the Company shall be the twelve
calendar month period from October 1 to and including September 30 of each year.
Section 4. The corporate seal shall have inscribed thereon the name
of the Company, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
------------
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 1. The Company shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof) who was or is made, or threatened to be made, a party to
an action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether involving any actual or alleged breach of duty, neglect
or error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is serving or
served in any capacity at the request of the Company, by reason of the fact that
he, his testator or intestate is or was a director or officer of the
<PAGE>
20
Company, or is serving or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement, and costs, charges and
expenses, including attorneys' fees, incurred therein or in any appeal thereof.
Section 2. The Company shall indemnify other persons and reimburse
the expenses thereof, to the extent required by applicable law, and may
indemnify any other person to whom the Company is permitted to provide
indemnification or the advancement of expenses, whether pursuant to rights
granted pursuant to, or provided by, the Delaware General Corporation Law or
otherwise.
Section 3. The Company shall, from time to time, reimburse or advance
to any person referred to in Section 1 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action,
suit or proceeding referred to in Section 1, upon receipt of a written
undertaking by or on behalf of such person to repay such amount(s) if a judgment
or other final adjudication adverse to the director or officer establishes that
(i) his acts were committed in bad faith or were the result of active and
deliberate dishonesty and, in either case, were material to the cause of action
so adjudicated, (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled, or (iii) his conduct was
otherwise of a character such that Delaware law would require that such
amount(s) be repaid.
<PAGE>
21
Section 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred in clause (i), in any capacity shall be
deemed to be doing so at the request of the Company.
Section 5. Any person entitled to be indemnified or to the
reimbursement or advancement of expenses as a matter of right pursuant to this
Article may elect to have the right to indemnification (or advancement of
expenses) interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the action, suit or
proceeding, to the extent permitted by applicable law, or on the basis of the
applicable law in effect at the time indemnification is sought.
Section 6. The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
Section 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not
<PAGE>
22
paid in full by the Company within thirty days after a written claim has been
received by the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant shall be entitled also to be paid the expenses
of prosecuting such claim. Neither the failure of the Company (including its
Board of Directors, independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the Company (including its Board
of Directors, independent legal counsel, or its stockholders) that the claimant
is not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
(Amended October 16, 1986.)
ARTICLE IX
----------
AMENDMENTS
Section 1. The Bylaws may be amended by a majority vote of all of the
stock issued and outstanding and entitled to vote at any annual or special
meeting of the stockholders, provided notice of intention to amend shall have
been contained in the notice of the meeting.
Section 2. The board of directors by a majority vote of the whole
board at any meeting may amend these Bylaws,
<PAGE>
23
including Bylaws adopted by the stockholders, but the stockholders may from time
to time specify particular provisions of the Bylaws which shall not be amended
by the board of directors.
/s/ John Goroncy
-----------------------------
John Goroncy
/s/ F. L. Burkofske
-----------------------------
F.L. Burkofske
[executed]
----------------------------------
Secretary
October 16, 1986
----------------------------------
Date
* * * * * *
<PAGE>
EXHIBIT 3.71
CERTIFICATE OF INCORPORATION
OF
PEABODY COALSALES COMPANY
* * * * *
1. The name of the corporation is
PEABODY COALSALES COMPANY
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and
deal with goods, wares and merchandise and personal property of every class and
description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
<PAGE>
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive, hold,
own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise
dispose of or deal in and with any of the shares of the capital stock, or any
voting trust certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, chooses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign government, or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
To borrow or raise money for any of the purposes of the corporation and,
from time to time without limit as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other
2
<PAGE>
negotiable or non-negotiable instruments and evidences of indebtedness, and to
secure the payment of any thereof and of the interest thereon by mortgage upon
or pledge, conveyance or assignment in trust of the whole or any part of the
property of the corporation, whether at the time owned or thereafter acquired,
and to sell, pledge or otherwise dispose of such bonds or other obligations of
the corporation for its corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with real or personal property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of the corporation's property and assets,
or any interest therein, wherever situated. In general, to possess and exercise
all the powers and privileges granted by the General Corporation Law of Delaware
or by any other law of Delaware or by this Certificate of Incorporation together
with any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
or purposes of the corporation.
The business and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in no wise limited or restricted by reference to,
or inference from, the terms of any other clause in this certificate of
incorporation, but the business and purposes specified in each of
3
<PAGE>
the foregoing clauses of this article shall be regarded as independent business
and purposes.
4. The total number of shares of stock which the corporation shall have
authority to issue is one thousand (1,000) and the par value of each of such
shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper
4
<PAGE>
purpose and to abolish any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee who may replace any absent or disqualified member at any meeting of
the committee. The by-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or by-laws expressly so
provide, no such committee shall have the power or
5
<PAGE>
authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in whole
or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the by-
laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation .
10. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
6
<PAGE>
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 3rd day of June, 1992.
/s/ M. A. Brzoska
-----------------------
M. A. Brzoska
Incorporator
/s/ K. A. Widdoes
-----------------------
K. A. Widdoes
Incorporator
/s/ L. J. Vitalo
-----------------------
L. J. Vitalo
Incorporator
7
<PAGE>
EXHIBIT 3.72
PEABODY COALSALES COMPANY
* * * * *
BY-LAWS
* * * * *
ARTICLE I
---------
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1993, shall be held on the first day of May if not a legal holiday, and if a
legal holiday, then on the next secular
<PAGE>
day following, at 10:00 A.M., or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the
2
<PAGE>
president and shall be called by the president or secretary at the request in
writing of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for
3
<PAGE>
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at
4
<PAGE>
a meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
-----------
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be three. The directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at
5
<PAGE>
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
6
<PAGE>
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings
7
<PAGE>
are filed with the minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the
8
<PAGE>
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
certificate of incorporation, (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the board of directors as provided in Section 151(a) fix any
of the preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation) adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from tire to time by resolution
adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
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COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
----------
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same
10
<PAGE>
shall be deposited in the United States mail. Notice to directors may also be
given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
---------
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
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Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so
12
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acting, shall have all the powers of and be subject to all the restrictions upon
the president. The vice-presidents shall perform such other duties and have
such other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and
13
<PAGE>
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there
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<PAGE>
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE VI
----------
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer
15
<PAGE>
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the
16
<PAGE>
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. Upon receipt of
proper transfer instructions from the registered owner of uncertificated shares
such uncertificated shares shall be cancelled and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such
17
<PAGE>
owner, and to hold liable for calls and assessments a person registered on its
books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
-----------
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
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<PAGE>
ARTICLE VIII
------------
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
20
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EXHIBIT 3.73
CERTIFICATE OF INCORPORATION
OF
COALTRADE, INC.
* * * * *
1. The name of the corporation is
COALTRADE, INC.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
<PAGE>
5A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
C. G. Farrand 701 Market Street, Suite 830
St. Louis, MO 63101
R. M. Whiting 701 Market Street, Suite 830
St. Louis, MO 63101
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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<PAGE>
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true,
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<PAGE>
and accordingly have hereunto set our hands this 4th day of February, 1994.
/s/ M. A. Brzoska
-----------------
M. A. Brzoska
/s/ K. A. Widdoes
-----------------
K. A. Widdoes
/s/ L. J. Vitalo
-----------------
L. J. Vitalo
4
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
********
COALTRADE, INC., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the Board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of COALTRADE, INC. be
amended by changing the 1. Article thereof so that, as amended, said
Article shall be and read as follows:
1. The name of the corporation is Peabody COALTRADE, Inc.
SECOND: That in lieu of a meeting and vote of stockholders, the stockholders
have given unanimous written consent to said amendment in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
5
<PAGE>
IN WITNESS WHEREOF, said COALTRADE, INC. has caused this certificate to be
signed by T.S. Hilton, its Vice President and Treasurer, this 10th day of July,
1997.
COALTRADE, INC.
By:/s/ T.S. Hilton
--------------------------
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EXHIBIT 3.74
COALTRADE, INC.
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
---------
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1995, shall be held on the first day of April if not a legal holiday, and if a
legal holiday, then on the next
<PAGE>
secular day following, at 10 A. M., or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor mere than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute
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<PAGE>
or by the certificate of incorporation, may be called by the president and shall
be called by the president or secretary at the request in writing of a majority
of the board of directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at
3
<PAGE>
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of
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<PAGE>
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
ARTICLE III
-----------
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than three. The first board shall
consist of two directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office
5
<PAGE>
shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as
6
<PAGE>
shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written waiver
signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one days' notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a
7
<PAGE>
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
8
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Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
9
<PAGE>
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
----------
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice,
10
<PAGE>
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
---------
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall
11
<PAGE>
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the
12
<PAGE>
vice-presidents in the order designated by the directors, or in the absence of
any designation, then in the order of their election) shall perform the duties
of the president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The vice-presidents shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination,
13
<PAGE>
then in the order of their election) shall, in the absence of the secretary or
in the event of his inability or refusal to act, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and
14
<PAGE>
other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
----------
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of
15
<PAGE>
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
16
<PAGE>
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
17
<PAGE>
meeting: provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
-----------
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
18
<PAGE>
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
19
<PAGE>
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
20
<PAGE>
EXHIBIT 3.75
CERTIFICATE OF INCORPORATION
OF
PREMIER COAL SALES COMPANY
* * * * *
1. The name of the corporation is PREMIER COAL SALES COMPANY.
2. The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is One Hundred Dollars ($100.00) in the aggregate to One Hundred
Thousand Dollars ($100,000.00).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19801
B. A. Schuman 100 West Tenth Street,
Wilmington, Delaware 19801
E. L. Kinsler 100 West Tenth Street,
Wilmington, Delaware 19801
<PAGE>
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the board of directors or in the by-laws of the corporation.
9. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true,
2
<PAGE>
and accordingly have hereunto set our hands this 28th day of July, 1982.
/s/ K. L. Husfelt
------------------
K. L. Husfelt
/s/ B. A. Schuman
------------------
B. A. Schuman
/s/ E. L. Kinsler
------------------
E. L. Kinsler
3
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
PREMIER COAL SALES COMPANY, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of PREMIER
COAL SALES COMPANY be amended by changing the Article 1.
thereof so that, as amended, said Article shall be and read
as follows:
:1. The name of the corporation is
PEABODY DEVELOPMENT COMPANY."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of sections 242 and 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, said PREMIER COAL SALES COMPANY has caused this
certificate to be signed by W. W. Mason its
4
<PAGE>
President, and attested by J. J. Gazzoli, its Assistant Secretary, this 16th day
of November, 1982.
By: /s/ W. W. Mason
--------------------------
W. W. Mason, President
ATTEST:
By: /s/ J. J. Gazzoli
-------------------------------
J. J. Gazzoli, Assistant Secretary
5
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
PEABODY DEVELOPMENT COMPANY, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, That, in order to provide for an increase in the total number of
shares which the Company shall have authority to issue, which increase is deemed
to be advisable, the Certificate of Incorporation of PEABODY DEVELOPMENT COMPANY
shall be amended by changing Article 4 thereof so that, as amended, said Article
shall be and read as follows:
"4. The total number of shares of stock which the corporation shall have
authority to issue is two million five hundred thousand (2,500,000) and the
par value of each of such shares is Ten Dollars ($10.00) in the aggregate
to Twenty Five Million Dollars ($25,000,000.00)."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of section 242 and 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, said PEABODY DEVELOPMENT COMPANY has
6
<PAGE>
caused this certificate to be signed by W. V. Hartman its President, and
attested by J. J. Gazzoli, its Assistant Secretary, this 6th day of January,
1983.
By: /s/ W. V. Hartman
-------------------------
President
ATTEST:
By: J. J. Gazzoli
--------------------------------
Assistant Secretary
7
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
PEABODY DEVELOPMENT COMPANY, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable an amendment to the Certificate of
Incorporation of said corporation as follows:
RESOLVED, That this Board of Directors considers the amendment of the
Company's Certificate of Incorporation by the addition thereto after
paragraph "9" of a new paragraph numbered "10" and reading as set forth
below to be advisable and in accordance with the desire of the Company's
sole stockholder that the personal liability of the Company's directors be
eliminated or limited except in certain specified instances:
10. A director of this corporation shall under no circumstances
have any personal liability to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director except for
those specific breaches and acts or omissions with respect to which
the Delaware General Corporation Law expressly provides that this
provision shall not eliminate or limit such personal liability of
directors.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
8
<PAGE>
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said PEABODY DEVELOPMENT COMPANY has caused this
certificate to be signed by I. F. Engelhardt, its Vice President, this 11th day
of November, 1986.
By: /s/ I. F. Engelhardt
--------------------------------
I. F. Engelhardt, Vice President
ATTEST:
By: /s/ J. J. Gazzoli
------------------------
J. J. Gazzoli, Secretary
9
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * * *
PEABODY DEVELOPMENT COMPANY, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, That, in order to provide for a decrease in the total number of
shares which the Company shall have authority to issue, which decrease is
deemed to be advisable, the Certificate of Incorporation of PEABODY
DEVELOPMENT COMPANY shall be amended by changing Article 4 thereof so that,
as amended, said Article shall be and read as follows:
"4. The total number of shares of stock which the corporation shall
have authority to issue is Ten (10) and the par value of each of such
shares is Ten Dollars ($10.00) in the aggregate to One Hundred Dollars
($100.00)."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the state of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of section 242 and 228 of the General Corporation Law of
the State of Delaware.
10
<PAGE>
IN WITNESS WHEREOF, said PEABODY DEVELOPMENT COMPANY has caused this
certificate to be signed by J. W. Blackburn its President, and attested by J. C.
Sevem, its Secretary, this 23rd day of October, 1992.
By:/s/ J. W. Blackburn
----------------------------
J. W. Blackburn
President
ATTEST:
By: /s/ J. C. Sevem
-----------------------
J. C. Sevem, Secretary
11
<PAGE>
EXHIBIT 3.76
PEABODY DEVELOPMENT COMPANY
---------------------------
RESTATED
BY-LAWS
ARTICLE I
---------
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Lexington, State of Kentucky, at such
place as may be fixed from time to time by the Board of Directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held in April at
such date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a
<PAGE>
Board of Directors, and transact such other business as may properly be brought
before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the chairman of the Board of Directors or the
president and shall be called by the chairman of the Board of Directors, the
president or secretary at the request in writing of a majority of the Board
2
<PAGE>
of Directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record
3
<PAGE>
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes or
of the certificate of incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present
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and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
-----------
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be at least one (1) and not more than ten (10). The number of
directors, within the limits above specified, shall be determined by resolution
of the Board of Directors or of the stockholders. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
2 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders
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holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected Board of Directors
shall be held annually, immediately following the adjournment of the annual
meeting of the stockholders at such time and place as shall be fixed by the vote
of the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of
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Directors, or as shall be specified in a written waiver signed by all of the
directors.
Section 6. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
chairman or the president on five days notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
chairman, the president or secretary in like manner and on like notice on the
written request of two directors unless the board consists of only one director,
in which case special meetings shall be called by the chairman, the president or
secretary in like manner and on like notice on the written request of the sole
director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. When
the number of directors is fixed at one under Section 1, then one director shall
constitute a quorum. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action
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required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board or
committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation, or these by-laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they
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constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the Board of
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Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
----------
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
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Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
---------
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
Board of Directors and shall be a president, a vice-president, a secretary and a
treasurer. The Board of Directors may elect from among its number a chairman
who shall preside at all meetings of the stockholders and the board. The Board
of Directors may also choose additional vice-presidents, and one or more
assistant secretaries and assistant treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation or these by-
laws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
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Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
corporation shall be filled by the Board of Directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation and shall preside at all meetings of the stockholders and the Board
of Directors in the absence or inability to act of the chairman of the Board of
Directors. He shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
ability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election)
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shall perform the duties of the president, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, of if there be more than one,
the assistant secretaries in the order determined by the Board of Directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act,
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perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall keep or cause to be kept, all books
of accounts and accounting records of the Company and shall keep and maintain,
or cause to be kept and maintained, adequate and correct accounts of the
properties and business transactions of the Company. He shall prepare, or cause
to be prepared, appropriate financial statements for the Company and shall
render to the president and the Board of Directors, at its regular meeting, or
when the Board of Directors so requires, an accounting of all his transactions
as treasurer and the financial condition of the Company. He shall have custody
of the Company funds and securities and shall keep or cause to be kept, full and
accurate accounts of receipts or disbursements of books belonging to the Company
and shall deposit, or cause to be deposited, all monies and other valuable
effects in the name and to the credit of the Company in such depositories as may
be authorized by the Board of Directors.
Section 12. If required by the Board of Directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and
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other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 13. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
ARTICLE VI
----------
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by
the president or a vice-president and the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by him in the
corporation.
Section 2. Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation, with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
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LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent
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<PAGE>
to corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stock holders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting provided, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
-----------
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of
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incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
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INDEMNIFICATION
Section 6. (a) The Company shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof) who was or is made, or threatened to be made, a party to
an action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether involving any actual or alleged breach of duty, neglect
or error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is serving or
served in any capacity at the request of the Company, by reason of the fact that
he, his testator or intestate is or was a director or officer of the Company, or
is serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts referred in clause (i), in any capacity shall be deemed to be
doing so at the request of the Company.
(e) Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article may elect
to have the right to indemnification (or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the
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occurrence of the event or events giving rise to the action, suit or proceeding,
to the extent permitted by applicable law, or on the basis of the applicable law
in effect at the time indemnification is sought.
(f) The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Section (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
(g) If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the Company (including its Board
of Directors, independent legal
20
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counsel, or its stockholders) that the claimant is not entitled to
indemnification or to the reimbursement or advancement of expenses, shall be a
defense to the action or create a presumption that the claimant is not so
entitled.
ARTICLE VIII
------------
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the Board of Directors at any regular meeting of the
Board of Directors or at any special meeting of the Board of Directors if notice
of such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting.
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EXHIBIT 3.77
CERTIFICATE OF INCORPORATION
OF
PEABODY POWERTRADE, INC.
1. The name of the corporation is Peabody POWERTRADE, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is One Thousand (1,000) and the par value of each of such
shares is Ten Dollars and No Cents ($10.00) amounting in the aggregate to Ten
Thousand Dollars and No Cents ($10,000.00).
5. The board of directors is authorized to make, alter or repeal the by-
laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the sole incorporator is:
K. A. Widdoes
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
8. The corporation shall indemnify its officers, directors, employees and
agents to the extent permitted by the General Corporation Law of Delaware.
<PAGE>
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 23rd day of July, 1996.
K. A. Widdoes
-------------
K. A. Widdoes
Sole Incorporator
2
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
PEABODY POWERTRADE, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the Board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of PEABODY POWERTRADE, INC.
be amended by changing the First Article thereof so that, as amended, said
Article shall be and read as follows:
PEABODY ENERGY SOLUTIONS, INC.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given written consent to said amendment in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware and written notice of the adoption of the amendment has been given as
provided in Section 228 of the General Corporation Law of the State of Delaware
to every stockholder entitled to such notice.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
3
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IN WITNESS WHEREOF, said PEABODY POWERTRADE, INC. has caused
this certificate to be signed by T. S. Hilton, its V.P. and Treasurer, this 9th
day of October, 1997.
PEABODY POWERTRADE, INC.
By: /s/ T.S. Hilton
-----------------------------
T.S. Hilton
Vice President and Treasurer
4
<PAGE>
EXHIBIT 3.78
PEABODY POWERTRADE, INC.
* * * * *
BY - LAWS
* * * * *
ARTICLE I
---------
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
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Section 2. Annual meetings of stockholders, commencing with the year
1997, shall be held on May 1st if not a legal holiday, and if a legal holiday,
then on the next secular day following, at 10 A.M., or at such other date and
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
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Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
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meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting
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forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
-----------
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than three. The first board shall
consist of two directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in
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office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected, directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first
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meeting of the newly elected board of directors, or in the event such meeting is
not held at the time and place so fixed by the stockholders, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the board of directors, or as shall
be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on zero days' notice to each director, either personally or by mail or
by facsimile telecommunication; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board two directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
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Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they
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constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified
member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of
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directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
----------
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
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Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
---------
OFFICERS
Section 1. The officers of the corporation, shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
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Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall
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perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the
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absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
----------
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
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claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares shall be cancelled and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent
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to corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
-----------
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of
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incorporation, if any, may be declared by the board of directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
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SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
------------
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
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EXHIBIT 3.79
RESTATED CERTIFICATE OF INCORPORATION
OF
PEABODY HOLDING COMPANY, INC.
Under Section 807 of the Business Corporation Law
The undersigned, J. H. Wimberly and J. L. Klinger, being respectively
the President and the Secretary of PEABODY HOLDING COMPANY, INC., in accordance
with Section 807 of the Business Corporation Law of the State of New York,
hereby certify as follows:
1. The name of the corporation is PEABODY HOLDING COMPANY, INC.
(hereinafter sometimes called the "Corporation").
2. The Certificate of Incorporation of the Corporation was filed by
the Department of State of the State of New York on January 17, 1977.
3. A Restated Certificate of Incorporation of the Corporation was
filed by the Department of State of the State of New York on April 18, 1990.
4. The Certificate of Incorporation as now in full force and effect
is hereby amended to effect the following changes as authorized in Section 801
of the Business Corporation Law:
a. To delete Article SIXTH in its entirety, which pertains to the fiscal
year for reporting the franchise tax on business corporations imposed
by Article 9-A of the Tax Law.
b. To amend Article EIGHTH (formerly Article NINTH) in its entirety to
delete the provisions that certain actions of the Corporation shall
require the affirmative vote of a supermajority of the members of the
Board of Directors of the Corporation.
<PAGE>
5. The Certificate of Incorporation is hereby
restated to set forth its entire text as amended as follows:
FIRST: The name of the corporation shall be PEABODY HOLDING COMPANY,
INC. (hereinafter sometimes called the "Corporation").
SECOND: The purposes for which the Corporation is being formed are as
follows:
1. To acquire-by subscription, purchase or otherwise, to hold for
investment or for resale, to sell, pledge, hypothecate and to issue in
exchange therefor its shares, bonds or other obligations, and in all ways
deal with: stocks, shares, script, bonds, debentures, mortgages, notes,
trust receipts, certificates, evidences of indebtedness, interim receipts
and other obligations and securities of corporations, private, public,
quasi-public or municipal, foreign or domestic. To collect the interest and
dividends on its holdings and the principal sum thereof when due. To do all
things suitable and proper for the protection, conservation or enhancement
of the value of the stocks, shares, securities, evidences of indebtedness
or other properties held by it, including, but not limited to, the exercise
of the right to vote thereon, and the right to -participate in the
management of said corporations.
2. To purchase or otherwise acquire, hold, own, sell, lease or
otherwise dispose of real property, improved or unimproved, and personal
property, tangible or intangible, including, without limitation, products,
goods, wares, and merchandise of every description and the securities and
obligations of any issuer, whether or not incorporated.
3. To conduct its business and maintain offices and agencies, so far
as permitted by law, in the State of New York and in any or in all other
states of the United States of America, its territories, dependencies and
possessions, including the District of Columbia, and in any foreign
country, state or territory.
4. To carry on the business of mining, producing, procuring,
acquiring, buying, selling, transporting, and otherwise disposing of and
turning into account and dealing in coal and coal products and other
subsoil and surface products of all kinds, together with any other
substances or by-products thereof; and to acquire, hold and use any and all
leases, licenses, easements, rights, permits, grants, concessions and real
and personal property necessary or required for such purposes.
5. To carry out all or any part of the foregoing purposes directly or
indirectly, as principal, factor, agent, broker, contractor or otherwise,
either alone or in
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conjunction with any persons, firms, associations, corporations or others
in any part of the world through wholly or partially owned subsidiaries, as
a partner, limited or general, in any partnership, as a joint venturer in
any joint venture, or otherwise; and in carrying on its business and for
the purpose of attaining or furthering any of its purposes, to make and
perform contracts of any kind and description, with any person or entity,
and to do anything and everything necessary, suitable, convenient or proper
for the accomplishment of any of the purposes herein enumerated.
6. In general, to engage in any activity which may promote the
interests of the Corporation or increase the value of its property to the
fullest extent permitted by law and, in furtherance of the foregoing and
other purposes enumerated herein, to have and exercise all the powers now
and hereafter conferred by the laws of the State of New York upon
corporations formed under the Business Corporation Law of such state,
subject, however, to any limitations contained in Article 2 (Corporate
Purposes and Powers) of said Business Corporation Law, and to do any or all
of the things hereinbefore set forth to the same extent as natural persons
might or could do them.
THIRD: The office of the Corporation in the State of New York is to
be located in the City of New York, County of New York.
FOURTH: The aggregate number of shares which the Corporation shall
have authority to issue is five hundred thousand (500,000) shares of Common
Stock, par value $1.00 per share, all of which are of the same class.
Except as otherwise required by law and the provisions of this
Certificate of Incorporation, as amended from time to time, the holders of
the Common Stock of the Corporation possess full voting power for the
election of directors and for all other purposes, and each holder thereof
shall be entitled to one vote for each share held by such holder.
The holders of shares of the Corporation shall have no preemptive or
preferential rights to subscribe for or purchase any shares of the
Corporation or any rights or options to purchase shares of the Corporation
or any shares or other securities convertible into or carrying rights or
options to purchase shares of the Corporation.
FIFTH: The Secretary of State is designated as the agent of the
Corporation upon whom process against the Corporation may be served. The
address to which the Secretary of State shall mail a copy of any process
against the Corporation which may be served upon him is: Peabody Holding
Company, Inc., c/o Secretary, 301 North Memorial Drive, St. Louis, Missouri
63102. C. T. Corporation System,
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1633 Broadway, New York, New York 10019, is designated as the registered
agent of the Corporation upon whom process against the Corporation may be
served.
SIXTH: The number of directors of the Corporation shall be fixed from
time to time by, or in the manner provided in, the By-Laws which shall
include a provision that any shareholder resolution relating to a change in
the number of directors of the Corporation must be adopted by the holders
of two-thirds of the outstanding shares of the Corporation entitled to vote
thereon.
SEVENTH: Any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all
members of the Board of Directors or the committee consent in writing to
the adoption of a resolution authorizing the action. Any one or more
members of the Board of Directors or any committee thereof may participate
in a meeting of such Board of Directors or such committee by means of a
telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
EIGHTH: Any plan of merger, consolidation, liquidation or sale of all
or substantially all of the assets of the Corporation shall require the
approval of the holders of at least two-thirds of all outstanding shares of
capital stock of the Corporation entitled to vote thereon.
NINTH: Except as otherwise specifically provided therein, the By-Laws
may be amended or repealed by the Board of Directors by such vote as may be
therein specified or by the affirmative vote of the holders of two-thirds
of the outstanding shares of the Corporation entitled to vote thereon.
TENTH: A director of this Corporation shall under no circumstance
have any personal liability to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director except for
those specific breaches and acts or omissions with respect to which the New
York Business Corporation law expressly provides that this provision shall
not eliminate or limit such personal liability of directors. Nothing herein
shall directly or indirectly increased the liability of any such person
based upon acts or omissions occurring before the adoption hereof.
6. This amendment and restatement of the Certificate of Incorporation
has been authorized by vote of the Board of Directors of the Corporation
followed by the unanimous written consent of the holders of all outstanding
shares of the
4
<PAGE>
Corporation in lieu of a special meeting of shareholders in accordance with
Section 615 of the Business Corporation Law.
IN WITNESS WHEREOF, the undersigned have subscribed this Restated
Certificate of Incorporation this ___ day of October, 1990 and do hereby affirm,
under penalties of perjury, that the statements contained therein have been
examined by them and are true and correct.
/s/ J. H. Wimberly
--------------------
J.H. Wimberly
President
/s/ J. L. Klinger
--------------------
J. L. Klinger
Secretary
5
<PAGE>
EXHIBIT 3.80
RESTATED BY-LAWS
OF
PEABODY HOLDING COMPANY, INC.
ARTICLE I
---------
SHAREHOLDERS MEETINGS
---------------------
Section 1. Annual Meeting. The annual meeting of the
--------------
shareholders of Peabody Holding Company, Inc. (hereinafter the "Corporation")
shall be held in April at the principal office of the Corporation, or at such
other place within or without the State of New York, and at such time, as shall
be determined by the Board of Directors of the Corporation, for the purpose of
electing Directors, and for the transaction of such other business as may be
brought before the meeting.
Section 2. Special Meetings. Special meetings of shareholders may be
----------------
called at any time by a majority of the Board of Directors, its Chairman, Vice
Chairman, Executive Committee, or the President of the Corporation. It shall
also be the duty of the Secretary, whenever so requested in writing by
shareholders owning a majority of the shares of capital stock entitled to vote
at a meeting, to call a special meeting, which shall, consistent with the laws
of the State of New York and these By-Laws, be held at such time and place and
for such purpose or purposes as may be specified in the request therefor. At
any such special meeting only such business may be transacted which is related
to the purpose or purposes set forth in the notice thereof.
Section 3. Notice of Meetings. Written notice of meetings of
------------------
shareholders shall be given whenever shareholders are
<PAGE>
to take any action at a meeting. Such notice shall state the place, date and
hour of the meeting as specified in the call for the meeting or the request for
such call and, unless it is the annual meeting, indicate that it is being issued
by or at the direction of the person or persons calling the meeting. Notice of
a special meeting shall, in addition, state the purpose or purposes for which
the meeting is called. A copy of the notice of any meeting shall be given,
personally or by mail, not less than ten nor more than fifty days before the
date of the meeting, to each shareholder entitled to vote at such meeting. If
mailed, such notice is given when deposited in the United States mail, with
postage thereon prepaid, directed to the shareholder at his address as it
appears on the record of shareholders, or, if he shall have filed with the
Secretary of the Corporation a written request that such notices to him be
mailed to some other address, than directed to him at such other address.
Section 4. Quorum. Except as may be otherwise required by the laws
------
of the State of New York, the Restated Certificate of Incorporation or these By-
Laws, the holders of a majority of the shares entitled to vote thereat present
in person or by proxy shall constitute a quorum at a meeting of shareholders for
the transaction of any business, provided that when a specified item of business
is required to be voted on by a class or series, voting as a class, the holders
of a majority of the shares of such class or series present in person or by
proxy shall constitute a quorum for the transaction of such specified item of
business.
2
<PAGE>
Section 5. Shareholder Action. At all meetings of shareholders all
------------------
resolutions shall be passed by a majority of the votes cast by shareholders
entitled to vote thereon present in person or by proxy, except as otherwise
provided by law or the Restated Certificate of Incorporation or these By-Laws.
Section 6. Adjourned Meetings. Any meetings of shareholders may be
------------------
adjourned to a designated time and place by a vote of a majority in interest of
the shareholders present in person or by proxy and entitled to vote, even though
less than a quorum is so present. No notice of such an adjourned meeting need
be given, other than by announcement at the meeting, and any business may be
transacted which might have been transacted at the meeting as originally called.
If, after the adjournment, the Board of Directors of the Corporation fixes a new
record date for the adjourned meeting, a notice of the adjourned meeting shall
be given to each shareholder of record entitled to notice in accordance with
Article I, Section 3 of these By-Laws.
Section 7. List of Shareholders Entitled to Vote. At least 10 days
-------------------------------------
before every meeting of shareholders a complete list of the shareholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each shareholder and the number of shares registered in the name of
each shareholder, shall be prepared and shall be open to the examination of any
shareholder for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the
3
<PAGE>
place where the meeting is to be held. Such list shall be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 8. Written Consent of Shareholders. Whenever the vote of
-------------------------------
shareholders at a meeting thereof is required or permitted to be taken in
connection with any corporate action by any provisions of the statutes or of the
certificate of incorporation, the meeting and vote of shareholders may be
dispensed with if all the shareholders who would have been entitled to vote upon
the action if such meeting were held shall consent in writing to such corporate
action being taken.
ARTICLE II
----------
DIRECTORS
---------
Section 1. The Number of Directors. The number of Directors of the
-----------------------
Corporation may be determined from time to time by resolution adopted by the
holders of two-thirds of the outstanding shares of the Corporation entitled to
vote thereon, provided that the number of Directors constituting the entire
board shall not be less than three, except that where all the shares of the
Corporation are owned beneficially and of record by less than three
shareholders, the number of Directors may be less than three but not less than
the number of shareholders.
Section 2. Term of Directors, Qualifications. Directors shall be
---------------------------------
elected at the annual meeting of shareholders in each year and shall hold office
for the term of one year and
4
<PAGE>
until their successors are elected and qualify. Directors shall be at least 18
years of age but need not be shareholders.
Section 3. Powers. The business of the Corporation shall be managed
------
by its Board of Directors. The Board may adopt such rules and regulations for
the conduct of its meetings, the exercise of its powers and the management of
the affairs of the Corporation as it may deem proper, not inconsistent with the
laws of the State of New York, the Restated Certificate of Incorporation or
these By-Laws.
In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the Directors may exercise all such powers of the
Corporation and do such lawful acts and things as are not by statute or by the
Restated Certificate of Incorporation or by these By-Laws directed or required
to be exercised or done by the shareholders.
Section 4. Meetings, Quorum. The Board of Directors of the
----------------
Corporation may hold an annual meeting immediately after the annual meeting of
shareholders. Other regular meetings of the Board of Directors of the
Corporation shall be held on such dates, at such times and in such places as
shall be fixed by resolution adopted by the Board of Directors of the
Corporation. Notice of any regular meeting shall not be required. Special
meetings of the Board of Directors of the Corporation shall be held whenever
called by the President or any two of the Directors. At least five days' notice
of any such special meeting shall be given to each Director.
At all meetings of Directors, unless otherwise required by the laws of the
State of New York, the Restated Certificate of
5
<PAGE>
Incorporation of the Corporation or these By-Laws, a majority of the Directors
shall be necessary to constitute a quorum for the transaction of business. The
affirmative vote of a majority of a quorum of Directors present and acting
throughout any meeting of the Board shall constitute the act of the Board.
Section 5. Written Consent of Directors. Any action required or
----------------------------
permitted to be taken at any meeting of the Board of Directors of the
Corporation or of any Committee thereof may be taken without a meeting if prior
to such action a written consent thereto is signed by all members of the Board
or of such Committee, as the case may be, and such written consent is filed with
the minutes of proceedings of the Board or Committee.
Section 6. Vacancies, Removal. Vacancies occurring in the membership
------------------
of the Board of Directors of the Corporation resulting from any increase in the
authorized number of Directors shall be filled by vote of the holders of Common
Stock of the Corporation as provided in the Restated Certificate of
Incorporation. Vacancies occurring in the membership of the Board of Directors
of the Corporation arising from any other cause, including vacancies by reason
of death, resignation or removal, shall be filled by vote of the remaining
members of the Board of Directors of the Corporation, who in so voting shall
vote only for a nominee proposed (if such a nominee shall be proposed) by a
shareholder of the Corporation that, at the preceding annual meeting, proposed
as a nominee for Director for the Director who has died, resigned or been
removed (or for the predecessor in office of such Director).
6
<PAGE>
Any one or more Directors may be removed either for or without cause
at any time by vote of the shareholders holding a majority of the outstanding
common stock of the Corporation entitled to vote thereon at a meeting duly
called and held for that purpose.
Section 7. Notice of Meetings of Directors. Notice of any regular or
-------------------------------
special meetings of the Board of Directors of the Corporation may be given and
shall be effective if sent by mail or telegraph or given by telephone or in
person to any Director, which notice shall be deemed to have been given, if sent
by mail or telegraph, when deposited in the Post Office or post box in a sealed,
postage-paid wrapper addressed to such Director or deposited with the telegraph
office with instructions to be sent to him, in each case at his address then
appearing on the books of the Corporation.
ARTICLE III
-----------
COMMITTEES
----------
Section 1. Committees of the Board. Except as otherwise provided in
-----------------------
the Restated Certificate of Incorporation or these By-Laws, the Board of
Directors of the Corporation, by resolution adopted by a majority of the entire
Board, may designate from its members an Executive Committee and/or other
committee or committees, each consisting of two or more Directors having such
powers and authority (to the extent permitted by law) as may be provided in the
resolutions establishing the same; provided, however, neither the Executive
Committee nor any other committee shall have the power or authority to approve
any
7
<PAGE>
liquidation, sale of substantially all assets, merger with third parties (other
than subsidiaries), election or removal of officers, declaration of dividends,
incurrence of indebtedness or issuance of any shares of capital stock of the
Corporation. The Board of Directors of the Corporation shall have the power at
any time to fill vacancies in, change the membership of, or dissolve any such
committees. The Board may also designate one or more Directors as alternate
members of any such committee who may replace any absent member or members at
any meeting thereof.
Section 2. Meetings of Committees. Committees established by the
----------------------
Board of Directors of the Corporation may meet either regularly at stated times
or specially on notice given 24 hours in advance by any member thereof by mail,
telegraph, telephone or in person to all the other members thereof; but no
notice of any regular meeting need be given; and no notice of any special
meeting need be given at which all members shall be present or notice of which
shall be waived by all absent members before or after such meeting. Such
committees may make rules for the holding and conduct of their meetings and may
appoint such subcommittees and assistants as they from time to time may deem
necessary. The number of regular members or alternate members or both equal to
a majority of the regular members of a committee shall constitute a quorum and
the action of a majority of those present at a meeting at which a quorum is
present and acting shall be the act of a committee.
ARTICLE IV
----------
OFFICERS
--------
8
<PAGE>
Section 1. Executive Officers. The officers of the Corporation shall
------------------
be a President (or Chief Executive Officer), one or more Vice Presidents, one or
more of whom may be designated Executive Vice President, and one or more of whom
may be designated Senior Vice President, a Treasurer, and a Secretary, all of
whom shall be elected by the Board of Directors of the Corporation, and such
other officers as the Board of Directors of the Corporation, from time to time
may elect. Each such officer shall serve at the discretion of the Board of
Directors until the next annual election of officers at the annual meeting of
the Board of Directors of the Corporation following the annual meeting of
shareholders and until his successor is elected and qualified. One person may
serve as more than one of such officers, except that the same person shall not
serve both as President and Secretary. All vacancies occurring among any of the
officers shall be filled by the Board of Directors of the Corporation. Any
officer may be removed at any time by the affirmative vote of a majority of the
Directors present at a regular or special meeting of Directors.
Section 2. Chairman of the Board; Vice Chairman of the Board. The
-------------------------------------------------
Board of Directors of the Corporation may elect from among its number a Chairman
who shall preside at all meetings of the Board and the shareholders. The Board
may also elect from its number a Vice Chairman. In the absence or inability to
act of the Chairman, the Vice Chairman shall preside at all meetings of the
Board and the shareholders as specified herein.
Section 3. President. The President shall be the Chief Executive
---------
Officer of the Corporation and shall preside at
9
<PAGE>
all meetings of the Board of Directors of the Corporation and of the
shareholders in the absence or inability to act of the Chairman of the Board, or
the Vice Chairman of the Board. He shall exercise the powers and perform the
duties usual to the Chief Executive Officer and, subject to the control and
direction of the Board of Directors of the Corporation, shall have general
charge of, and shall direct and supervise, the business and affairs of the
Corporation. He shall see that all orders and resolutions of the Board of
Directors of the Corporation are carried into effect, and shall do and perform
such other duties as from time to time may be assigned to him by the Board of
Directors of the Corporation or these By-Laws and as are incident to the office
of Chief Executive Officer.
Section 4. Vice Presidents. The Vice Presidents, one or more of whom
---------------
may be designated Executive or Senior Vice President, shall perform such duties
in such capacities or as heads of their respective operating divisions, if any,
as may be assigned to them by the Board of Directors of the Corporation or the
President and shall report to such person or persons with respect to the
performance of such duties as the Board of Directors of the Corporation or the
President may from time to time specify. In the absence or inability to act of
the Chairman of the Board, the Vice Chairman of the Board, and the President,
the duties of the offices of Chairman of the Board, the Vice Chairman of the
Board, and President shall be performed by the Vice Presidents in the order of
priority established by the Board unless and until the Board of Directors of the
Corporation shall otherwise direct.
10
<PAGE>
Section 5. Secretary. The Secretary shall (a) keep the minutes of
---------
the meetings of the Board of Directors of the Corporation, the shareholders and
the executive committee and any other committee created by the Board of
Directors of the Corporation; (b) see that all notices of meetings of the
Directors, shareholders and members of such committees are duly given in
accordance with the provisions of these By-Laws or as required by law; and (c)
have custody of the seal of the Corporation and affix and attest the same to all
instruments requiring the seal when authorized by the Board of Directors of the
Corporation or the President. He shall also have charge of the certificate
books, stock books and such books and papers as the Board of Directors of the
Corporation may specify and shall perform all other duties incident to the
office of Secretary or which may be assigned to him from time to time by the
Board of Directors of the Corporation or the President.
Section 6. Treasurer. The Treasurer shall have the custody of the
---------
funds and securities of the Corporation and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all monies and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors of the Corporation. He shall sign checks, drafts, notes and orders
for the payment of money, pay out and disburse funds of the Corporation and, in
general, perform the duties customary to the office of Treasurer. He may have
such additional duties as may be designated from time to time by the President
or the Board of Directors of the Corporation.
11
<PAGE>
Section 7. Assistant Officers. The Assistant Secretary, or if there
------------------
be more than one, the Assistant Secretaries in the order determined by the Board
of Directors of the Corporation (or if there be no such determination, then in
the order of their election) shall, in the absence of the Secretary or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the Secretary. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board of
Directors of the Corporation (or if there be no such determination, then in the
order of their election), shall, in the absence of the Treasurer or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the Treasurer. Assistant Secretaries and Assistant Treasurers shall perform
such other duties as may be assigned by the Secretary and Treasurer
respectively, or by the Board of Directors of the Corporation or the President.
Section 8. Other Officers. Each other officer of the Corporation
--------------
shall exercise the powers and shall perform the duties incident to his office,
subject to the direction of the Board of Directors of the Corporation.
Section 9. Compensation. The salaries of all officers shall be fixed
------------
by the Board of Directors of the Corporation and the fact that any officer is a
Director shall not preclude him from receiving a salary as an officer, or voting
upon the resolution providing the same.
ARTICLE V
---------
12
<PAGE>
CAPITAL SHARES
--------------
Section 1. Form of Certificates and Execution. Certificates for each
----------------------------------
class and series of shares shall be in such form as shall be adopted by the
Board of Directors of the Corporation, shall be duly numbered and registered in
the order issued and shall be signed by the President or a Vice President and
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer of the Corporation, and may be sealed with the seal of the Corporation
or a facsimile thereof. The signatures of the officers upon a certificate may
be facsimiles if the certificate is countersigned by a transfer agent or
registered by a registrar other than the Corporation itself or its employee. In
case any officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the Corporation with the same effect as if he
were such officer at the date of issue.
Section 2. Transfer. Transfers of shares shall only be made upon the
--------
books of the Corporation by the registered holder in person or by attorney, duly
authorized, and upon surrender of the certificate or certificates for such
shares, properly signed for transfer.
Section 3. Lost or Destroyed Certificates. The holder of any
------------------------------
certificate representing shares of the Corporation may notify the Corporation of
any loss, theft or destruction thereof, and the Board of Directors of the
Corporation may thereupon, in its discretion, cause a new certificate for the
same number of shares, to be issued to such holder upon satisfactory proof of
13
<PAGE>
such loss, theft or destruction, and the deposit of indemnity by way of bond or
otherwise, in such form and amount and with such surety or sureties as the Board
of Directors of the Corporation may require, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss or
destruction of any such certificate or the issuance of any such new certificate.
ARTICLE VI
----------
MISCELLANEOUS
-------------
Section 1. Dividends. The Directors may declare dividends from time
---------
to time upon the capital shares of the Corporation from the surplus or net
profits available therefor.
Section 2. Seal. The Seal of the Corporation shall be circular in
----
form and contain the name of the Corporation and the date of its incorporation
and the state in which it was incorporated.
Section 3. Checks, Notes, Etc. Checks, notes, drafts, bills of
-------------------
exchange and orders for the payment of money shall be signed or endorsed in such
manner as shall be determined by the Directors. The funds of the Corporation
shall be deposited in such banks or trust companies, and checks drawn against
such funds shall be signed in such manner as may be determined from time to time
by the Directors.
Section 4. Waivers of Notice. Whenever the Corporation or the Board
-----------------
of Directors of the Corporation or any committee of the Board is authorized to
take any action after notice to any person or persons or after the lapse of a
prescribed period of time, such action may be taken without
14
<PAGE>
notice and without the lapse of such period of time if at any time before or
after such action is completed the person or persons entitled to such notice or
entitled to participate in the action to be taken or, in the case of a
shareholder, his attorney-in-fact or proxy submits a signed waiver of notice of
such requirement.
Section 5. Indemnification of Directors, Officers and Others. (a)
-------------------------------------------------
The Corporation shall, to the fullest extent permitted by applicable law,
indemnify any person (and the heirs, executors and administrators thereof) who
is or was made, or threatened to be made, a party to an action or proceeding,
whether civil or criminal, whether involving any actual or alleged breach of
duty, neglect or error, any accountability, or any actual or alleged
misstatement, misleading statement or other act or omission and whether brought
or threatened in any court or administrative or legislative body or agency,
including an action by or in the right of the Corporation to procure a judgment
in its favor and an action by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, which any director or officer of the
Corporation is serving or served in any capacity at the request of the
Corporation, by reason of the fact that he, his testator or intestate, is or was
a director or officer of the Corporation, or is serving or served such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in
settlement, and costs, charges and expenses, including attorneys' fees, or
15
<PAGE>
any appeal therein; provided, however, that no indemnification shall be provided
to any such person if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his acts were committed in bad faith or
were the result of active and deliberate dishonesty and, in either case, were
material to the cause of action so adjudicated, or (ii) he personally gained in
fact a financial profit or other advantage to which he was not legally entitled.
(b) The Corporation may indemnify any other person to whom the
Corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
(c) The Corporation shall, from time to time reimburse or advance to
any person referred to in Paragraph (a) of this Section 5 the funds necessary
for payment of expenses, including attorneys' fees, incurred in connection with
any action or proceeding referred to in Paragraph (a) of this Section 5, upon
receipt of a written undertaking by or on behalf of such person to repay such
amount(s) if a judgment or other final adjudication adverse to the director or
officer establishes that (i) his acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were material to
the cause of action so adjudicated, or (ii) he personally gained in
16
<PAGE>
fact a financial profit or other advantage to which he was not legally entitled.
(d) Any director or officer of the Corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Corporation, or (ii) any employee benefit plan
of the Corporation or any corporation referred to in clause (i), in any capacity
shall be deemed to be doing so at the request of the Corporation.
(e) Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Section 5 may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
(f) The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Section 5(i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Corporation and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
17
<PAGE>
(g) If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Corporation
within thirty days after a written claim has been received by the Corporation,
the claimant may any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
Section 6. Record Date. The Board of Directors of the Corporation
-----------
may from time to time fix, in advance, record dates for the determination of
shareholders entitled to receive any notice, to vote, to receive payment of a
dividend, to give or withhold consent, to receive an allotment of any rights, or
to exercise any other right or privilege or to take any other action. In the
case of a meeting of shareholders, such date shall be at least ten days but not
more than fifty days before the date of such meeting. In any other case, such
date shall be
18
<PAGE>
not more than fifty days prior to the date of the related corporation action.
ARTICLE VII
-----------
AMENDMENTS
----------
Section 1. Except as otherwise specifically provided herein or in the
Restated Certificate of Incorporation of the Corporation, the By-Laws of the
Corporation may be adopted, amended or repealed by the affirmative vote of the
holders of a majority of the shares at the time entitled to vote in the election
of any Directors; provided, however, any amendment to (i) the first sentence of
Section 1 of Article II, (ii), the first sentence of Section 6 of Article II,
and (iii) the proviso contained in the first sentence of Section 1 of Article
III shall require the affirmative vote of two-thirds of the holders of the
outstanding shares of the Corporation entitled to vote thereon. Except as
otherwise specifically provided herein, the By-Laws of the Corporation may also
be adopted, amended or repealed by the Board of Directors of the Corporation by
vote of a majority of the Directors present at the time of the vote if a quorum
is then present. If any By-Law regulating an impending election of Directors is
adopted, amended or repealed by the Board of Directors of the Corporation, there
shall be set forth in the notice of the next meeting of shareholders for the
election of Directors the By-Law so adopted, amended or repealed, together with
a concise statement of the changes made.
19
<PAGE>
EXHIBIT 3.82
SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT, dated as of September 28,
1991, by and among CAVENHAM FOREST INDUSTRIES INC., a Delaware corporation
("CFI"), CAVENHAM ENERGY RESOURCES INC., a Delaware corporation ("CER"), and
GOLD FIELDS MINING CORPORATION, a Delaware corporation ("GFMC") (each
individually, a "Partner" and, collectively, the "Partners").
R E C I T A L S :
2. CFI and GFMC formed a general partnership (the "Partnership") upon the
terms and conditions set forth in that certain Partnership Agreement, dated as
of March 3, 3991, by and between CFI and GFMC (the "Original Partnership
Agreement"), for the purposes of developing, exploiting and enhancing the
natural resources businesses owned by Hanson PLC and other businesses related to
natural resources as the Partnership may from time to time undertake, and, in
particular, the operation of the businesses involving timber and wood products
and gold and other mining (the "Businesses"), and to enhance the return and
financial strength of the Businesses.
3. As of March 31, 1991, CFI and GFMC amended and restated the Original
Partnership Agreement (the "Amended and Restated Partnership Agreement"), to,
among other things, add, as partners, CER, Gold Fields Operating Co.-Chimney
Creek, a Delaware corporation, Gold Fields Operating Co.-Mule Canyon, a Delaware
corporation, Gold Fields Operating Co.-Elkhorn, a Delaware corporation (each
individually, an "Additional Partner" and, collectively, the "Additional
Partners"), amend Articles 4, 7 and 9 thereof and make certain other changes to
the Original Partnership Agreement as therein provided.
4. The Partners pursuant to a contribution agreement among the Partners,
dated as of March 31, 1991 (the "Contribution Agreement"), and subject to
obtaining any necessary consents or approvals, transferred certain assets, to
the Partnership, which from such time has owned and operated, and is intended to
continue to own and operate, the Businesses associated with such assets.
5. Subsequent to March 31, 1991, all of the Additional Partners except
CER merged into GFMC (the "Merged Partners").
6. The Partners desire to amend the Amended and Restated Partnership
Agreement to provide for the deletion of references to the Merged Partners as
partners of the Partnership, and to make certain other modifications.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Partners hereby covenant and agree as follows, and the
Amended and Restated Partnership Agreement is hereby further amended and
restated to read as follows:
<PAGE>
ARTICLE 1
ORGANIZATIONAL MATTERS
1.1. The Partnership. Pursuant to the terms of the Original
---------------
Partnership Agreement, CFI and GFMC associated themselves as a general
partnership (the "Partnership") under the laws of the State of Delaware, which
is hereby continued for the purposes and under the terms hereinafter set forth.
1.2. Name. The name of the Partnership shall be:
----
"Hanson Natural Resources Company"
The Businesses shall initially be operated as three divisions of the Partnership
(the "Divisions"), under the names "Cavenham Forest Industries Division",
"Cavenham Energy Resources Division" and "Gold Fields Mining Company", and three
subdivisions of Gold Fields Mining Company, under the names "Gold Fields
Operating Co.-Chimney Creek", "Gold Fields Operating Co.-Mesquite" and "Gold
Fields Operating Co.-Mule Canyon", and thereafter shall be called by such other
names as the Partners shall from time to time determine. The Partners shall
execute, publish and/or file all assumed or fictitious name, or other similar,
certificates required by law to be published and filed, or either, in connection
with the formation and operation of the Partnership in each state and locality
where it is necessary or desirable to publish or file any of the same in order
to form and maintain the Partnership and/or to operate the Businesses.
1.3. Principal Place of Business. The principal place of business of
---------------------------
the Partnership shall be at Meadowood II Shopping Center, 2644 Capitol Trail,
Suite B-1, Newark, Delaware 19711, or such other place as the Partnership, from
time to time, shall determine.
1.4. Partnership Act Ownership. Except as is expressly herein
-------------------------
stipulated to the contrary, the rights and obligations of the Partners and the
administration and termination of the Partnership shall be governed by the
Uniform Partnership Act of the State of Delaware. The interest of each Partner
in the Partnership shall be personal property for all purposes. All real and
other property owned by the Partnership shall be deemed owned by the Partnership
as a partnership, and no Partner, individually, shall have any individual
ownership rights in and to such property.
1.5. Individual Authority. Each Partner, acting alone, shall have
--------------------
authority to act for, or undertake or assume any obligation or responsibility on
behalf of, the Partnership.
1.6. No Partner Responsible for Other's Commitments. No Partner
----------------------------------------------
shall be responsible or liable for any indebtedness or obligation of the other
Partner incurred either before or after the execution of this Agreement, nor
shall the Partnership be responsible or liable for any such indebtedness or
obligation of a Partner, except for those responsibilities, liabilities,
indebtedness or obligations assumed or incurred by the Partnership pursuant to
the terms of this Agreement or the
2
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Contribution Agreement (if and when such Contribution Agreement shall be
effective). Each Partner indemnifies and agrees to hold the other Partner and
the Partnership harmless from and against such obligations and indebtedness
except as aforesaid.
ARTICLE 2
PURPOSES AND POWERS
2.1. Purposes. The purpose of the Partnership is to own and operate
--------
the Businesses, to develop, exploit and enhance the resources of the
Partnership, to create an entity which will increase the financial leverage and
strength of the Businesses, and to carry out any other activities necessary or
incidental to the conduct, promotion or attainment of any of the purposes herein
specified as the Partners may from time to time direct.
2.2. Powers. The Partnership shall have such powers as are necessary
------
or appropriate to carry out the purposes of the Partnership, including, without
limitation, the following powers:
(a) to purchase, borrow, acquire, hold, exchange, sell,
distribute, assign, transfer, lend, mortgage, pledge, hypothecate, convert,
redeem, escrow or reissue instruments evidencing its indebtedness;
(b) to issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and any other kinds of negotiable and non-negotiable
instruments and evidences of indebtedness, whether or not in connection with
borrowing money, and to guarantee the obligations of any subsidiary or any other
Affiliate (as defined hereinbelow) of the Partnership and to secure the payment
thereof (and of the interest thereon) by the creation of any interest in the
property or rights of the Partnership, or in any property owned by others when
the Partnership has the right so to do, whether owned by or subject to such
right of the Partnership at the time such indebtedness is incurred or
thereafter;
(c) to make such investments as the Partnership deems advisable
and approves;
(d) to form, own, manage and dissolve one or more subsidiaries;
(e) to have and maintain one or more offices within or without
the State of Delaware, and in connection therewith to rent, lease or purchase
office or manufacturing space, facilities and equipment, to engage and pay
personnel and do such other acts and things and incur such other expenses on its
behalf as may be necessary or advisable in connection with the maintenance of
such offices or manufacturing space or the conduct of the Businesses of the
Partnership;
(f) to open, maintain and close bank accounts, and to draw
checks and other orders for the payment of money;
3
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(g) to employ and dismiss from employment any and all employees,
agents or independent contractors;
(h) to sue and to defend suits, to prosecute, settle or
compromise claims against others, to compromise, settle or accept judgments or
claims against the Partnership and to execute all documents and make any
representations, admissions and waivers in connection therewith;
(i) to enter into, make and perform all such contracts,
agreements and other undertakings, including indemnity agreements, as may be
necessary or advisable or incident to the carrying out of the foregoing
purposes; and
(j) to execute federal mineral leases and to apply for and hold
federal leases, licenses and prospecting permits of all kinds, including, but
not limited to, leases or prospecting permits issued under the Mineral Lands
Leasing Act, the Mineral Leasing Act for Acquired Lands and Reorganization Plan
3;
(k) to take such other actions as the Partnership may deem
necessary or advisable in connection with the foregoing, including the retention
of agents, independent contractors, attorneys, accountants and other experts
selected by the Partnership, and in connection with the preparation and filing
of all Partnership tax returns.
The Partnership shall have all lawful powers necessary, suitable or
convenient for the furtherance of the aforesaid purposes, and, without limiting
the foregoing, the Partnership may carry out its objectives and accomplish its
purposes as principal or agent, directly or indirectly through one or more of
its subsidiaries or Affiliates, alone or with associates, or as a member or as a
participant in any firm, association, trust, partnership or other entity.
Although the Partnership may engage in any or all of the above activities, the
Partnership need not engage in any one or more of them.
As used herein, (i) "Affiliate" of a specified Person shall mean a
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the Person specified, and
(ii) "Person" shall mean any individual, corporation, partnership, firm,
association or other entity.
ARTICLE 3
TERM
3.1. Term. The Partnership shall continue indefinitely, unless
----
terminated as herein provided.
ARTICLE 4
CAPITAL CONTRIBUTIONS, INTERESTS
AND DISTRIBUTIONS
4
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4.1. Contribution by Partners. As of or prior to the date hereof,
------------------------
each Partner has contributed to the Partnership, as its initial capital
contribution, $100.00 (the "Initial Contribution"). On or about March 31, 1991
(or, to the extent required by the following sentence of Section 4.1, from time
to time thereafter), subject to obtaining any necessary consents or approvals,
each Partner shall contribute, or cause its subsidiaries to contribute, to the
Partnership, as its additional capital contribution, those assets which are
required to be contributed to the Partnership in accordance with the terms of
the Contribution Agreement, subject to the liabilities set forth in the
Contribution Agreement, which liabilities shall be expressly assumed by the
Partnership (the "Additional Capital Contributions"). To the extent that any
subsidiary of a Partner shall provide any Additional Capital Contributions and
shall not immediately thereafter be merged into such Partner, this Agreement
shall be amended to admit such subsidiaries as Partners. To the extent that any
assets which are required to be contributed to the Partnership in accordance
with the terms of the Contribution Agreement have not been contributed to the
Partnership as of the date of the Contribution Agreement, as a result of the
absence of contractual, regulatory, governmental or other consents or approvals
necessary to be obtained prior to such contribution, such assets shall be
contributed to the Partnership as soon as practicable after any such consent or
approval has been obtained. Each Partner shall use its best efforts to obtain
all consents and approvals necessary to contribute, in a timely fashion, to the
Partnership the assets which are required to be contributed to the Partnership
in accordance with the terms of the Contribution Agreement.
4.2. Capital Accounts.
----------------
4.2.1. Initial Balance. Each Partner will have a capital
---------------
account (a "Capital Account") which shall initially be equal to (a) the initial
Carrying Value (as hereinafter defined) of the assets contributed to the
Partnership by such Partner pursuant to the Contribution Agreement, plus (b) the
amount of any cash so contributed by such Partner, less (c) the amount of any
liability of such Partner assumed by the Partnership pursuant to the
Contribution Agreement.
4.2.2. Subsequent Adjustments. Each Partner's Capital Account
-----------------------
generally shall be maintained and adjusted in accordance with sections 1.704-
1(b) and 1.704-1T(b) of the Treasury Regulations. There shall be credited to
each Partner's Capital Account (a) the amount of any cash, and the initial
Carrying Value of any assets other than cash, subsequently contributed by such
Partner to the capital of the Partnership, (b) such Partner's share of Net
Profit (as determined in accordance with Section 7.1.2), and (c) any items of
Gross Income or gain allocated to such Partner pursuant to Section 7.4, and
there shall be charged against each Partner's Capital Account (w) the amount of
all cash distributions to such Partner, (x) the fair market value of any
property distributed to such Partner by the Partnership (net of any liability
secured by such property that the Partner is considered to assume or take
subject to under section 752 of the Internal Revenue Code of 1986, as amended
(the
5
<PAGE>
"Code")), (y) such Partner's share of Net Loss (as determined in accordance with
Section 7.1.3), and (z) any items of deduction, loss or Section 705(a)(2)(B)
Expenditure (as hereinafter defined) allocated to such Partner pursuant to
Section 7.4.
4.2.3. In-Kind Distributions. If the Partnership at any time
---------------------
distributes any of its assets to any Partner in kind, the Capital Accounts of
the Partners shall be adjusted to account for the Partners' allocable shares (as
determined, in each case, in accordance with Article 7) of the Gross Income, Net
Profit or Net Loss that would have been realized by the Partnership had the
distributed assets been sold for their respective fair market values (taking
into account section 7701(g) of the Code) immediately prior to such
distribution.
4.2.4. Section 754 Elections. In the event that the Partnership
---------------------
makes an election under section 754 of the Code, the amount of any adjustments
to the bases (or Carrying Values) of the assets of the Partnership made pursuant
to section 743 of the Code shall not be reflected in the Capital Accounts of the
Partners, but the amounts of any adjustments to the bases (or Carrying Values)
of the assets of the Partnership made pursuant to section 734 of the Code as a
result of the distribution of property by the Partnership to a Partner (to the
extent that such adjustments have not previously been reflected in the Partners'
Capital Accounts) shall (a) be reflected in the Capital Account of the Partner
receiving such distribution in the case of a distribution in liquidation of such
Partner's interest in the Partnership and (b) otherwise be reflected in the
Capital Accounts of the Partners in the manner in which the unrealized income
and gain that is displaced by such adjustments would have been shared had the
property been sold at its Carrying Value immediately prior to such adjustments.
4.2.5. Transferee's Capital Accounts. In the event any
-----------------------------
interest in the Partnership is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the transferor
to the extent related to the transferred interest.
4.2.6. Determinations. Except as otherwise provided in this
--------------
Agreement, whenever it is necessary to determine the Capital Account of any
Partner, the Capital Account of such Partner shall be determined after giving
effect to all allocations pursuant to Article 7 with respect to transactions
effected, and all distributions made, prior to the date and time as of which
such determination is to be made.
4.2.7. Negative Balances. No Partner with a negative balance
-----------------
in its Capital Account shall have any obligation to the Partnership or any other
Partner to restore such negative balance.
4.2.8. Oil and Gas Properties. Any other provision of this
----------------------
Agreement to the contrary notwithstanding (a) each Partner's Capital Account
shall be adjusted in accordance with Treasury Regulation sections 1.704-1(b) (2)
(iv) (k) (3) and
6
<PAGE>
(4), dealing with depletion of oil and gas properties; and (b) allocations of
the total amount realized by the Partnership on its taxable disposition of an
oil or Was property shall' except to the extent governed by section 704(c) of
the Code or related principles under Treasury Regulation section 1.704-1(b) (4)
(i), be made in accordance with the sixth and seventh sentences of Treasury
Regulation section 1-704-1(b) (4) (v) in a manner consistent with Sections 7.1
and 7.2 hereof.
4.3. Additional Contributions. Except as expressly required by
------------------------
Section 4.1 hereof or as expressly agreed upon by the Partners, no Partner shall
have any right or obligation to make any contribution to the Partnership or to
advance any funds thereto.
4.4. Distributions. The Partnership shall distribute such cash or
-------------
other property of the Partnership as may be approved by the Board (as defined in
Section 5.1 hereof) from time to time to the Partners, which distributions may
or may not, in the Board's discretion, be distributed according to the
Percentage Interests of the Partners, as calculated in accordance with Section
4.5 below.
4.5. Percentage Interests. The Percentage Interest of each Partner
--------------------
shall initially be equal to the percentage derived by dividing the amount of
such Partner's Capital Account, calculated immediately after the contribution
described in the second sentence of Section 4.1 hereof by the aggregate amount
of the Capital Accounts of all Partners so calculated, and shall be adjusted to
reflect any Additional Capital Contributions pursuant to Sections 4.1 and 4.3
hereof.
4.6. No Interest Payable. No Partner shall receive any interest on
-------------------
its contributions to the capital of the Partnership.
4.7. No Withdrawals. The capital of the Partnership shall not be
--------------
withdrawn except as herein expressly stipulated
ARTICLE 5
MANAGEMENT OF THE PARTNERSHIP
5.1. Partnership Board. (a) The business and affairs of the
-----------------
Partnership shall be managed under the direction of a board (the "Board")
selected by the Partners, and the Board shall have all power and authority to
manage, and direct the management and the business and affairs of, the
Partnership. Any power not delegated pursuant to a policy of delegation adopted
by the Board shall remain with the Board. Approval by or action taken by the
Board in accordance with this Agreement shall constitute approval or action by
the Partnership and shall be binding on the Partners. The initial members of
the Board shall be as set forth in Exhibit A hereto, and their successors shall
be chosen by the affirmative vote of a majority of the Board then in office or
of the Partners.
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<PAGE>
(b) In addition to the foregoing, each of the Divisions may select
their own boards, which shall direct the management, business and affairs of
such Divisions.
5.2. Operation of Board Proxies; Written Action. Meetings of the
------------------------------------------
Board shall be held at such times and places as may be fixed by the Board.
Notice of meeting may be waived before or after a meeting by a written waiver of
notice signed by the member entitled to notice. A member's attendance at a
meeting shall constitute a waiver of notice unless the member states at the
beginning of the meeting his objection to the transaction of business because
the meeting was not lawfully called or convened. The vote of a majority of the
members of the Board present at a duly constituted meeting shall govern all of
the Board's actions and constitute approval by the Board. Each member of the
Board may vote by delivering his proxy to another member of the Board. The
Board may act without a meeting if the action taken is approved in advance in
writing by the unanimous consent of all members of the Board.
5.3. Officers. The Board (and the boards of each Division may
--------
appoint such officers, including, but not limited to, president, treasurer,
secretary, controller and one or more vice presidents (each, an "Officer") with
such titles and duties as may be approved by the Board (or the board of a
Division) .
5.4. Bank Accounts. The Partnership shall maintain bank accounts in
-------------
such banks as the Board (or an Officer or Officers designated by the Board) may
designate exclusively for the deposit and disbursement of all funds of the
Partnership. All funds of the Partnership shall be promptly deposited in such
accounts. The Board (or an Officer or Officers designated by the Board) from
time to time shall authorize signatories for such accounts.
5.5. Fidelity Bonds and Insurance. The Partnership shall obtain
----------------------------
fidelity bonds with reputable surety companies, covering all persons having
access to the Partnership's funds, and indemnifying the Partnership against loss
resulting from fraud, theft, dishonesty and other wrongful acts of such persons.
The Partnership shall carry or cause to be carried on its behalf with companies
acceptable to the Board all property, liability (including, without limitation,
product, general and employee medical liability) and workmen's compensation
insurance as shall be required under applicable mortgages, leases, agreements
and other instruments and statutes or as may be required by the Board, but never
in amounts less than those agreed upon by the Board.
ARTICLE 6
BOOKS AND RECORDS, AUDITS, ETC.
6.1. Books; Statements. The Partnership shall keep accurate, full
-----------------
and complete books and accounts showing its assets and liabilities, operations,
transactions and financial condition. The Board shall determine the methods to
be used in the preparation of financial statements and federal, state and
8
<PAGE>
municipal income and other tax or information returns for the Partnership, in
connection with all items of income and expense, including, but not limited to,
valuation of assets, the method of depreciation, elections, credits and
accounting procedures.
6.2. Other Information. The Partnership shall make available to each
-----------------
Partner such information and financial statements in addition to the foregoing
as shall be required by either of them in connection with the preparation of tax
returns, financial statements and other documents required to be filed under
foreign or federal laws and shall cooperate in the preparation of any such
documents.
6.3. Fiscal and Tax Year. The fiscal year and taxable year of the
-------------------
Partnership shall be April 1 through March 31, unless the Partners shall
hereafter in writing agree otherwise; the Partnership may, however, prepare
annual financial information as of any date convenient for the Partners and
their affiliates.
ARTICLE 7
ALLOCATIONS OF GROSS INCOME, NET PROFIT
---------------------------------------
AND NET LOSS
------------
7.1. Basic Allocation Provisions.
7.1.1. Certain Definitions. (a) The term "Gross Income" means
the gross income, the term "Net Profit" means the taxable income, and the term
"Net Loss" means the taxable loss, in each case, as determined for federal
income tax purposes for the relevant period, with the following adjustments:
(i) items of gain, loss and deduction shall be computed
based upon the Carrying Value (as hereinafter defined) of each of the
Partnership's assets rather than upon the asset's adjusted basis for federal
income tax purposes;
(ii) any tax-exempt income received by the Partnership shall
be deemed for these purposes only to be an item of Gross Income;
(iii) the amount of any adjustment to the Carrying Value
of any asset of the Partnership pursuant to section 743 of the Code shall not be
taken into account;
(iv) any expenditure of the Partnership described in section
705(a)(2)(B) of the Code and any expenditure, considered to be an expenditure
described in section 705(a)(2)(B) of the Code pursuant to the Treasury
Regulations under section 704(b) of the Code (each such expenditure a "Section
705(a)(2)(B) Expenditure") shall be treated as a deductible expense;
(v) any percentage depletion in respect of an item of
depreciable property of the Partnership which exceeds the adjusted tax basis of
such property ("Excess Percentage Depletion") shall be excluded from the
computation of Net Profit and Net Loss; and
9
<PAGE>
(vi) any Gross Income, gain, loss, deduction or Section
7.05(a)(2)(B) Expenditure allocated to the Partners pursuant to Section 7.4
hereof shall be excluded from the computation of Net Profit and Net Loss.
(b) "Carrying Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(i) the initial Carrying Value of any asset contributed to
the Partnership shall be such asset's gross fair market value at the time of
such contribution:
(ii) if the Partnership elects to adjust the Capital Account
balances of the Partners to reflect the fair market value of the Partnership's
assets in accordance with Treasury Regulation section 1.704-l(b)(2)(iv)(f), the
Carrying Values of all Partnership assets shall be adjusted to equal their
respective gross fair market values at the time of such election; and
(iii) if the Carrying Value of an asset has been determined
pursuant to clause (i) or (ii) of this Section 7.1.1(b), such Carrying Value
shall thereafter be adjusted in the same manner as would the asset's adjusted
basis for federal income tax purposes.
(c) "Quarterly Preference Amount" with respect to a Partner for a
calendar quarter means the product of (i) 1.75%, and (ii) the positive amount,
if any, by which (A) the sum of the amount of cash and the initial Carrying
Value of any assets contributed to the Partnership by such Partner pursuant to
Section 4.1 or Section 4.3 hereof on or before the last day of such quarter,
less the liabilities of the Partner assumed by the Partnership in connection
with any such contribution, plus the aggregate Quarterly Preference Amount with
respect to such Partner for all calendar quarters preceding such quarter,
exceeds (B) the aggregate amount of cash distributions, and the aggregate value
of property distributions, received by such Partner from the Partnership
pursuant to Section 4.4, Section 9.3 or Section 9.4 hereof on or before the last
day of such quarter; provided, however, that appropriate adjustment shall be
made to the calculation of a Partner's Quarterly Preference Amount to reflect
contributions of cash or property, and/or distributions of cash or property,
occurring during the calendar quarter for which such Quarterly Preference Amount
is being determined.
(d) "Untaxed Preference Amount" of a Partner means, at any given
date, the excess, if any, of the aggregate of such Partner's Quarterly
Preference Amounts with respect to calendar quarters ending on or before such
date, over the amount by which (i) the aggregate amount of Net Profit previously
allocated to such Partner pursuant to Section 7.1.2(b) hereof, exceeds (ii) the
aggregate amount of Excess Depletion previously allocated to such Partner
(pursuant to Section 7.2.2 hereof) with respect to Gross Income underlying such
Net Profit.
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<PAGE>
7.1.2. Allocation of Net Profit. Net Profit of the Partnership for
------------------------
each fiscal year shall, after giving effect to all Capital Account adjustments
attributable to contributions and distributions made during such year, be
allocated among the Partners as follows:
(a) First, to the Partners, in an amount not exceeding their
aggregate negative Capital Account balances (i) first, so as to cause their
respective negative Capital Account balances to be i the same proportions as are
their respective Percentage Interests, and (ii) thereafter, in accordance with
their respective Percentage Interests;
(b) Second, to the Partners, in proportion to their respective
untaxed Preference Amounts (determined as of the end of such year), until the
Net Profit so allocated, less the amount of Excess Depletion allocable to the
Partners (pursuant to Section 7.2.2 hereof) with respect to the Gross Income
underlying such Net Profit, equals their aggregate Untaxed Preference Amounts
(as so determined); and
(c) Third, to the Partners in accordance with their respective
Percentage Interests.
7.1.3. Allocation of Net Loss. Net Loss of the Partnership for
----------------------
each fiscal year shall, after giving effect to all Capital Account adjustments
attributable to contributions and distributions made during such year, be
allocated among the Partners as follows:
(a) First, to the Partners, in an amount not exceeding the amount
of Net Profit, if any, theretofore allocated pursuant to clause (i) to Section
7.1.2(a), in proportion to the respective amounts, if any, so allocated; and
(b) Second, to the Partners in accordance with their respective
Percentage Interests.
7.2. Tax Allocation Provisions.
-------------------------
7.2.1. In General. For income tax purposes, all items of Gross
----------
Income, gain, loss, deduction and Section 705(a)(2)(B) Expenditure for a fiscal
year (other than items allocated pursuant to Section 7.2.2 or Section 7.2.3.)
hereof shall be allocated to the Partners in the same manner as is the
Partnership's Net Profit or Net Loss for such year; provided, however, that, if
the Carrying Value of any property of the Partnership differs from its adjusted
basis for federal income tax purposes, then items of gain, loss and deduction
the amount of which is affected by such adjusted basis (other than items
allocated pursuant to Section 7.2.2) shall be allocated among the Partners in a
manner that takes account of the variation between the adjusted basis of the
property for tax purposes and its Carrying Value in the manner provided for
under section 704(c)(1)(A) of the Code and the Treasury Regulations thereunder.
7.2.2. Excess Depletion. Excess Depletion, if any, for a fiscal
----------------
year shall, pursuant to Treasury Regulation
11
<PAGE>
section 1.704-1(b)(4)(iii), be allocated in accordance with the allocation of
Gross Income for such year.
7.2.3. Special Allocations. Allocations pursuant to Section 7.4
-------------------
of items of Gross Income, gain, loss, deduction, and Section 705(a)(2)(B)
Expenditure of the Partnership shall, except as otherwise required by Treasury
Regulations under section 704(b) of the Code, consist of a pro rata portion of
each item of Gross Income, gain, loss, deduction, and Section 705(a)(2)(B)
Expenditure of the Partnership, as appropriate, for such fiscal year.
7.2.4. Credits. Any credits of the Partnership shall be
-------
allocated among the Partners in accordance with their respective Percentage
Interests.
7.3. Other Tax Matters.
-----------------
7.3.1. Designation of Tax Matters Partner. (a) GFMC shall be
----------------------------------
the tax matters partner (the "TMP") of the Partnership within the meaning of
section 6231(a)(7) of the Code. The TMP shall not extend the statute of
limitations on behalf of the Partnership, select the Partnership's choice of
litigation forum in a tax controversy or take any other action in its capacity
as TMP without the consent of the other Partners. The TMP shall keep the other
Partners fully advised of the progress of any audit and shall supply the other
Partners with copies of any written communications received from the Internal
Revenue Service or other taxing authority relating to any audit within ten days
after receipt thereof, and shall at least five business days prior to submitting
any materials to the Internal Revenue Service, or other taxing authority,
provide such materials to the other Partners. The TMP shall be reimbursed by the
Partnership for any reasonable expenses incurred in its capacity as TMP.
(b) Nothing in this Section 7.3.1 is intended to authorize the
TMP to take any action that is left to the determination of a Partner under
sections 6222 through 6233 of the Code.
7.3.2. Compliance with Treasury Regulations. The provisions of
------------------------------------
this Article 7 and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulation
sections 1.704-1(b) and 1.704-1T(b), and shall be interpreted and applied in a
manner consistent with such Treasury Regulations.
7.4. Special Allocation Provisions.
-----------------------------
7.4.1. Certain Definitions. (a) "Minimum Gain" for the
-------------------
Partnership means the amount determined by computing with respect to each non-
recourse liability of the Partnership the amount of Net Profit, if any, that
would be realized by the Partnership if it disposed of the property securing
such liability in full satisfaction thereof, and by then aggregating the amounts
so computed.
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<PAGE>
(b) "Share of Minimum Gain" means, for each Partner, the excess,
if any, of (i) the sum of the aggregate Non-Recourse Deductions allocated to
such Partner (and such Partner's predecessors in interest), cumulatively from
the inception of the Partnership, and the aggregate distributions to such
Partner (and such Partner's predecessors in interest), cumulatively from the
inception of the Partnership, of proceeds of a non-recourse liability that are
allocable to an increase in Partnership Minimum Gain, over (ii) the sum of such
Partner's (and such Partner's predecessors') aggregate share (determined as
described below) of any net decreases in Partnership Minimum Gain, cumulatively
from the inception of the Partnership. For purposes of this Section 7.4: (a) a
deduction shall constitute a "Non-Recourse Deduction" if, and to the extent
that, at the time such item was incurred it increased the amount of the
Partnership's Minimum Gain; (b) a Partner's share of the net decrease in
Partnership Minimum Gain during a taxable year shall be an amount that bears the
same relation to the net decrease in Minimum Gain during such year as such
Partner's Share of Minimum Gain at the end of the prior taxable year (or if
later at the time immediately following the last time that the capital accounts
of the Partners are increased pursuant to Treasury Regulation Section 1.704-
l(b)(2)(iv)(f) or (r) to reflect the revaluation of Partnership property subject
to one or more non-recourse liabilities of the Partnership) bears to the amount
of Minimum Gain at the end of such prior taxable year (or such later date); (c)
a Partner's share of any decrease in Partnership Minimum Gain resulting from a
revaluation of Partnership property equals the amount of the increase in such
Partner's Capital Account attributable to such revaluation to the extent of the
reduction in Minimum Gain caused by such revaluation; (d) in determining the net
increase or decrease in Partnership Minimum Gain during any Partnership taxable
year in which the Capital Accounts of the Partners are increased pursuant to a
revaluation of Partnership property subject to one or more non-recourse
liabilities of the Partnership, any decrease in Partnership Minimum Gain
attributable to each such revaluation shall be added back to the net decrease or
increase otherwise determined; and (e) a distribution to a Partner by the
Partnership that is allocable to the proceeds of any non-recourse liability of
the Partnership is allocable to an increase in the Partnership Minimum Gain to
the extent of the amount of the net increase, if any, in Partnership Minimum
Gain for such taxable year that is allocated to such non-recourse liability
under Treasury Regulation Section 1.704-1T(b)(4) (iv)(g)(2).
(c) "Partner Minimum Gain" means Minimum Gain that would result
if all partner non-recourse debt, as defined in Treasury Regulation Section
1.704-1T(b)(4)(iv)(k)(4) ("Partner Non-Recourse Debt"), were treated as non-
recourse liabilities of the Partnership and the Partnership had no other non-
recourse liabilities.
(d) "Share of Partner Minimum Gain" means, for each Partner,
such Partner's Share of Minimum Gain that would result if all Partner Non-
Recourse Debt were treated as non-recourse liabilities of the Partnership and
the Partnership had no other non-recourse liabilities.
13
<PAGE>
7.4.2. Minimum Gain Chargeback. Notwithstanding any other
-----------------------
provisions in this Agreement to the contrary, if in any fiscal year there is a
net decrease in the amount of the Partnership's Minimum Gain or in the amount of
Partner Minimum Gain, each Partner shall be allocated income and gain (including
Gross Income) for such year or other period (and, if necessary, for subsequent
years) in proportion to, and to the extent of, an amount equal to the greater of
(i) the portion of such Partner's share of the net decrease in Minimum Gain or
Partner Minimum Gain during such year or period that is allocable to the
disposition of Partnership property subject to one or more non-recourse
liabilities of the Partnership (including Partner Non-Recourse Debt), or (ii)
the negative balances (computed with the adjustments described below) in such
Partner's Capital Accounts at the end of such year (prior to any allocation
pursuant to Section 7.1, Section 7.4.3, the last sentence of Section 7.4.4 or
the last sentence of Section 7.4.5). In determining a Partner's negative Capital
Account balance for purposes of this Section 7.4.2, a Partner's Capital Account
balance shall be increased by the amount, if any, that such Partner is obligated
to restore to the Partnership upon liquidation and shall be decreased by the
amounts of any net allocations, distributions or other items specified in the
first sentence of Section 7.4.3 that, as of the end of the taxable year, are
reasonably expected to be made to such Partner. For purposes of this Section
7.4.2 and Section 7.4.3, the amount that a Partner may be obligated to
contribute to the Partnership upon liquidation shall be considered to include:
(a) such Partner's allocable share (as determined under section 752 of the Code)
of any recourse indebtedness of the Partnership which could not be repaid out of
the Partnership's assets if all such assets were sold at their respective
Carrying Values; (b) any unconditional obligation of such Partner to contribute
additional amounts to the capital of the Partnership in the future (to the
extent not previously taken into account in determining such Partner's share of
recourse liabilities of the Partnership); (c) such Partner's Share of Minimum
Gain; and (d) such Partner's Share of Partnership Minimum Gain. In the event any
items of income and gain "including Gross Income) of the Partnership are
reallocated to a Partner pursuant to the first sentence of this Section 7.4.2,
subsequent items of loss, deduction, or Section 705(a)(2)(B) Expenditure of the
Partnership shall be allocated (prior to any allocation pursuant to Section 7.1,
but subject to Section 7.4.4) to the Partners in a manner designed to result in
each Partner having a Capital Account balance equal to what it would have been
had the reallocation of items of income and gain (including Gross Income)
pursuant to the first sentence of this Section 7.4.2 not occurred. Allocations
of income and gain (including Gross Income) made pursuant to this Section 7.4.2
shall be made with respect to Partnership Minimum Gain prior to any allocation
made pursuant to this Section 7.4.2 with respect to Partner Minimum Gain.
7.4.3. Qualified Income Offset. Notwithstanding any other
-----------------------
provision in this Agreement (other than Section 7.4.2), if (i) during any fiscal
year a Partner (a) is allocated pursuant to section 706(d) of the Code or
Treasury Regulation section 1.751-1(b)(2)(ii) any items of loss, deduction or
Section 705(a)(2)(B) Expenditure, (b) is distributed any cash or property
14
<PAGE>
from the Partnership to the extent such distributions exceed offsetting
increases to such Partner's Capital Account that are reasonably expected to
occur during such year, or (c) receives any other adjustment, allocation or
distribution described in Treasury Regulation section 1.704-1(b)(2) (ii) (d)
(4), (5) or (6) and, as a result of such adjustment, allocation or distribution,
such Partner has a Qualified Income Offset Amount, then (ii) items of income and
gain (including Gross Income) for such fiscal year (and, if necessary,
subsequent years), shall (prior to any allocation pursuant to Section 7.1, the
last sentence of Section 7.4.4 or the last sentence of Section 7.4.5, but
subsequent to any allocation pursuant to Section 7.4.2) be allocated to such
Partner in an amount equal to his Qualified Income Offset Amount. As used
herein, the term "Qualified Income Offset Amount" for a Partner means the
excess, if any, of (x) the negative balance in a Partner's Capital Account
immediately after the adjustment, allocation or distribution described in clause
(i) of the preceding sentence (but without regard to any allocation pursuant to
clause (ii) of the preceding sentence), over (y) the maximum amount that such
Partner may be obligated to contribute to the Partnership upon liquidation as
determined pursuant to the third sentence of Section 7.4.2. In the event any
items of income and gain (including Gross Income) of the Partnership are
reallocated to a Partner pursuant to the first sentence of this Section 7.4.3,
subsequent items of loss, deduction or Section 705(a)(2)(B) Expenditure of the
Partnership shall be allocated (prior to any allocation pursuant to Section 7.1,
but subject to Sections 7.4.4 and 7.4.5) to the Partners in a manner designed to
result in each Partner having a Capital Account balance equal to what it would
have been had the reallocation of items of income and gain (including Gross
Income) pursuant to the first sentence of this Section 7.4.3 not occurred.
7.4.4. Limitations on Loss Allocation. Notwithstanding the
------------------------------
provisions of Section 7.1.4, in no event shall Net Loss (or items thereof) of
the Partnership be allocated to a Partner if such allocation would result in
such Partner having a Qualified Income Offset Amount. Any allocation to a
Partner which is prevented by the operation of the preceding sentence shall be
reallocated in accordance with Section 7.1.4, subject to the subsequent
provisions of this Section 7.4.4. For purposes of this Section 7.4.4, the
determination of whether an allocation of Net Loss (or items thereof) would
produce a Qualified Income Offset Amount for a Partner shall be made after
reducing the Partner's Capital Account by the amounts of any adjustment,
allocation or distribution described in clause (i) of the first sentence of
Section 7.4.3 that, as of the end of the fiscal year, are reasonably expected to
be made to the Partner. In the event any Net Loss of the Partnership is
reallocated from a Partner pursuant to the first sentence of this Section 7.4.4,
subsequent items of income and gain (including Gross Income) will first be
allocated (subject to Sections 7.4.2 and 7.4.3) to the Partners in a manner
designed to result in each Partner having a Capital Account balance equal to
what it would have been had the reallocation pursuant to the first sentence of
this Section 7.4.4 not occurred.
15
<PAGE>
7.4.5. Allocation of Partner Non-Recourse Deductions. Items of
---------------------------------------------
loss, deduction and Section 705(a)(2)(B) Expenditures attributable, under
Treasury Regulation section 1.704-1T(b)(4)(iv)(h), to Partner Non-Recourse Debt
shall (prior to any allocation pursuant to Section 7.1, but subject to the
provisions of Section 7.4.4) be allocated, as provided in Treasury Regulation
section 1.704-1T(b)(4)(iv)(h), to the Partners in accordance with the ratios in
which they bear the economic risk of loss for such debt. In the event any items
of loss, deduction and Section 705(a)(2)(B) Expenditure of the Partnership are
allocated pursuant to the first sentence of this Section 7.4.5, subsequent items
of income and gain (including Gross Income) shall (prior to any allocation
pursuant to Section 7.1, and subject to Sections 7.4.2 and 7.4.3) be allocated
to the Partners in a manner designed to result in each Partner having a Capital
Account balance equal to what it would have been had the reallocation pursuant
to the first sentence of this Section 7.4.5 not occurred.
ARTICLE 8
ASSIGNMENT AND RIGHTS TO
SALE OF INTEREST
8.1. Consent Required. Except as provided in this Agreement, without
----------------
the prior written consent of the other Partner (which may be withheld for any or
no reason), no Partner, or any assignee or successor in interest of any Partner,
shall (voluntarily or involuntarily) sell, assign, give, pledge, hypothecate,
encumber or otherwise transfer its interest in the Partnership (including a
transfer pursuant to a foreclosure sale of any of the assets of a Partner), or
in any part thereof, except that a Partner may sell, assign or otherwise
transfer its interest in the Partnership to any of its Affiliates without such
prior written consent.
8.2. Other Assignment Void. Any purported assignment or transfer of
---------------------
an interest in the Partnership not permitted by this Article 8 shall be null and
void and have no effect whatsoever.
ARTICLE 9
DISSOLUTION
9.1. Right to Dissolve the Partnership. The Partnership shall
---------------------------------
continue until dissolved and terminated pursuant to the terms of this Agreement.
No Partner shall have the right to terminate this Agreement or dissolve the
Partnership by its express will or by withdrawal without the express written
consent of the other Partners or the Board as herein set forth. The Partnership
shall dissolve at any time upon the agreement of a majority of the Partners or
the approval of a majority of the Board.
9.2. Winding us of the Partnership. Upon dissolution of the
-----------------------------
Partnership, the Partnership's business shall be wound up and all its assets
distributed in liquidation; provided, however,
-------- -------
16
<PAGE>
that the Businesses of the Partnership shall be operated in the normal course of
events during the winding up period (except for sales of assets of the
Businesses, or parts thereof, as approved by the Board). Upon dissolution, the
Partnership shall continue to act through the Board or an Officer designated by
the Board.
9.3. Distributions of Cash; Allocations. Upon the dissolution of the
----------------------------------
Partnership for any reason, during the period of liquidation and until
termination of the Partnership, the Partners shall continue to receive the cash
and/or other property and to share profits and losses for all tax and other
purposes as provided elsewhere in this Agreement.
9.4. Distribution of Proceeds of Liquidation. Regardless of the
---------------------------------------
capital and undistributed earnings accounts of the Partners or their shares of
profits and losses or their respective rights to receive distributions, the
proceeds from liquidation shall be applied and distributed in the following
order of priority:
(a) First, to the payment of (i) debts and liabilities of the
Partnership, except loans or advances that may have been made by any
of the Partners to the Partnership, and (ii) expenses of liquidation;
(b) Second, to the setting up of any reserves which the Board
may deem necessary for any contingent or unforeseen liabilities or
obligations of the Partnership or of the Partners arising out of or in
connection with the Partnership. Such reserves may be paid over by
the Partners to a bank or trust company acceptable to the Board to be
held in escrow for the purpose of disbursing such reserves in payment
of any of the aforementioned liabilities or obligations, and, at the
expiration of such period as the Board shall deem advisable,
distributing the balance, if any, thereafter remaining, in the manner
hereinafter provided:
(c) Third, to the repayment of any other loans that may have
been made by any of the Partners to the Partnership: and
(d) Fourth, any balance remaining shall be distributed to the
Partners in accordance with their respective positive Capital Account
balances.
No Partner shall be obliged to restore any negative balance in its Capital
Account.
If a liquidating distribution is to be made at a time when there is a
material difference between the aggregate Carrying Values and the aggregate fair
market values of the Partnership's properties, each Partner's Capital Account
shall be adjusted immediately before the distribution to reflect a revaluation
of the Partnership's properties to their respective fair market values in
accordance with the provisions of Treasury Regulation section 1.704-
1(b)(2)(iv)(f)(5).
17
<PAGE>
ARTICLE 10
MISCELLANEOUS
10.1. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be considered given when delivered, if
hand delivered, delivered by facsimile transmission, or mailed by prepaid
registered mail, return receipt requested, to the parties at the address given
below (or at such other address as a party may specify by notice pursuant to
this provision):
(a) If to CFI or CER, to:
1500 Southwest First Avenue
Suite 500
Portland, Oregon 97201
Attention: William B. Freck
(b) If to GFMC, to:
1687 Cole Boulevard
P.O. Box 4014
Golden, Colorado 80402-4014
Attention: Stephen E. Flechner
10.2. Additional Documents and Acts. In connection with this
-----------------------------
Agreement, as well as all transactions contemplated by this Agreement, each
Partner agrees to execute and deliver such additional documents and instruments,
and to perform such additional acts, as may be necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions and conditions of
this Agreement, and all such transactions. All approvals of either party
hereunder shall be in writing.
10.3. Interpretation. This Agreement and the rights and obligations
--------------
of the parties shall be construed in accordance with and governed by the laws of
the State of Delaware applicable to agreements made and to be performed wholly
within such jurisdiction.
10.4. Pronouns. All pronouns and any variations thereof shall be
--------
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
10.5. Entire Agreement. This instrument contains all of the
----------------
understandings and agreements of whatsoever kind and nature existing between the
parties hereto with respect to this Agreement and the rights, interests,
understandings, agreements and obligations of the respective parties pertaining
to the Partnership.
10.6. References of this Agreement. Numbered or lettered articles,
----------------------------
sections and subsections herein contained refer to articles, sections and
subsections of this Agreement unless otherwise expressly stated.
18
<PAGE>
10.7. Headings. All headings herein are inserted only for
--------
convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
10.8. Binding Effect. Except as herein otherwise expressly
--------------
stipulated to the contrary, this Agreement shall be binding upon and inure to
the benefit of the parties signatory hereto, and their respective successors and
assigns.
10.9. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original and each of which shall constitute one
and the same Agreement.
10.10. Amendments. This Agreement may not be amended, altered or
----------
modified except by a written instrument signed by each of the Partners.
10.11. Severability. If any term or condition of this Agreement
------------
shall be invalid or unenforceable to any extent or in any application, then the
remainder of this Agreement, and such term or condition except to such extent or
in such application, shall not be affected thereby, and each and every term and
condition of this Agreement shall be valid and enforceable to the fullest extent
and in the broadest application permitted by law.
19
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CAVENHAM FOREST INDUSTRIES INC., a
Delaware corporation
By: /s/ George H. Hempstead, III
-----------------------------
Title: ___________________________
CAVENHAM ENERGY RESOURCES INC., a
Delaware corporation
By: /s/ George H. Hempstead, III
-----------------------------
Title: ___________________________
GOLD FIELDS MINING CORPORATION, a
Delaware corporation
By: /s/ George H. Hempstead, III
-----------------------------
Title: ___________________________
20
<PAGE>
EXHIBIT A
---------
INITIAL MEMBERS OF THE BOARD OF THE PARTNERSHIP
-----------------------------------------------
William C. Bleimeister
Russell A. Carson
George H. Hempstead, III
Robert C. Stift
John H. Wimberly
21
<PAGE>
FIRST AMENDMENT OF
SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS FIRST AMENDMENT OF SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT
(this "Amendment"), dated as of June 25, 1993, by and among CAVENHAM FOREST
INDUSTRIES INC., a Delaware corporation, CAVENHAM ENERGY RESOURCES INC., a
Delaware corporation, and GOLD FIELDS MINING CORPORATION, a Delaware corporation
(each individually, a "Partner" and, collectively, the "Partners").
R E C I T A L S :
The Partners are parties of the Second Amended and Restated
Partnership Agreement, dated as of September 28, 1991 (the "Partnership
Agreement") which establishes a general partnership known as Hanson Natural
Resources Company (the "Partnership").
1. The Partnership, pursuant to the Asset Exchange Agreement dated
January 25, 1993, between Santa Fe Pacific Minerals Corporation and certain of
its affiliates and the Partnership, has acquired certain coal and coal related
properties and certain quarry and quarry related properties, and in exchange for
certain gold and gold related properties.
2. In view of the addition of the coal and quarry assets and related
assets to the assets of the Partnership, the Partners desire to make the
following amendment to the Partnership Agreement:.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Partners hereby agree to amend the Partnership Agreement
as follows:
Section 1.2 of the Partnership Agreement is hereby amended to read as
follows:
"1.2 Name. The name of the Partnership shall be:
----
"Hanson Natural Resources Company"
The Businesses shall be operated as five divisions of the Partnership (the
"Divisions"), under the names "Cavenham Forest Industries Division",
"Cavenham Energy Resources Division", "Gold Fields Mining Company", "Lee
Ranch Coal Company" and "Western Rock Products", "Western Arizona Rock
Products", and "Cal West Rock Products" (and such other names as the
Partners may adopt from time to time for a division consisting of the
quarry and quarry related assets of the Partnership), and shall thereafter
be called by such other names as the Partners shall from time to time
determine. The Partners shall execute, publish and/or file all assumed or
fictitious name, or other similar, certificates required by law to be
published and filed, or either, in connection with the formation and
operation of the Partnership in each state and locality it is necessary or
desirable to publish or file any of the same in order to form and
maintained the Partnership and/or to operated the Businesses."
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written
CAVENHAM FOREST INDUSTRIES, INC., a
Delaware corporation
By: [Executed]
--------------------------------
Title: ______________________________
CAVENHAM ENERGY RESOURCES,
INC., a Delaware corporation
By: [Executed]
--------------------------------
Title: ______________________________
GOLD FIELDS MINING
CORPORATION,
a Delaware corporation
By: [Executed]
--------------------------------
Title: ______________________________
23
<PAGE>
Exhibit 3.83
CERTIFICATE OF INCORPORATION
OF
ARMCO TERMINAL COMPANY
FIRST: The name of the Corporation is Armco Terminal Company.
SECOND: The address of its registered office in the State of
Delaware is No. 100 West Tenth Street, in the City of
Wilmington, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares which the Corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is one dollar ($1.00) amounting in the aggregate to one thousand
dollars ($1,000).
FIFTH: The name and mailing address of the sole incorporator is
as follows:
NAME MAILING ADDRESS
---- ---------------
Thomas H. Atkins 703 Curtis Street
Middletown, Ohio 45043
SIXTH: The books of the Corporation may be kept within or without
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the By-Laws of the Corporation. Election of
directors need not be by written ballot.
<PAGE>
2
SEVENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
The undersigned, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, does make this certificate, hereby declaring and
clarifying that this is my act and deed and that the facts herein stated are
true, and accordingly have hereunto set my hand this 1st day of April, 1982.
/s/ Thomas H. Atkins
----------------------------------
Thomas H. Atkins
RECEIVED FOR RECORD
May 17 1982
LEO J. DUGAN, Jr., Recorder
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * * *
ARMCO TERMINAL COMPANY, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the
unanimous written consent of its members, filed with the minutes of the board,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of said corporation:
RESOLVED, That the Certificate of Incorporation of ARMCO TERMINAL
COMPANY be amended by changing Article FIRST thereof so that, as amended,
said Article shall be and read as follows:
"FIRST: The name of the corporation is:
PEABODY TERMINALS, INC."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of sections 242 and 228 of the General
Corporation Law of the State of Delaware.
<PAGE>
2
IN WITNESS WHEREOF, said ARMCO TERMINAL COMPANY has caused this certificate
to be signed by its President and attested by its Secretary, this 1st day of
March, 1984.
By [executed]
----------------------------
President
ATTEST:
[executed]
- ---------------------------------
Asst. Secretary
RECEIVED FOR RECORD
May 12 1984
LEO J. DUGAN, Jr.,
Recorder
<PAGE>
Exhibit 3.84
BY-LAWS
of
PEABODY TERMINALS, INC.
ARTICLE I - OFFICES
Section 1.1. Location. The address of the registered office of the
--------
Corporation in the State of Delaware and the name of the registered agent at
such address shall be as specified in the Certificate of Incorporation or, if
subsequently changed, as specified in the most recent certificate of change
filed pursuant to law. The Corporation may also have other offices at such
places within or without the State of Delaware as the Board of Directors may
from time to time designate or the business of the Corporation may require.
Section 1.2. Change of Location. In the manner permitted by law, the
------------------
Board of Directors or the registered agent may change the address of the
Corporation's registered office in the State of Delaware and the Board of
Directors may make, revoke or change the designation of the registered agent.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meeting of the stockholders
--------------
of the Corporation for the election of directors and for the transaction of such
other business as may properly come before the meeting shall be held at the
registered office of the Corporation, or at such other place within or without
the State of Delaware as the Board of Directors may fix, during the month of
April. (Amended May 21, 1984.)
Section 2.2. Special Meetings. Special meetings of stockholders,
----------------
unless otherwise prescribed by law, may be called at any time by the Chairman of
the Board, by the President or by order of the Board of Directors. Special
meetings of stockholders prescribed by law for the election of directors shall
be called by the Board of Directors, the President, or the Secretary whenever
required to do so pursuant to the applicable law. Special meetings of
stockholders shall be held at such place within or without the State of Delaware
as shall be designated in the notice of meeting.
Section 2.3. List of Stockholders Entitled to Vote. The officer who
-------------------------------------
has charge of the stock ledger of the Corporation shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
stockholders, a complete list, based upon the record date for such meeting
determined pursuant to Section 5.8, of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the
<PAGE>
2
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting or, if such place shall not be
so specified, at the place where said meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the
stockholders entitled (i) to examine the stock ledger, the list of stockholders
entitled to vote at any meeting, or the books of the Corporation, or (ii) to
vote in person or by proxy at any meeting of stockholders.
Section 2.4. Notice of Meetings. Written notice of each annual and
------------------
special meeting of stockholders, other than any meeting the giving of notice of
which is otherwise prescribed by law, stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes thereof,
shall be delivered or mailed in writing at least ten but not more than sixty
days before such meeting, to each stockholder required or permitted to take any
action or entitled to vote thereat. If mailed, such notice shall be deposited
in the United States mail, postage prepaid, directed to such stockholder at his
address as the same appears on the records of the Corporation. An affidavit of
the Secretary, an Assistant Secretary or the transfer agent of the Corporation
that notice has been duly given shall be evident of the facts stated therein.
Section 2.5. Adjourned Meetings and Notice Thereof. Any meeting of
-------------------------------------
stockholders may be adjourned to another time or place, and the Corporation may
transact at any adjourned meeting any business which might have been transacted
at the original meeting. Notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken, unless (a) any adjournment or series of adjournments cause the
original meeting to be adjourned for more than thirty days after the date
originally fixed therefor, or (b) a new record date is fixed for the adjourned
meeting. If notice of an adjourned meeting is given, such notice shall be given
to each stockholder of record entitled to vote at the adjourned meeting in the
manner prescribed in Section 2.4 for the giving of notice of meetings.
Section 2.6. Quorum. At any meeting of stockholders, except as
------
otherwise expressly required by law, or by the Certificate of Incorporation, the
holders of record of at least a majority of the outstanding shares of capital
stock entitled to vote at or act at such meetings shall be present or
represented by proxy in order to constitute a quorum for the transaction of any
business, but less than a quorum shall have power to adjourn any meeting until a
quorum shall be present. When a quorum is
<PAGE>
once present to organize a meeting, the quorum cannot be destroyed by the
subsequent withdrawal or revocation of the proxy of any stockholder. Shares of
capital stock owned by the Corporation or by another corporation, if a majority
of the shares of such other corporation entitled to vote in the election of
directors is held by the Corporation, shall not be counted for quorum purposes
or entitled to vote.
Section 2.7. Voting. At any meeting of stockholders each stockholder
------
holding as of the record date shares of stock entitled to be voted on any matter
at such meeting shall have one vote on each such matter submitted to vote at
such meeting for each such share of stock held by such stockholder as of the
record date as shown by the list of stockholders entitled to vote at the
meeting, unless the Certificate of Incorporation provides for more or less than
one vote for any share on any matter, in which case every reference to a
required proportion of stock shall refer to the proportion of the votes of such
stock.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy, provided that no
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only so long as, it is coupled
with an interest, whether in the stock itself or in the Corporation, sufficient
in law to support an irrevocable power.
The Board of Directors, the President, or the person presiding at a
meeting of stockholders, may appoint one or more persons to act as inspectors of
voting at any meeting with respect to any matter to be submitted to a vote of
stockholders at such meeting, with such powers and duties, not inconsistent with
applicable law, as may be appropriate.
Section 2.8. Action by Consent of Stockholders. Unless otherwise
---------------------------------
provided in the Certificate of Incorporation whenever any action by the
stockholders at a meeting thereof is required or permitted by law, the
Certificate of Incorporation, or these By-Laws, such action may be taken without
a meeting, without prior notice and without a vote if a consent in writing,
setting forth the action so taken, shall be signed by the holders of the
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
such action without a meeting and by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
<PAGE>
4
ARTICLE III - BOARD OF DIRECTORS
Section 3.1. General Powers. The property, business and affairs of
--------------
the Corporation shall be managed by the Board of Directors. The Board of
Directors may exercise all such powers of the Corporation and have such
authority and do all such lawful acts and things as are permitted by law, the
Certificate of Incorporation or these By-Laws.
Section 3.2. Number of Directors. The Board of Directors of the
-------------------
Corporation shall consist of one or more members; the exact number of directors
which shall constitute the whole Board of Directors shall be fixed from time to
time by resolution adopted by a majority of the whole Board of Directors. Until
the number of directors has been so fixed by the Board of Directors, the number
of directors constituting the whole Board of Directors shall be five. After
fixing the number of directors constituting the whole Board of Directors, the
Board of Directors may, by resolution adopted by a majority of the whole Board
of Directors, from time to time change the number of directors constituting the
whole Board of Directors.
Section 3.3. Qualification. Directors need not be stockholders of
-------------
the Corporation.
Section 3.4. Election. Except as otherwise provided by law, the
--------
Certificate of Incorporation, or these By-Laws, after the first meeting of the
Corporation at which directors are elected, directors of the Corporation shall
be elected in each year at the annual meeting of stockholders, or at a special
meeting in lieu of the annual meeting called for such purpose, by a plurality of
votes cast at such meeting. The voting on directors at any such meeting need
not be by written ballot.
Section 3.5. Term. Each director shall hold office until his
----
successor is duly elected and qualified, except in the event of the earlier
termination of his term of office by reason of death, resignation, removal or
other reason.
Section 3.6. Resignation and Removal. Any director may resign at any
-----------------------
time upon written notice to the Board of Directors, the President or the
Secretary. The resignation of any director shall take effect upon receipt of
notice thereof or at such later time as shall be specified in such notice, and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective. Any director may be removed at any time and
his place filled in the manner provided in Section 3.7.
Section 3.7. Vacancies. Vacancies in the Board of Directors (unless
---------
the vacancy be caused by the removal of a director) and newly created
directorships resulting from any increase in the authorized number of directors
shall be filled by
<PAGE>
5
a majority of the directors then in office, though less than a quorum, or by a
sole remaining director.
If one or more directors shall resign from the Board of Directors
effective at a future date, a majority of the directors then in office,
including those who have so resigned at a future date, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect and the vacancy to be
filled when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this section in the filling
of other vacancies.
Each director chosen to fill a vacancy on the Board of Directors shall
hold office until the next annual election of directors and until his successor
shall be elected and qualified.
Section 3.8. Quorum and Voting. Unless the Certificate of
-----------------
Incorporation provides otherwise, at all meetings of the Board of Directors a
majority of the total number of directors shall be present to constitute a
quorum for the transaction of business. A director interested in a contract or
transaction may be counted in determining the presence of a quorum at a meeting
of the Board of Directors which authorizes the contract or transaction. In the
absence of a quorum, a majority of the directors present may adjourn the meeting
until a quorum shall be present.
Unless the Certificate of Incorporation provides otherwise, members of
the Board of Directors or any committee designated by the Board of Directors may
participate in a meeting of the Board of Directors or such committee by means of
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such a meeting shall constitute presence in person at such meeting.
The vote of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors unless the
Certificate of Incorporation or these By-Laws shall require a vote of a greater
number.
Section 3.9. Regulations. The Board of Directors may adopt such
-----------
rules and regulations for the conduct of the business and management of the
Corporation, not inconsistent with law or the Certificate of Incorporation or
these By-Laws, as the Board of Directors may deem proper. The Board of
Directors may hold its meetings and cause the books and records of the
Corporation to be kept at such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine. A member of
the Board of Directors shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account or reports made to
the Corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable
<PAGE>
6
care by the Board of Directors or any committee of the Board of Directors or in
relying in good faith upon other records of the Corporation.
Section 3.10. Annual Meeting of Board of Directors. An annual
------------------------------------
meeting of the Board of Directors shall be called and held for the purpose of
organization, election of officers and transaction of any other business. If
such meeting is held promptly after and at the place specified for the annual
meeting of stockholders, no notice of the annual meeting of the Board of
Directors need be given. Otherwise such annual meeting shall be held at such
time (not more than thirty days after the annual meeting of stockholders) and
place as may be specified in a notice of the meeting.
Section 3.11. Regular Meetings. Regular meetings of the Board of
----------------
Directors shall be held at the time and place, within or without the State of
Delaware, as shall from time to time be determined by the Board of Directors.
After there has been such determination and notice thereof has been given to
each member of the Board of Directors, no further notice shall be required for
any such regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
Section 3.12. Special Meetings. Special meetings of the Board of
----------------
Directors may, unless otherwise prescribed by law, be called from time to time
by the President, and shall be called by the President or the Secretary upon the
written request of a majority of the whole Board of Directors directed to the
President or the Secretary. Except as provided below, notice of any special
meeting of the Board of Directors, stating the time, place and purpose of such
special meeting, shall be given to each director.
Section 3.13. Notice of Meetings; Waiver of Notice. Notice of any
------------------------------------
meeting of the Board of Directors shall be deemed to be duly given to a director
(i) if mailed to such director, addressed to him at his address as it appears
upon the books of the Corporation, or at the address last made known in writing
to the Corporation by such director as the address to which such notices are to
be sent, at least two days before the day on which such meeting is to be held,
or (ii) if sent to him at such address by telegraph, cable, radio or wireless
not later than the day before the day on which such meeting is to be held, or
(iii) if delivered to him personally or orally, by telephone or otherwise, not
later than the day before the day on which such meeting is to be held. Each
such notice shall state the time and place of the meeting and the purposes
thereof.
Notice of any meeting of the Board of Directors need not be given to
any director if waived by him in writing (or by telegram, cable, radio or
wireless and confirmed in writing) whether before or after the holding of such
meeting, or if such
<PAGE>
7
director is present at such meeting. Any meeting of the Board of Directors
shall be a duly constituted meeting without any notice thereof having been given
if all directors then in office shall be present thereat.
Section 3.14. Committees of Directors. The Board of Directors may,
-----------------------
by resolution or resolutions passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to consist of one or
more of the directors of the Corporation.
Except as herein provided, vacancies in membership of any committee
shall be filled by the vote of a majority of the whole Board of Directors. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of any member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Members of a
committee shall hold office for such period as may be fixed by a resolution
adopted by a majority of the whole Board of Directors, subject, however, to
removal at any time by the vote of a majority of the whole Board of Directors.
Section 3.15. Powers and Duties of Committees. Any committee, to the
-------------------------------
extent provided in the resolution or resolutions creating such committee, shall
have and may exercise the powers of the Board of Directors in the management of
the business affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. No such committee
shall have the power or authority with regard to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
ByLaws. The Board of Directors may, in the resolution creating a committee,
grant to such committee the power and authority to declare a dividend or
authorize the issuance of stock.
Each committee may adopt its own rules of procedure and may meet at
stated times or on such notice as such committee may determine. Except as
otherwise permitted by these By-Laws, each committee shall keep regular minutes
of its proceedings and report the same to the Board of Directors when required.
Section 3.16. Compensation of Directors. The Board of Directors may
-------------------------
from time to time, in its discretion, fix the amounts which shall be payable to
directors and to members of any committee of the Board of Directors for
attendance at the
<PAGE>
8
meetings of the Board of Directors or of such committee and for services
rendered to the Corporation.
Section 3.17. Action Without Meeting. Unless otherwise restricted by
----------------------
the Certificate of Incorporation, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members of
the Board of Directors or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
ARTICLE IV - OFFICERS
Section 4.1. Principal Officers. The principal officers of the
------------------
Corporation shall be elected by the Board of Directors and shall include a
President, a Secretary and a Treasurer and may, at the discretion of the Board
of Directors, also include a Chairman of the Board, one or more Vice Presidents,
and a Controller. Except as otherwise provided in the Certificate of
Incorporation or these By-Laws, one person may hold the offices and perform the
duties of any two or more of said principal offices except the offices and
duties of President and Vice President or of President and Secretary. None of
the principal officers, except the Chairman of the Board and the President, need
be directors of the Corporation.
Section 4.2. Election of Principal Officers; Term of Office. The
----------------------------------------------
principal officers of the Corporation shall be elected annually by the Board of
Directors at each annual meeting of the Board of Directors. Failure to elect
any principal officer annually shall not dissolve the Corporation.
If the Board of Directors shall fail to fill any principal office at
an annual meeting, or if any vacancy in any principal office shall occur, or if
any principal office shall be newly created, such principal office may be filled
at any regular or special meeting of the Board of Directors.
Each principal officer shall hold office until his successor is duly
elected and qualified, or until his earlier death, resignation or removal,
provided that the terms of office of all Vice Presidents shall terminate at any
annual meeting of the Board of Directors at which the President or any Vice
President is elected.
Section 4.3. Subordinate Officers, Agents and Employees. In addition
------------------------------------------
to the principal officers, the Corporation may have one or more Assistant
Treasurers, Assistant Secretaries and such other subordinate officers, agents
and employees as the Board of Directors may deem advisable, each of whom shall
hold office for such period and have such authority and perform such duties as
the Board of Directors, the President, or any officer
<PAGE>
9
designated by the Board of Directors, may from time to time determine. The
Board of Directors at any time may appoint and remove, or may delegate to any
principal officer the power to appoint and to remove, any subordinate officer,
agent or employee of the Corporation.
Section 4.4. Delegation of Duties of Officers. The Board of
--------------------------------
Directors may delegate the duties and powers of any officer of the Corporation
to any other officer or to any director for a specified period of time for any
reason that the Board of Directors may deem sufficient.
Section 4.5. Removal of Officers. Any officer of the Corporation may
-------------------
be removed with or without cause by resolution adopted by a majority of the
directors then in office at any regular or special meeting of the Board of
Directors or by a written consent signed by all of the directors then in office.
Section 4.6. Resignations. Any officer may resign at any time by
------------
giving written notice of resignation to the Board of Directors, to the President
or to the Secretary. Any such resignation shall take effect upon receipt of
such notice or at any later time specified therein. Unless otherwise specified
in the notice, the acceptance of a resignation shall not be necessary to make
the resignation effective.
Section 4.7. Chairman of the Board. The Chairman of the Board shall
---------------------
preside at all meetings of stockholders and of the Board of Directors at which
he is present. The Chairman of the Board shall have such other powers and
perform such other duties as may be assigned to him from time to time by the
Board of Directors.
Section 4.8. President. The President shall, in the absence of the
---------
Chairman of the Board, preside at all meetings of the stockholders and of the
Board of Directors at which he is present. The President shall have all powers
and duties usually incident to the office of the President except as
specifically limited by a resolution of the Board of Directors. The President
shall have such other powers and perform such other duties as may be assigned to
him from time to time by the Board of Directors.
Section 4.9. Vice President. In the absence or disability of the
--------------
President or if the office of President be vacant, the Vice Presidents in the
order determined by the Board of Directors, or if no such determination has been
made in the order of their seniority, shall perform the duties and exercise the
powers of the President, subject to the right of the Board of Directors at any
time to extend or confine such powers and duties or to assign them to others.
Any Vice President may have such additional designation in his title as the
Board of Directors may determine. The Vice Presidents shall generally assist
the President in such manner as the President shall direct. Each Vice President
shall have such other powers and perform such
<PAGE>
10
other duties as may be assigned to him from time to time by the Board of
Directors or the President.
Section 4.10. Secretary. The Secretary shall act as Secretary of all
---------
meetings of stockholders and of the Board of Directors at which he is present,
shall record all the proceedings of all such meetings in a book to be kept for
that purpose, shall have supervision over the giving and service of notices of
the Corporation, and shall have supervision over the care and custody of the
records and seal of the Corporation. The Secretary shall be empowered to affix
the corporate seal to documents, the execution of which on behalf of the
Corporation under its seal is duly authorized, and when so affixed may attest
the same. The Secretary shall have all powers and duties usually incident to
the office of Secretary, except as specifically limited by a resolution of the
Board of Directors. The Secretary shall have such other powers and perform such
other duties as may be assigned to him from time to time by the Board of
Directors or the President.
Section 4.11. Treasurer. The Treasurer shall have general
---------
supervision over the care and custody of the funds and over the receipts and
disbursements of the Corporation and shall cause the funds of the Corporation to
be deposited in the name of the Corporation in such banks or other depositaries
as the Board of Directors may dictate. The Treasurer shall have supervision
over the care and safekeeping of the securities of the Corporation. The
Treasurer shall have all powers and duties usually incident to the office of
Treasurer except as specifically limited by a resolution of the Board of
Directors. The Treasurer shall have such other powers and perform such other
duties as may be assigned to him from time to time by the Board of Directors or
the President.
Section 4.12. Controller. The Controller shall be the chief
----------
accounting officer of the Corporation and shall have supervision over the
maintenance and custody of the accounting operations of the Corporation,
including the keeping of accurate accounts of all receipts and disbursements and
all other financial transactions. The Controller shall have all powers and
duties usually incident to the office of Controller except as specifically
limited by a resolution of the Board of Directors. The Controller shall have
such other powers and perform such other duties as may be assigned to him from
time to time by the Board of Directors or the President.
Section 4.13. Bond. The Board of Directors shall have power, to the
----
extent permitted by law, to require any officer, agent or employee of the
Corporation to give bond for the faithful discharge of his duties in such form,
and with such surety or sureties as the Board of Directors may determine.
<PAGE>
11
ARTICLE V - CAPITAL STOCK
Section 5.1. Issuance of Certificates for Stock. Each stockholder of
----------------------------------
the Corporation shall be entitled to a certificate or certificates in such form
as shall be approved by the Board of Directors, certifying the number of shares
of capital stock of the Corporation owned by such stockholder.
Section 5.2. Signatures on Stock Certificates. Certificates for
--------------------------------
shares of capital stock of the Corporation shall be signed by, or in the name of
the Corporation by, the Chairman of the Board, the President or a Vice President
and by the Secretary, the Treasurer, an Assistant Secretary or an Assistant
Treasurer. Any of or all the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued,
such certificate may be issued by the Corporation with the same effect as if
such signer were such officer, transfer agent or registrar at the date of issue.
Section 5.3. Stock Ledger. A record of all certificates for capital
------------
stock issued by the Corporation shall be kept by the Secretary or any other
officer or employee of the Corporation designated by the Secretary or by any
transfer clerk or transfer agent appointed pursuant to Section 5.4 hereof. Such
record shall show the name and address of the person, firm or corporation in
which certificates for capital stock are registered, the number of shares
represented by each such certificate, the date of each such certificate, and in
case of certificates which have been cancelled the dates of cancellation
thereof.
The Corporation shall be entitled to treat the holder of record of
shares of capital stock as shown on the stock ledger as the owner thereof and as
the person entitled to receive dividends thereon, to vote such shares and to
receive notice of meetings, and for all other purposes. The Corporation shall
not be bound to recognize any equitable or other claim to or interest in any
share of capital stock on the part of any other person whether or not the
Corporation shall have express or other notice thereof.
Section 5.4. Regulations Relating to Transfer. The Board of
--------------------------------
Directors may make such rules and regulations as it may deem expedient, not
inconsistent with law, the Certificate of Incorporation or these By-Laws,
concerning issuance, transfer and registration of certificates for shares of
capital stock of the Corporation. The Board of Directors may appoint, or
authorize any principal officer to appoint, one or more transfer clerks or one
or more transfer agents and one or more registrars and may require all
certificates for capital stock to bear the signature or signatures of any of
them.
<PAGE>
12
Section 5.5. Transfers. Transfers of capital stock shall be made on
---------
the books of the Corporation only upon delivery to the Corporation or its
transfer agent of (i) a written direction of the registered holder named in the
certificate or such holder's attorney lawfully constituted in writing, (ii) the
certificate for the shares of capital stock being transferred, and (iii) a
written assignment of the shares of capital stock evidenced thereby.
Section 5.6. Cancellation. Each certificate for capital stock
------------
surrendered to the Corporation for exchange or transfer shall be cancelled and
no new certificate or certificates shall be issued in exchange for any existing
certificate (other than pursuant to Section 5.7) until such existing certificate
shall have been cancelled.
Section 5.7. Lost, Destroyed, Stolen and Mutilated Certificates. In
--------------------------------------------------
the event that any certificate for shares of capital stock of the Corporation
shall be mutilated the Corporation shall issue a new certificate in place of
such mutilated certificate. In case any such certificate shall be lost, stolen
or destroyed the Corporation may, in the discretion of the Board of Directors or
a committee designated thereby with power so to act, issue a new certificate for
capital stock in the place of any such lost, stolen or destroyed certificate.
The applicant for any substituted certificate or certificates shall surrender
any mutilated certificate or, in the case of any lost, stolen or destroyed
certificate, furnish satisfactory proof of such loss, theft or destruction of
such certificate and of the ownership thereof. The Board of Directors or such
committee may, in its discretion, require the owner of a lost or destroyed
certificate, or his representatives, to furnish to the Corporation a bond with
an acceptable surety or sureties and in such sum as will be sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the lost, stolen or destroyed certificate or the issuance of such new
certificate. A new certificate may be issued without requiring a bond when, in
the judgment of the Board of Directors, it is proper to do so.
Section 5.8. Fixing of Record Dates. (a) The Board of Directors may
----------------------
fix, in advance, a record date, which shall not be more than sixty nor less than
ten days before the date of any meeting of stockholders, nor more than sixty
days prior to any other action, for the purpose of determining stockholders
entitled to notice of or to vote at such meeting of stockholders or any
adjournment thereof, or to express consent or dissent to corporate action in
writing without a meeting, or to receive payment or any dividend or other
distribution or allotment of any rights, or to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action.
<PAGE>
13
(b) If no record date is fixed by the Board of Directors: (i) The
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held; (ii)
The record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the day on which the first consent is
expressed; (iii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE VI - INDEMNIFICATION
Section 6.1. Indemnification of Officers and Directors. The Company
-----------------------------------------
shall, to the fullest extent permitted by applicable law, indemnify any person
(and the heirs, executors and administrators thereof) who was or is made, or
threatened to be made, a party to an action, suit or proceeding, whether civil,
criminal, administrative or investigative, whether involving any actual or
alleged breach of duty, neglect or error, any accountability, or any actual or
alleged misstatement, misleading statement or other act or omission and whether
brought or threatened in any court or administrative or legislative body or
agency, including an action by or in the right of the Company to procure a
judgment in its favor and an action by or in the right of any other corporation
of any type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, which any director or officer
of the Company is serving or served in any capacity at the request of the
Company, by reason of the fact that he, his testator or intestate is or was a
director or officer of the Company, or is serving or served such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in
settlement, and costs, charges and expenses, including attorneys' fees, incurred
therein or in any appeal thereof.
Section 6.2. Indemnification of Others. The Company shall indemnify
-------------------------
other persons and reimburse the expenses thereof, to the extent required by
applicable law, and may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses, whether
pursuant to rights granted pursuant to, or provided by, the Delaware General
Corporation Law or otherwise.
<PAGE>
14
Section 6.3. Reimbursement. The Company shall, from time to time,
-------------
reimburse or advance to any person referred to in Section 6.1 the funds
necessary for payment of expenses, including attorneys' fees, incurred in
connection with any action, suit or proceeding referred to in Section 6.1, or
upon receipt of a written undertaking by or on behalf of such person to repay
such amount(s) if a judgment or other final adjudication adverse to the director
or officer establishes that (i) his acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were material to
the cause of action so adjudicated, (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled or
(iii) his conduct was otherwise of a character such that Delaware law would
require that such amount(s) be repaid.
Section 6.4. Service to Other Corporations. Any director or officer
-----------------------------
of the Company serving (i) another corporation, of which a majority of the
shares entitled to vote in the election of its directors is held by the Company,
or (ii) any employee benefit plan of the Company or any corporation referred in
clause (i), in any capacity shall be deemed to be doing so at the request of the
Company.
Section 6.5. Applicable Law. Any person entitled to be indemnified
--------------
or to the reimbursement or advancement of expenses as a matter of right pursuant
to this Article may elect to have the right to indemnification (or advancement
of expenses) interpreted on the basis of the applicable law in effect at the
time of the occurrence of the event or events giving rise to the action, suit or
proceeding, to the extent permitted by applicable law, or on the basis of the
applicable law in effect at the time indemnification is sought.
Section 6.6. Contract Right. The right to be indemnified or to the
--------------
reimbursement or advancement of expenses pursuant to this Article (i) is a
contract right pursuant to which the person entitled thereto may bring suit as
if the provisions hereof were set forth in a separate written contract between
the Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
Section 6.7. Failure to Indemnify. If a request to be indemnified or
--------------------
for the reimbursement or advancement of expenses pursuant hereto is not paid in
full by the Company within thirty days after a written claim has been received
by the Company, the claimant may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and, if successful in whole or
in part, the claimant shall be entitled also to be paid the expenses of
prosecuting such claim. Neither the failure of the Company (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
<PAGE>
15
determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the Company (including its Board
of Directors, independent legal counsel, or its stockholders) that the claimant
is not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled. (Amended October 16, 1986.)
ARTICLE VII - MISCELLANEOUS PROVISIONS
Section 7.1. Fiscal Year. The fiscal year of the Corporation shall be the
-----------
calendar year, or such other twelve consecutive months as the Board of Directors
may designate.
Section 7.2. Waiver of Notice. Whenever any notice is required to be
----------------
given under any provision of law, the Certificate of Incorporation, or these By-
Laws, a written waiver thereof, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders' directors, or members of
a committee of directors need be specified in any written waiver of notice
unless so required by the Certificate of Incorporation.
Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Section 7.4. Execution of Instruments, Contracts, etc. (a) All
-----------------------------------------
checks, drafts, bills of exchange, notices or other obligations or orders for
the payment of money shall be signed in the name of the Corporation by such
officer or officers or person or persons, as the Board of Directors may from
time to time designate. (b) Except as otherwise provided by law, the Board of
Directors, any committee given specific authority in the premises by the Board
of Directors, or any committee given authority to exercise generally the powers
of the Board of Directors during the intervals between meetings of the Board of
Directors, may authorize any officer, employee or agent, in the name of and on
behalf of the Corporation, to enter into or execute and deliver deeds, bonds,
mortgages, contracts and other obligations or instruments, and such authority
may be general or confined to specific instances. (c) All applications,
written instruments and papers required by or filed with any department of the
United States Government or any state, county, municipal or other governmental
official or authority, may if permitted by applicable law be executed in the
name of the Corporation by any principal officer or subordinate officer of the
Corporation, or,
<PAGE>
16
to the extent designated for such purpose from time to time by the Board of
Directors, by an employee or agent of the Corporation. Such designation may
contain the power to substitute, in the discretion of the person named, one or
more other persons.
ARTICLE VIII - AMENDMENTS; EMERGENCY BY-LAWS
Section 8.1. By Stockholders. These By-Laws may be amended, added
---------------
to, altered or repealed, or new By-Laws may be adopted, at any meeting of
stockholders by the vote of the holders of not less than a majority of the
outstanding shares of stock entitled to vote thereat, provided that, in the case
of a special meeting, notice that an amendment is to be considered and acted
upon shall be inserted in the notice or waiver of notice of said meeting.
Section 8.2. By Directors. To the extent permitted by the
------------
Certificate of Incorporation, these By-Laws may be amended, added to, altered or
repealed, or new By-Laws may be adopted at any regular or special meeting of the
Board of Directors.
Section 8.3. Emergency By-Laws. The Board of Directors may adopt
-----------------
emergency by-laws subject to repeal or change by action of the stockholders
which shall, notwithstanding any different provision of law, the Certificate of
Incorporation or these By-Laws, be operative during any emergency resulting from
any nuclear or atomic disaster, an attack on the United States or on a locality
in which the Corporation conducts its business or customarily holds meetings of
the Board of Directors or stockholders, any catastrophe, or other similar
emergency condition, as a result of which a quorum of the Board of Directors or
a standing committee thereof cannot readily be convened for action. Such
emergency by-laws may make any provision that may be practicable and necessary
for the circumstances of the emergency. No officer, director or employee acting
in accordance with any emergency by-laws shall be liable except for willful
misconduct.
<PAGE>
EXHIBIT 3.85
CERTIFICATE OF INCORPORATION
OF
PEABODY VENEZUELA COAL CORP.
* * * * *
1. The name of the corporation is
PEABODY VENEZUELA COAL CORP.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and
deal with goods, wares and merchandise and personal property of every class and
description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
<PAGE>
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive, hold,
own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise
dispose of or deal in and with any of the shares of the capital stock, or any
voting trust certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, chooses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign government, or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
To borrow or raise money for any of the purposes of the corporation and,
from time to time without limit as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other
2
<PAGE>
negotiable or non-negotiable instruments and evidences of indebtedness, and to
secure the payment of any thereof and of the interest thereon by mortgage upon
or pledge, conveyance or assignment in trust of the whole or any part of the
property of the corporation, whether at the time owned or thereafter acquired,
and to sell, pledge or otherwise dispose of such bonds or other obligations of
the corporation for its corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with real or personal property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of the corporation's property and assets,
or any interest therein, wherever situated. In general, to possess and exercise
all the powers and privileges granted by the General Corporation Law of Delaware
or by any other law of Delaware or by this Certificate of Incorporation together
with any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
or purposes of the corporation.
The business and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this certificate of
incorporation, but the business and purposes specified in each of the foregoing
clauses
3
<PAGE>
of this article shall be regarded as independent business and purposes.
4. The total number of shares of stock which the corporation shall have
authority to issue is one thousand (1,000) and the par value of each of such
shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
5. The name and mailing address of each incorporator
is as follows:
NAME MAILING ADDRESS
---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and
personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper
4
<PAGE>
purpose and to abolish any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. The by-laws may provide that in the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or by-laws, expressly so
provide, no such committee shall have the
5
<PAGE>
power or authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute, to
sell, lease or exchange all or substantially all of the property and assets of
the corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the by-
laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
6
<PAGE>
11. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 4th day of
May, 1992.
/s/ M. A. Brzoska
------------------
M. A. Brzoska
/s/ K. A. Widdoes
------------------
K. A. Widdoes
/s/ L. J. Vitalo
-----------------
L. J. Vitalo
7
<PAGE>
EXHIBIT 3.86
PEABODY VENEZUELA COAL CORP.
* * * * *
BY - LAWS
* * * * *
ARTICLE I
---------
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1993, shall be held on the first day of the month of May if not a legal holiday,
and if a legal holiday, then on the next secular day following, at 10:00 A.M.,
or at such other
<PAGE>
date and time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the
2
<PAGE>
president and shall be called by the president or secretary at the request in
writing of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than
3
<PAGE>
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at
4
<PAGE>
a meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
-----------
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be one. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors,
5
<PAGE>
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
6
<PAGE>
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings
7
<PAGE>
are filed with the minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the
8
<PAGE>
issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation) adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be
9
<PAGE>
paid a fixed sum for attendance at each meeting of the board of directors or a
stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
----------
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing,
10
<PAGE>
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
ARTICLE V
---------
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of
11
<PAGE>
directors. Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
12
<PAGE>
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
13
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the
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<PAGE>
absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
----------
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer,
15
<PAGE>
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction
16
<PAGE>
upon its books. Upon receipt of proper transfer instructions from the registered
owner of uncertificated shares such uncertificated shares shall be cancelled and
issuance of new equivalent uncertificated shares or certificated shares shall be
made to the person entitled thereto and the transaction shall be recorded upon
the books of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be
17
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bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
-----------
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
18
<PAGE>
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
------------
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or
19
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adoption of new by-laws be contained in the notice of such special meeting. If
the power to adopt, amend or repeal by-laws is conferred upon the board of
directors by the certificate of incorporation it shall not divest or limit the
power of the stockholders to adopt, amend or repeal by-laws.
20
<PAGE>
EXHIBIT 3.87
CERTIFICATE OF INCORPORATION
OF
PEABODY WESTERN COAL COMPANY
* * * * *
NAME MAILING ADDRESS
---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
W. H. Carson 1300 S. Yale
Flagstaff, AZ 86001
G. L. Melvin 1300 S. Yale
Flagstaff, AZ 86001
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
<PAGE>
2
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The by-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or
<PAGE>
3
by-laws, expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in whole
or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the.
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve
<PAGE>
4
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit.
<PAGE>
5
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 3rd day of
January, 1994.
/s/ M. A. Brzoska
--- -------------
Incorporator
/s/ K. A. Widdoes
--- -------------
Incorporator
/s/ L. J. Vitalo
--- ------------
Incorporator
<PAGE>
EXHIBIT 3.88
PEABODY WESTERN COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Flagstaff, State of Arizona, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1994, shall be held on the 15th day of May if not a legal holiday, and if a
legal holiday, then on the
<PAGE>
2
next secular day following, at 10:00 A.M., or at such other date and time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting, at which they shall elect by a plurality vote a board
of directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a
<PAGE>
3
majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which
<PAGE>
4
by express provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than two (2) nor more than five (5). The first board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be
<PAGE>
5
determined by resolution of the board of directors or by the stockholders at the
annual meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
<PAGE>
6
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on zero (0) days' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present
<PAGE>
7
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
<PAGE>
8
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
<PAGE>
9
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
<PAGE>
10
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors.
<PAGE>
11
Any vacancy occurring in any office of the corporation shall be filled by the
board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the
<PAGE>
12
corporation and of the board of directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. He
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the board of directors, and shall perform such other duties
as may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to
<PAGE>
13
the president and the board of directors, at its regular meetings, or when the
board of directors so requires, an account of all his transactions as treasurer
and of the financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
14
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that
<PAGE>
15
may be made against the corporation with respect to the certificate alleged to
have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
<PAGE>
16
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
17
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is
<PAGE>
18
conferred upon the board of directors by the certificate of incorporation at any
regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal by-
laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.89
CERTIFICATE OF INCORPORATION
OF
PINE RIDGE COAL COMPANY
* * * * *
1. The name of the corporation is
PINE RIDGE COAL COMPANY
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each
of such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten
Thousand Dollars ($10,000.00).
5A. The name and mailing address of each incorporator is as follows:
<PAGE>
2
NAME MAILING ADDRESS
---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
D. M. Dembkowski Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a
successor is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
G. S. Shiflett 800 Laidley Tower
Charleston, WV 25324
D. L. Stevenson 800 Laidley Tower
Charleston, WV 25324
R. A. Armstrong 800 Laidley Tower
Charleston, WV 25324
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
<PAGE>
3
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. The by-laws may provide that in the
absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place
of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the board of directors, or in the by-
laws of the corporation, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation
to be affixed to all papers which may require it; but no such committee
shall have the power or authority in reference to amending the Certificate
of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the
<PAGE>
4
by-laws of the corporation; and, unless the resolution or by-laws,
expressly so provide, no such committee shall have the power or authority
to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and
assets of the corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such consideration,
which may consist in whole or in part of money or property including shares
of stock in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and for the
best interests of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may
be kept (subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated from time to
time by the board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
<PAGE>
5
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 27th day
of September, 1994.
/s/ M. A. Brzoska
-------------------------------
M. A. Brzoska
Incorporator
/s/ K. A. Widdoes
-------------------------------
K. A. Widdoes
Incorporator
/s/ D. M. Dembkowski
-------------------------------
D. M. Dembkowski
Incorporator
<PAGE>
EXHIBIT 3.90
PINE RIDGE COAL COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Charleston, State of West Virginia, at
such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1995, shall be held on the _____ of May if not a legal holiday, and if a legal
holiday, then on the
<PAGE>
2
next secular day following, at 10 A.M., or at such other date and time as shall
be designated from time to time by the board of directors and stated in the
notice of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and
<PAGE>
3
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which
<PAGE>
4
by express provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than three. The first board shall
consist of three directors. Thereafter, within the limits above specified, the
number of directors shall be determined by
<PAGE>
5
resolution of the board of directors or by the stockholders at the annual
meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
<PAGE>
6
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president without notice to each director; special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of two directors unless the board consists of only one director; in
which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
<PAGE>
7
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors
<PAGE>
8
in the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the certificate of incorporation, (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors as provided in
Section 151 (a) fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation) adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of
<PAGE>
9
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
<PAGE>
10
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general
<PAGE>
11
and active management of the business of the corporation and shall see that all
orders and resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors
<PAGE>
12
or president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
<PAGE>
13
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each
<PAGE>
14
stockholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
<PAGE>
15
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
<PAGE>
16
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
17
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
<PAGE>
18
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.91
CERTIFICATE OF INCORPORATION
OF
POWDER RIVER COAL COMPANY
FIRST: The name of the corporation is
POWDER RIVER COAL COMPANY
SECOND: Its registered office in the State of Delaware is located at 100
West Tenth Street, in the City of Wilmington, County of New Castle. The name
and address of its registered agent is The Corporation Trust Company, 100 West
Tenth Street, Wilmington, Delaware.
THIRD: The nature of the business, or purposes to be conducted or
promoted, are:
A. To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
B. Without limiting the generality of the foregoing, to engage in the
business of mining, extracting, recovering and removing coal; to
construct, own and operate all necessary facilities; and to do all
things necessary or convenience in connection therewith,
C. To conduct its business in all or any of its branches in the State of
Delaware and in any or all other states, territories or possessions of
the United States of America and the District of Columbia, and in any
or all foreign countries, to have one or more offices within or
outside the State of Delaware, and to enter into partnership, joint
venture or similar arrangements to engage in any of the foregoing
activities.
FOURTH: The corporation shall have authority to issue 1,000 shares of
cordon stock with a par value of $100.00 per share. The minimum capital with
which the corporation will commence business is One Thousand Dollars
($1,000.00).
<PAGE>
2
FIFTH: The name and mailing address of the incorporator is as follows:
Marvin O. Young 301 North Memorial Drive
St. Louis, Missouri 63102
SIXTH: The private property the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
SEVENTH: The corporation is to have perpetual existence.
EIGHTH: The number of directors shall be fixed by the by-laws.
NINTH: The power to make, alter and repeal by-laws of the corporation is
conferred upon the board of directors.
TENTH: The corporation reserves the right to agency, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the incorporator hereinabove named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, does make this certificate, hereby declaring and certifying that the
facts herein stated are true, this 14th day of November, 1972.
/s/ Marvin O. Young
-----------------------------------
Marvin O. Young
<PAGE>
3
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
BE IT REMEMBERED, that on this 14th day of November, 1972, personally came
before me, a Notary Public for the State of Missouri, Marvin O. Young, the party
to the foregoing certificate of incorporation, known to me personally to be
such, and acknowledged the said certificate to be his free act and deed and that
the facts therein stated are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Marian E. Weir
-----------------------------------
Notary Public
My Commission expires:
July 27, 1975
- -----------------------
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
POWDER RIVER COAL COMPANY, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable an amendment to the Certificate of
Incorporation of said corporation as follows:
RESOLVED, That the Certificate of Incorporation of the Company be amended
by the addition thereto after paragraph "Fourth" of a new paragraph reading
as follows:
"That the presently authorized and issued two shares of capital stock of
the Company be changed and split up on the basis of three hundred shares
without a par value for each issued and outstanding share with a par value
of $100 per share for a total of 600 shares to be issued and outstanding;
and that the remaining authorized and unissued shares with a par value of
$100 per share be changed into 400 shares without a par value."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of sections 242 and 228 of the General Corporation Law
of the State of Delaware.
<PAGE>
2
IN WITNESS WHEREOF, said POWDER RIVER COAL COMPANY has caused this
certificate to be signed by J. F. Lake, its President, and attested by T. L.
O'Connor, it Secretary, this ____ day of October, 1987.
(SEAL)
By /s/ J.F. Lake
------------------------------
J. F. Lake, President
ATTEST:
By /s/ T. L. O'Connor
-------------------------
T. L. O'Connor, Secretary
<PAGE>
EXHIBIT 3.92
RESTATED BY-LAWS
OF
POWDER RIVER COAL COMPANY
(as amended August 16, 1990)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
<PAGE>
2
Section 2. Annual meetings of stockholders, commencing with the year
1990, shall be held on the second Tuesday in April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by
<PAGE>
3
the president and shall be called by the president or secretary at the request
in writing of a majority of the board of directors, or at the request in writing
of stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
<PAGE>
4
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
<PAGE>
5
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than six (6). The first board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
<PAGE>
6
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case
<PAGE>
7
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
<PAGE>
8
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders
<PAGE>
9
a dissolution of the corporation or a revocation of a dissolution, or amending
the by-laws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
<PAGE>
10
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
<PAGE>
11
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be
<PAGE>
12
expressly delegated by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by
<PAGE>
13
the signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation and
to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of
<PAGE>
14
his office and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative
<PAGE>
15
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
<PAGE>
16
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
<PAGE>
17
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
18
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. (a) The Company shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof)
<PAGE>
19
who was or is made, or threatened to be made, a party to an action, suit or
proceeding, whether civil, criminal, administrative or investigative, whether
involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is serving or served in
any capacity at the request of the Company, by reason of the fact that he, his
testator or intestate is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, incurred therein or in any appeal thereof.
(b) The Company shall indemnify other persons and reimburse the
expenses thereof, to the extent required by applicable law, and may indemnify
any other person to whom the Company is permitted to provide indemnification or
the advancement of expenses, whether pursuant to rights granted pursuant to, or
provided by, the Delaware General Corporation Law or otherwise.
(c) The Company shall, from time to time, reimburse or advance to any
person referred to in paragraph (a) the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in paragraph (a) above, upon receipt of a written
undertaking by or on behalf of such person to repay such
<PAGE>
20
amount(s) if a judgment or other final adjudication adverse to the director or
officer establishes that (i) his acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were material to
the cause of action so adjudicated, (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled, or
(iii) his conduct was otherwise of a character such that Delaware law would
require that such amount(s) be repaid.
(d) Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred in clause (i), in any capacity shall be
deemed to be doing so at the request of the Company.
(e) Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article may elect
to have the right to indemnification (or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action, suit or proceeding, to the extent
permitted by applicable law, or on the basis of the applicable law in effect at
the time indemnification is sought.
(f) The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
<PAGE>
21
(g) If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the company (including its Board
of Directors, independent legal counsel, or its stockholders) that the claimant
is not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of
<PAGE>
22
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.93
CERTIFICATE OF INCORPORATION
OF
RIO ESCONDIDO COAL CORP.
* * * * *
1. The name of the corporation is
RIO ESCONDIDO COAL CORP.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue one thousand (1,000) and the par value of each' of such
shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
At all elections of directors of the corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for such provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected by him, and he may cast all of such votes
for a single director or may distribute them among the
<PAGE>
2
number to be vestal for, or for any two or more of them as he may see fit.
5A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
J. E. Lushefski 701 Market Street, Suite 700
St. Louis, Missouri 63101
J. M Wootten P.O. Box 66746
St. Louis, Missouri 63166
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
<PAGE>
3
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware,
<PAGE>
4
do make this certificate, hereby declaring and certifying that this is our act
and deed and the facts herein stated are true, and accordingly have hereunto set
our hands this day of , 1993.
/s/ M.A. Bizoska
-----------------------------------
Incorporator
/s/ K.A. Widdoes
-----------------------------------
Incorporator
/s/ L.J. Vitulo
-----------------------------------
Incorporator
<PAGE>
EXHIBIT 3.94
BY-LAWS
OF
RIO ESCONDIDO COAL CORP.
(a Delaware corporation)
ARTICLE I
Stockholders
------------
SECTION 1. Annual Meetings. (a) All meetings of the Stockholders
---------------
for the election of directors shall be held in the County of New Castle, State
of Delaware, at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of Stockholders for any other purpose may
be held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
(b) Annual meetings of Stockholders shall be held on such date and at
such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a Board of Directors, and transact such other business as may properly be
brought before the meeting.
(c) Written notice of the annual meeting stating the place, date, and
hour of the meeting shall be given to each Stockholder entitled to vote at such
meeting not less than ten days nor more than sixty days prior to the date of the
meeting.
(d) The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten days before every meeting of Stockholders,
a complete list of the Stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Stockholder and the number
of shares registered in the name of each Stockholder. Such list shall be open
to the examination of any Stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any Stockholder who is present. The stock
ledger shall be the only evidence as to the Stockholders entitled to examine the
stock ledger, the list required by this section or the books of the Corporation,
or to vote in person or by proxy at any meeting of Stockholders.
SECTION 2. Special Meetings. (a) Special meetings of the
----------------
Stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation of the Corporation, may be called
by the President and shall be called by the
<PAGE>
2
President or Secretary at the request in writing of a majority of the Board of
Directors, or at the request in writing of a Stockholder or Stockholders owning
a majority in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
(b) Written notice of a special meeting stating the place, date, and
hour of the meeting and, in general terms, the purpose or purposes for which the
meeting is called, shall be given not less than ten days nor more than sixty
days prior to the date of the meeting, to each Stockholder entitled to vote at
such meeting. Whenever the directors shall fail to fix such place, the meeting
shall be held at the principal executive offices of the Corporation.
(c) Business transacted at any special meeting of Stockholders shall
be limited to the purpose or purposes stated in the notice.
SECTION 3. Quorums. (a) The holders of a majority of the stock
-------
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
Stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the Stockholders, the
Stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each Stockholder of
record entitled to vote at the meeting. When a quorum is once present it is not
broken by the subsequent withdrawal of any Stockholder.
(b) When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one on which by express provision of the Delaware General
Corporation Law or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
SECTION 4. Organization. Meetings of Stockholders shall be presided
------------
over by the Chairman, if any, or if none or in the Chairman's absence the
President, if any, or if none or in the President's absence, by a Chairman to be
chosen by the Stockholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the Corporation, or in the Secretary's
absence an Assistant Secretary, shall act as Secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall appoint any person present to act as Secretary of
the meeting.
SECTION 5. Voting; Proxies; Required Vote. (a) At each meeting of
------------------------------
Stockholders, every Stockholder shall be entitled to vote in person or by proxy
appointed by
<PAGE>
3
an instrument in writing, subscribed by such Stockholder or by such
Stockholder's duly authorized attorney-in-fact (but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period), and, unless the Certificate of Incorporation provides otherwise,
shall have one vote for each share of stock entitled to vote registered in the
name of such Stockholder on the books of the Corporation on the applicable
record date fixed pursuant to these By-Laws. At all elections of directors the
voting may but need not be by ballot and a plurality of the votes cast there
shall elect. Except as otherwise required by law or the Certificate of
Incorporation, any other action shall be authorized by a majority of the votes
cast.
(b) Any action required or permitted to be taken at any meeting of
Stockholders may, except as otherwise required by law or the Certificate of
Incorporation, be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of record of the issued and outstanding capital stock of
the Corporation having a majority of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted, and the writing or writings are filed with the permanent
records of the Corporation. Prompt notice of the taking of corporate action
without a meeting by less than unanimous written consent shall be given to those
Stockholders who have not consented in writing.
(c) Where a separate vote by a class or classes, present in person or
represented by proxy, shall constitute a quorum to vote on that matter, the
affirmative vote of the majority of shares of such class or classes present in
person or represented by proxy at the meeting shall be the act of such class,
unless otherwise provided in the Corporation's Certificate of Incorporation.
SECTION 6. The Board of Directors, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the meeting
or any adjournment thereof. If an inspector or inspectors are not so appointed,
the person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum, and the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all Stockholders. On request
of the person presiding at the meeting, the inspector or inspectors, if any,
shall make a report in writing of any challenge, question or matter determined
by such inspector or inspectors and execute a certificate of any fact found by
such inspector or inspectors.
<PAGE>
4
ARTICLE II
Board of Directors
------------------
SECTION 1. General Powers. The business, property and affairs of the
--------------
Corporation shall be managed by, or under the direction of, the Board of
Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each
-----------------------------------------
director shall be at least 18 years of age. A director need not be a
Stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board shall be one or
such other number not greater than ten as may be fixed from time to time by the
Board of Directors or the Stockholders. One of the directors may be selected by
the Board of Directors to be its Chairman, who shall preside at meetings of the
Stockholders and the Board of Directors and shall have such other duties, if
any, as may from time to time be assigned by the Board of Directors. In the
absence of formal selection, the President of the Corporation shall serve as
Chairman. The use of the phrase "entire Board" herein refers to the total
number of directors which the Corporation would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of Stockholders,
and directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of Stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal.
(c) Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing Committees may be allowed like compensation for attending
Committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided
---------------------------
by law, a majority of the entire Board of Directors shall constitute a quorum.
A majority of the directors present, whether or not a quorum is present, may
adjourn a meeting from time to time to another time and place without notice.
The vote of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
SECTION 4. Places of Meetings. Meetings of the Board of Directors
------------------
may be held at any place within or without the State of Delaware, as may from
time to time be fixed by resolution of the Board of Directors, or as may be
specified in the notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of
--------------
Stockholders, the newly elected Board of Directors shall meet for the purpose of
the election of officers and the transaction of such other business as may
properly come before the meeting. Such meeting may be held without notice
immediately after the annual meeting of Stockholders at the same place at which
such Stockholders' meeting is held.
<PAGE>
5
SECTION 6. Regular Meetings. Regular meetings of the Board of
----------------
Directors shall be held at such times and places as the Board of Directors shall
from time to time by resolution determine.
SECTION 7. Special Meetings. Special meetings of the Board of
----------------
Directors shall be held whenever called by the Chairman of the Board, President,
or by a majority of the directors then in office.
SECTION 8. Notice of Meetings. A notice of the place, date and time
------------------
and the purpose or purposes of each meeting of the Board of Directors shall be
given to each director by mailing the same at least two days before the meeting,
or by telephoning or faxing the same or by delivering the same personally not
later than the day before the day of the meeting.
SECTION 9. Organization. At all meetings of the Board of Directors,
------------
the Chairman or in the Chairman's absence or inability to act, the President, or
in the President's absence, a Chairman chosen by the directors, shall preside.
The Secretary of the Corporation shall act as secretary at all meetings of the
Board of Directors when present, and, in the Secretary's absence, the presiding
officer may appoint any person to act as Secretary.
SECTION 10. Resignation. Any director may resign at any time upon
-----------
written notice to the Corporation and such resignation shall take effect upon
receipt thereof by the President or Secretary, unless otherwise specified in the
resignation. Any or all of the directors may be removed, with or without cause,
by the holders of a majority of the shares of stock outstanding and entitled to
vote for the election of directors.
SECTION 11. Vacancies. Unless otherwise provided in these By-Laws,
---------
vacancies on the Board of Directors, whether caused by resignation, death,
disqualification, removal, an increase in the authorized number of directors or
otherwise, may be filled by the affirmative vote of a majority of the remaining
directors, although less than a quorum, or by a sole remaining director, or at a
special meeting of the Stockholders, by vote of the Stockholders required for
the election of directors generally.
SECTION 12. Action by Written Consent. Any action required or
-------------------------
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all the directors consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
SECTION 13. Electronic Communication. Any member or members of the
------------------------
Board of Directors may participate in a meeting of the Board by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear and speak to each other.
<PAGE>
6
ARTICLE III
Committees
----------
SECTION 1. Appointment. The Board of Directors may, by resolution
-----------
passed by a majority of the whole board, designate one or more Committees, each
Committee to consist of two or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any Committee, who may replace any absent or disqualified member at any meeting
of the Committee. Any such Committee, to the extent provided in the resolution,
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it. Such
Committee or Committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
SECTION 2. Procedures, Quorum and Manner of Acting. Each Committee
---------------------------------------
shall fix its own rules of procedure, and shall meet where and as provided by
such rules or by resolution of the Board of Directors. Except as otherwise
provided by law, the presence of a majority of the then appointed members of a
Committee shall constitute a quorum for the transaction of business by that
Committee, and in every case where a quorum is present the affirmative vote of a
majority of the members of the Committee present shall be the act of the
Committee. Each Committee shall keep minutes of its proceedings, and actions
taken by a Committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent. Any action required or
-------------------------
permitted to be taken at any meeting of any Committee of the Board of Directors
may be taken without a meeting if all the members of the Committee consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Committee.
SECTION 4. Electronic Communication. Any member or members of a
------------------------
Committee of the Board of Directors may participate in a meeting of a Committee
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear and speak to each other.
SECTION 5. Termination. In the event any person shall cease to be a
-----------
director of the Corporation, such person shall simultaneously therewith cease to
be a member of any Committee appointed by the Board of Directors.
ARTICLE IV
Officers
--------
SECTION 1. Election and Qualifications. The Board of Directors at
---------------------------
its first meeting held after each annual meeting of Stockholders shall elect the
officers of the Corporation, which shall include a President and a Secretary,
and may include, by election or appointment, one or more Vice-Presidents (any
one or more of whom may be given an
<PAGE>
7
additional designation of rank or function), a Treasurer and such Assistant
Secretaries, such Assistant Treasurers and such other officers as the Board of
Directors may from time to time deem proper. Each officer shall have such
powers and duties as may be prescribed by these By-Laws and as may be assigned
by the Board of Directors or the President. Any two or more offices may be held
by the same person.
SECTION 2. Term of Office and Remuneration. The term of office of
-------------------------------
all officers shall be one year and until their respective successors have been
elected and qualified, but any officer may be removed from office, either with
or without cause, at any time by the Board of Directors. Any vacancy in any
office arising from any cause may be filled for the unexpired portion of the
term by the Board of Directors. The remuneration of all officers of the
Corporation may be fixed by the Board of Directors or in such manner as the
Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any time
--------------------
upon written notice to the Corporation and such resignation shall take effect
upon receipt thereof by the President or Secretary, unless otherwise specified
in the resignation. Any officer shall be subject to removal, with or without
cause, at any time by vote of a majority of the entire Board of Directors.
SECTION 4. Powers and Duties of Officers. (a) The Chairman of the
-----------------------------
Board of Directors, if there be one, shall preside at all meetings of the Board
of Directors and shall have such other powers and duties as may from time to
time be assigned by the Board of Directors.
(b) The President shall be the chief executive officer of the
Corporation and shall preside at all meetings of the Stockholders and, if there
is no Chairman, of the Board of Directors and shall have general management of
and supervisory authority over the property, business and affairs of the
Corporation and its other officers. The President may execute and deliver in
the name of the Corporation powers of attorney, contracts, bonds and other
obligations and instruments, and shall have such other authority and perform
such other duties as from time to time may be assigned by the Board of
Directors. The President shall see that all orders and resolutions of the Board
of Directors are carried into effect and shall perform such additional duties
that usually pertain to this office.
(c) A Vice President may execute and deliver in the name of the
Corporation powers of attorney, contracts, bonds and other obligations and
instruments pertaining to the regular course of such Vice President's duties,
and shall have such other authority and perform such other duties as from time
to time may be assigned by the Board of Directors or the President.
(d) The Treasurer shall in general have all duties and authority
incident to the position of Treasurer and such other duties and authority as may
be assigned by the Board of Directors or the President. The Treasurer shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as
<PAGE>
8
may be designated by or at the direction of the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors or the President, and shall render, upon request, an account
of all such transactions.
(e) The Secretary shall in general have all the duties and authority
incident to the position of Secretary and such other duties and authority as may
be assigned by the Board of Directors or the President. The Secretary shall
attend all meetings of the Board of Directors and all meetings of Stockholders
and record all the proceedings thereat in a book or books to be kept for that
purpose. The Secretary shall give, or cause to be given, notice of all meetings
of the Stockholders and special meetings of the Board of Directors. The
Secretary shall have custody of the seal of the Corporation and any officer of
the Corporation shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by the signature of the
Secretary or any other officer.
(f) Any assistant officer shall have such duties and authority as the
officer such assistant officer assists and, in addition, such other duties and
authority as the Board of Directors or President shall from time to time assign.
ARTICLE V
Contracts, Etc.
--------------
SECTION 1. Contracts. The Board of Directors may authorize any
---------
person or persons, in the name and on behalf of the Corporation, to enter into
or execute and deliver any and all deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or confined to
specific instances.
SECTION 2. Proxies; Powers of Attorney; Other Instruments. (a) The
----------------------------------------------
Chairman, the President, any Vice President, the Treasurer or any other person
designated by any of them shall have the power and authority to execute and
deliver proxies, powers of attorney and other instruments on behalf of the
Corporation in connection with the execution of contracts, the purchase of real
or personal property, the rights and powers incident to the ownership of stock
by the Corporation and such other situations as the Chairman, the President,
such Vice President or the Treasurer shall approve, such approval to be
conclusively evidenced by the execution of such proxy, power of attorney or
other instrument on behalf of the Corporation.
(b) The Chairman, the President, any Vice President, the Treasurer or
any other person authorized by proxy or power of attorney executed and delivered
by any of them on behalf of the Corporation may attend and vote at any meeting
of Stockholders of any company in which the Corporation may hold stock, and may
exercise on behalf of the Corporation any and all of the rights and powers
incident to the ownership of such stock at any such meeting, or otherwise as
specified in the proxy or power of attorney so authorizing any such person. The
Board of Directors, from time to time, may confer like powers upon any other
person.
<PAGE>
9
ARTICLE VI
Books and Records
-----------------
SECTION 1. Location. The books and records of the Corporation may be
--------
kept at such place or places within or outside the State of Delaware as the
Board of Directors or the respective officers in charge thereof may from time to
time determine. The record books containing the names and addresses of all
Stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the
Secretary as prescribed in the By-Laws or by such officer or agent as shall be
designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all
-------------------------
other corporate notices may be delivered personally or mailed to each
Stockholder at the Stockholder's address as it appears on the records of the
Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of Record.
-------------------------------------------------------
(a) In order that the Corporation may determine the Stockholders entitled to
notice of or to vote at any meeting of Stockholders or any adjournment thereof,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date shall not be more than 60 days nor
less than 10 days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining Stockholders entitled
to notice of or to vote at a meeting of Stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of Stockholders of record entitled
to notice of or to vote at a meeting of Stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the Stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining Stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of Stockholders are recorded.
Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors
is required by law, the record date for determining Stockholders entitled to
consent
<PAGE>
10
to corporate action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action.
(c) In order that the Corporation may determine the Stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the Stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action not contemplated by paragraph (a) or (b) of this Section 3, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted and which
record date shall be not more than 60 days prior to such action. If no record
date is fixed, the record date for determining Stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
ARTICLE VII
Certificates Representing Stock
-------------------------------
SECTION 1. Certificates; Signatures. The shares of the Corporation
------------------------
shall be represented by certificates, provided that the Board of Directors of
the Corporation may provide by resolution or resolutions that some or all of any
or all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate, signed by or in the name of the Corporation by
the Chairman or Vice-Chairman of the Board of Directors, or the President or
Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, representing the number of shares
registered in certificate form. Any and all signatures on any such certificate
may be facsimiles. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
The name of the holder of record of the shares represented thereby, with the
number of such shares and the date of issue, shall be entered on the books of
the Corporation. The Board of Directors shall have power and authority to make
all such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the
Corporation.
SECTION 2. Transfers of Stock. Upon compliance with provisions
------------------
restricting the transfer or registration of transfer of shares of stock, if any,
shares of capital stock shall be transferable on the books of the Corporation
only by the holder of record thereof in person, or by duly authorized attorney,
upon surrender and cancellation of certificates for a like number of shares,
properly endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall not be
-----------------
required to, issue certificates for fractions of a share where necessary to
effect authorized
<PAGE>
11
transactions, or the Corporation may pay in cash the fair value of fractions of
a share as of the time when those entitled to receive such fractions are
determined, or it may issue scrip in registered or bearer form over the manual
or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not
entitle the holder to any rights of a Stockholder except as therein provided.
SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation
--------------------------------------
may issue a new certificate of stock in place of any certificate, theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the Board of
Directors may require the owner of any lost, stolen or destroyed certificate, or
his legal representative, to give the Corporation a bond sufficient to indemnify
the Corporation against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
any such new certificate.
ARTICLE VIII
Dividends
---------
Subject to the provisions of applicable law and the Certificate of
Incorporation, the Board of Directors shall have full power to determine whether
any, and, if any, what part of any, funds legally available for the payment of
dividends shall be declared as dividends and paid to Stockholders; the division
of the whole or any part of such funds of the Corporation shall rest wholly
within the lawful discretion of the Board of Directors, and it shall not be
required at any time, against such discretion, to divide or pay any part of such
funds among or to the Stockholders as dividends or otherwise; and before payment
of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve. Stockholders shall receive
dividends pro rata in proportion to the number of shares of Common Stock
respectively held by them. A holder of Common Stock shall be deemed to share
pro rata in all dividends declared by the Board of Directors within the meaning
of the preceding sentence if such Stockholder receives assets (whether
consisting of cash, securities, real property, equipment, inventory or other
assets) the fair market value of which is in the same proportion to the fair
market value of the total assets of the Corporation available for distribution
as a dividend as the number of shares of Common Stock held by such holder of
Common Stock is to the total number of issued and outstanding shares of Common
Stock of the Corporation. A Stockholder shall not have the right to receive a
pro rata share of each or any such asset available for distribution as a
dividend; however, the Corporation shall not be prohibited hereby for making a
pro rata distribution of each or any such asset available for distribution as a
dividend. The fair market value of any and all assets of the Corporation
distributed as a dividend shall be determined in the sole discretion of the
Corporation's Board of Directors.
<PAGE>
12
ARTICLE IX
Ratification
------------
Any transaction, questioned in any lawsuit on the ground of lack of
authority, defective or irregular execution, adverse interest of director,
officer or Stockholder, non-disclosure, miscomputation, or the application of
improper principles or practices of accounting, may be ratified before or after
judgment, by the Board of Directors or by the Stockholders, and if so ratified
shall have the same force and effect as if the questioned transaction had been
originally duly authorized. Such ratification shall be binding upon the
Corporation and its Stockholders and shall constitute a bar to any claim or
execution of any judgment in respect of such questioned transaction.
ARTICLE X
Corporate Seal
--------------
The corporate seal shall be in either of the following forms: (a) the
letters "L.S." or (b) a circular inscription which contains the words "Corporate
Seal" and such additional information as the officer inscribing such seal shall
determine in such officer's sole discretion. The corporate seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise displayed or it may be manually inscribed.
ARTICLE XI
Fiscal Year
-----------
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board of Directors. Unless otherwise fixed by the
Board of Directors, the fiscal year of the Corporation shall end on the Saturday
closest to September 30.
ARTICLE XII
Waiver of Notice
----------------
Whenever notice is required to be given by these By-Laws or by the
Certificate of Incorporation or by law, a written waiver thereof, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XIII
Amendments
----------
The Board of Directors shall have power to adopt, amend or repeal By-
Laws. By-Laws adopted by the Board of Directors may be repealed or changed, and
new By-Laws
<PAGE>
13
made, by the Stockholders, and the Stockholders may prescribe that any By-Law
made by them shall not be altered, amended or repealed by the Board of
Directors.
ARTICLE XIV
Indemnification
---------------
SECTION 1. Power To Indemnify In Actions, Suits Or Proceedings Other
---------------------------------------------------------
Than Those By Or In the Right Of The Corporation. Subject to Section 3 of this
- ------------------------------------------------
Article XIV, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' and
other professionals' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe the conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
----
contendere or its equivalent, shall not, of itself, create a presumption that
- ----------
the person did not act in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
conduct was unlawful.
SECTION 2. Power To Indemnify In Actions, Suits Or Proceedings By Or
---------------------------------------------------------
In The Right Of The Corporation. Subject to Section 3 of this Article XIV, the
- -------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' and
other professionals' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Corporation except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
<PAGE>
14
SECTION 3. Authorization of Indemnification. Any indemnification
--------------------------------
under this Article XIV (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article XIV, as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable,
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or (iii) if the Board of Directors so directs, by the
Stockholders. To the extent, however, that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' and other professionals' fees) actually and
reasonably incurred by such person in connection therewith, without the
necessity of authorization in the specific case.
SECTION 4. Good Faith Defined. For purposes of any determination
------------------
under Section 3 of this Article XIV, a person shall be deemed to have acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe the conduct was unlawful,
if the action is based on (a) the records or books of account of the Corporation
or another enterprise (as defined below in this Section 4), or on information
supplied to such person by the officers of the Corporation or another enterprise
in the course of their duties, unless such person had reasonable cause to
believe that reliance thereon would not be justifiable, or on (b) the advice of
legal counsel for the Corporation or another enterprise, or on information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant, independent financial adviser,
appraiser or other expert, as to matters reasonably believed to be within such
other person's professional or expert competence. The term "another enterprise"
as used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent.
The provisions of this Section 4 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article XIV,
as the case may be.
SECTION 5. Indemnification By A Court. Notwithstanding any contrary
--------------------------
determination in the specific case under Section 3 of this Article XIV, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article XIV. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article XIV, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the
filing of such application.
<PAGE>
15
SECTION 6. Expenses Payable In Advance. Expenses (including
---------------------------
attorneys' and other professionals' fees) incurred by an officer or director in
defending any threatened or pending civil, criminal, administrative or
investigative action, suit or proceeding may, but shall not be required to, be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such director or
officer, to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article XIV. Such expenses (including attorneys' and other professionals'
fees) incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 7. Non-exclusivity and Survival of Indemnification. The
-----------------------------------------------
indemnification and advancement of expenses provided by or granted pursuant to
this Article XIV shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of Stockholders or of disinterested
directors, or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article XIV
(as distinguished from advancement of funds pursuant to Section 6 of this
Article XIV) shall be made to the fullest extent permitted by law. The
provisions of this Article XIV shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 and 2 of this
Article XIV but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Delaware, or
otherwise. The indemnification provided by this Article XIV shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors, administrators and other
comparable legal representatives of such person. The rights conferred in this
Article XIV shall be enforceable as contract rights, and shall continue to exist
after any rescission or restrictive modification hereof with respect to events
occurring prior thereto.
SECTION 8. Meaning of "other enterprises" in connection with Employee
----------------------------------------------------------
Benefit Plans, etc. For purposes of this Article XIV (including Sections 1, 2,
- -------------------
4 and 9 hereof), references to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who has
acted in good faith and in a manner reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Article XIV.
SECTION 9. Insurance. The Corporation may, but shall not be required
---------
to, purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture,
<PAGE>
EXHIBIT 3.95
CERTIFICATE OF INCORPORATION
OF
SENECA COAL COMPANY
* * * * *
1. The name of the corporation is
SENECA COAL COMPANY
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Low of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is one thousand (1,000) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to Ten Thousand
Dollars ($10,000.00).
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5A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
W. H. Carson 1300 S. Yale
Flagstaff, AZ 86001
G. L. Melvin 1300 S. Yale
Flagstaff, AZ 86001
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
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To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The by-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member, Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or by-laws, expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
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When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in whole
or in part of money or properly including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware
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General Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit.
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WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 3rd day
of January, 1994.
/s/ M. A. Brzoska
--------------------------------------
Incorporator
/s/ K. A. Widdoes
--------------------------------------
Incorporator
/s/ L. J. Vitalo
--------------------------------------
Incorporator
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EXHIBIT 3.96
SENECA COAL COMPANY
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B Y - L A W S
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ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Flagstaff, State of Arizona, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1994, shall be held on the 15th day of May if not a legal holiday, and if a
legal holiday, then on the
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next secular day following, at 10:00 A.M., or at such other date and time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting, at which they shall elect by a plurality vote a board
of directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a
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majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which
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by express provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than two (2) nor more than five (5). The first board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be
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determined by resolution of the board of directors or by the stockholders at the
annual meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
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Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on zero (0) days' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present
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thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
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Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
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COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
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Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
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THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be
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given, notice of all meetings of the stockholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed by
the board of directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of
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directors so requires, an account of all his transactions as treasurer and of
the financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the
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information required to be set forth or stated on certificates pursuant to
Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
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TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
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REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is
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18
conferred upon the board of directors by the certificate of incorporation at any
regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal by-
laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.97
CERTIFICATE OF INCORPORATION
OF
SENTRY MINING COMPANY
* * * * *
1. The name of the corporation is:
SENTRY MINING COMPANY
2. The address of its registered office in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of common stock which the corporation
shall have authority to issue is one hundred (100) and the par value of each of
such shares is Ten Dollars ($10.00) amounting in the aggregate to One Thousand
Dollars ($l,000.00).
<PAGE>
2
5A. The name and mailing address of each incorporator
is as follows:
NAME MAILING ADDRESS
---- ---------------
J. J. Masters 906 Olive Street
St. Louis, Missouri 63101
M. S. Kinkead 906 Olive Street
St. Louis, Missouri 63101
S. A. Gramlich 906 Olive Street
St. Louis, Missouri 63101
5B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
Francis L. Barkofske 301 N. Memorial Drive
St. Louis, Missouri 63102
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
8. No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach or fiduciary duty as a director;
provided, however, this provision shall not eliminate or limit the liability of
a director: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
<PAGE>
3
law; (iii) under Section 174 of the Delaware Corporation Law; or (iv) for any
transaction from which the director derived an improper personal benefit.
9. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
10. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this 26th day of
April, 1989.
/s/ J. J. Masters
-------------------------------------
J. J. Masters, Incorporator
/s/ M. S. Kinkead
-------------------------------------
M. S. Kinkead, Incorporator
/s/ S.A. Gramlich
-------------------------------------
S.A. Gramlich, Incorporator
<PAGE>
EXHIBIT 3.98
SENTRY MINING COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
<PAGE>
2
Section 2. Annual meetings of stockholders, commencing with the year
1990, shall be held on the second Tuesday in April if not a legal holiday, and
if a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a
<PAGE>
3
majority of the board of directors, or at the request in writing of stockholders
owning a majority in amount of the entire capital stock of the corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy
<PAGE>
4
shall decide any question brought before such meeting, unless the question is
one upon which by express provision of the statutes or of the certificate of
incorporation, a different vote is required in which case such express provision
shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
<PAGE>
5
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than six (6). The first board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and
<PAGE>
6
do all such lawful acts and things as are not by statute or by the certificate
of incorporation or by these by-laws directed or required to be exercised or
done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case
<PAGE>
7
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
<PAGE>
8
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders
<PAGE>
9
a dissolution of the corporation or a revocation of a dissolution, or amending
the by-laws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
<PAGE>
10
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
<PAGE>
11
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be
<PAGE>
12
expressly delegated by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by
<PAGE>
13
the signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation and
to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of
<PAGE>
14
his office and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
<PAGE>
15
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
<PAGE>
16
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
<PAGE>
17
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
18
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. (a) The Company shall, to the fullest extent permitted
by applicable law, indemnify any person (and the heirs, executors and
administrators thereof)
<PAGE>
19
who was or is made, or threatened to be made, a party to an action, suit or
proceeding, whether civil, criminal, administrative or investigative, whether
involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is serving or served in
any capacity at the request of the Company, by reason of the fact that he, his
testator or intestate is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, incurred therein or in any appeal thereof.
(b) The Company shall indemnify other persons and reimburse the
expenses thereof, to the extent required by applicable law, and may indemnify
any other person to whom the Company is permitted to provide indemnification or
the advancement of expenses, whether pursuant to rights granted pursuant to, or
provided by, the Delaware General Corporation Law or otherwise.
(c) The Company shall, from time to time, reimburse or advance to any
person referred to in paragraph (a) the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in paragraph (a) above, upon receipt of a written
undertaking by or on behalf of such person to
<PAGE>
20
repay such amount(s) if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his acts were committed in bad faith or
were the result of active and deliberate dishonesty and, in either case, were
material to the cause of action so adjudicated, (ii) he personally gained in
fact a financial profit or other advantage to which he was not legally entitled,
or (iii) his conduct was otherwise of a character such that Delaware law would
require that such amount(s) be repaid.
(d) Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred in clause (i), in any capacity shall be
deemed to be doing so at the request of the Company.
(e) Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article may elect
to have the right to indemnification (or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action, suit or proceeding, to the extent
permitted by applicable law, or on the basis of the applicable law in effect at
the time indemnification is sought.
(f) The right to be indemnified or to the reimbursement or advancement
of expenses pursuant to this Article (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
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21
(g) If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the company (including its Board
of Directors, independent legal counsel, or its stockholders) that the claimant
is not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of
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22
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.99
CERTIFICATE OF INCORPORATION
OF
SNOWBERRY LAND COMPANY
* * * * *
1. The name of the corporation is Snowberry Land Company.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the city of Wilmington,
County of New Castle. The name of its registered agent at such address is
the Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware .
4. The total number of shares of stock which the corporation shall
have authority to issue is Ten (10) and the par value of each of such
shares in One hundred Dollars and No Cents ($100.00) amounting in the
aggregate to One Thousand Dollars and No Cents ($1,000.00).
<PAGE>
2
5. The board of directors is authorized to make, alter or repeal the
by-laws of the corporation. Election of directors need not be by written
ballot.
6. The name and mailing address of the sole incorporator is:
D. M. Dembkowski
Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholder, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction form which the
director derived any improper personal benefit.
8. The corporation shall indemnity its officers, directors,
employees and agents to the extent permitted by the General Corporation Law
of Delaware.
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3
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, hereby declaring and
certifying that this is my act and deed and the facts herein stated are
true, and accordingly have hereunto set my hand this 18th day of August,
1995.
/s/ D.M. Dembkowski
---------------------------
D.M. Dembkowski
Sole Incorporator
<PAGE>
EXHIBIT 3.100
SNOWBERRY LAND COMPANY
* * * * *
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of St. Louis, State of Missouri, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1996, shall be held in the month of May on such day and at such time as shall be
stated in the
<PAGE>
2
notice of the meeting, or at such other date and time as shall be designated
from time to time by the board of directors and stated in the notice of the
meeting, at which they shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a
<PAGE>
3
majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which
<PAGE>
4
by express provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
At all elections of directors of the corporation each stockholder
having voting power shall be entitled to exercise the right of cumulative voting
as provided in the certificate of incorporation.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
<PAGE>
5
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than three (3). The first board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and
<PAGE>
6
do all such lawful acts and things as are not by statute or by the certificate
of incorporation or by these by-laws directed or required to be exercised or
done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on zero (0) days' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
<PAGE>
7
Section 8. At all meetings of the board two directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as
<PAGE>
8
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such
<PAGE>
9
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on
<PAGE>
10
the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
<PAGE>
11
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive of fleer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
12
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the
<PAGE>
13
name and to the credit of the corporation in such depositories as may be
designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
<PAGE>
14
ARTICLE VI
CERTIFICATES SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Upon the face or back of each stock certificate issued to represent
any partly paid shares, or upon the books and records of the corporation in the
case of uncertificated partly paid shares, shall be set forth the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations restrictions of such
preferences and/or rights.
<PAGE>
15
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that
<PAGE>
16
may be made against the corporation with respect to the certificate alleged to
have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
<PAGE>
17
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
18
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is
<PAGE>
19
conferred upon the board of directors by the certificate of incorporation at any
regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal by-
laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 3.101
READ CAREFULLY THE INSTRUCTIONS
-------------------------------
AGREEMENT OF INCORPORATION
(See Arts. 2-9, both incl., of c. 31, also c. 33, Code,
for provisions regarding certain corporations.)
I. The undersigned agree to become a corporation by the name of (1)
LOW VOLATILE COALS, INC.
(1) The name of the corporation shall contain one of the words
"association," "company," "corporation," "club," "incorporated," "society,"
"union," or "syndicate," or one of the abbreviations, "co." "inc."; but no name
shall be assumed already in use by another existing corporation of this State,
or by a foreign corporation lawfully doing business in this State, or so similar
thereto, in the opinion of the Secretary of State, as to lead to confusion.
II. The principal Office or Place of Business of said Corporation will be
located at (1) No. Rt. 87, Box 72, in the (2) village of Shady Springs, West
Virginia in the County of Raleigh and State of West Virginia. Its chief works
will be located (3) in Fireco, West Virginia.
(1) Insert number and name of street if in a city having street numbers,
if not, strike out.
(2) Erase the word "city," "town" or "village," leaving the one required.
(3) Give location of chief works; if at the same place as principal office
or place of business, say "Its chief works will be located at the same place."
If there be no chief works, say "Said corporation will have no chief works." If
chief works are in West Virginia, give name of magisterial district and county
in which they are or will be located. In case of oil well, gas well, or
prospecting companies, and other like companies, where the chief works will be
shifting, and in cases of companies that will have chief works, or works at
different points in this State, say "chief works will be located in
______________ district, in __________ county. State of West Virginia and
elsewhere in said State." If chief works are not to be in West Virginia, then
it is only necessary to give the name of the State or county in which they will
be located.
III. The objects for which this Corporation is formed are as follows:
(Please type double space if not sufficient room here to cover this point add
one or more sheets of paper of this size.)
1. To mine, develop, work and operate coal mines, coal lands and coal
property, and to carry on the business of coal mining and processing in all of
its branches and all methods of production now known or hereafter developed,
including, but not limited to, deep mining, punch mining, strip mining and auger
mining, and the manufacturing of all coal products and by-products.
<PAGE>
2
2. To acquire, purchase, lease, hold, operate, mortgage, exchange and
sell, and trade and deal in, real property of every kind, including, but not
limited to, coal lands.
3. To engage in the business of buying and selling coal and products
of coal, and to sell on commission and to act as broker in the sale or purchase
of coal.
4. To purchase, lease or otherwise acquire such personal property,
rights, easements, permits and franchises as may be lawfully purchased, leased
or acquired.
5. To make, perform and carry out contracts of every kind pertaining
to the purposes of this corporation, and for any lawful purpose necessary and
expedient to carry out the purposes of this corporation.
6. To borrow and raise money upon bonds, notes and other negotiable
or transferable instruments, and to secure the same by deeds of trust, pledges
or otherwise.
7. To do all and everything necessary, suitable and proper for the
accomplishment of any of the purposes, or the furtherance of any of the powers
hereinbefore set forth, either alone or in association with other corporations,
firms, or individuals.
8. To do or perform any and all other lawful acts in furtherance of
any of the aforesaid corporate purposes, or any other lawful purpose which the
said corporation may elect to undertake.
<PAGE>
3
WE, THE UNDERSIGNED, for the purpose of forming a Corporation under
the laws of the State of West Virginia do make and file this Agreement; and we
have accordingly hereunto set our respective hands this 23rd day of April, 1962.
All the incorporators must sign below.
/s/Lewis Meadows
--------------------------------------
Lewis Meadows
/s/Helen Meadows
--------------------------------------
Helen Meadows
/s/Charles Meadows
--------------------------------------
Charles Meadows
<PAGE>
4
CERTIFICATES
The agreement must be acknowledged by all the incorporators who signed
it, before the president of a county court, a justice of the peace, notary,
recorder, prothonotary or clerk of any court, within the United States, etc.,
and such acknowledgements certified by the officer before whom they were made,
and his seal affixed if not in West Virginia. Acknowledgements taken in a
foreign country must be certified under the official seal of any ambassador,
minister plenipotentiary, minister resident, charge d'affaires, consul general,
consul, deputy consul, etc., appointed by the government of the United States to
any foreign town or corporation therein, etc. -- Code, c. 39, Art. 1, (S) 3.]
State of West Virginia County of Raleigh, to wit:
I, _______________________, a Notary Public in and for the County and
State aforesaid, hereby certify that Lewis Meadows, Helen Meadows and Charles L.
Meadows
(Names of all incorporators must be inserted in this space by official taking
acknowledgements)
whose names are signed to the foregoing agreement bearing date on the 23rd day
of April, 1962, this day personally appeared before me in my said county and
severally acknowledged their signature to the same.
Given under my hand and official seal this 23 day of April, 1962.
[Executed]
----------------------
Notary Public
My Commission expires on the 29 day of November, 1972.
IV. The amount of the total authorized capital stock of said corporation
shall be Five Thousand ($5,000.00) dollars, which shall be divided into 50
shares of the par value of One Hundred ($100.00) dollars each.
Use space below for statement as to stock without par value, or where
more than one class of stock is to be issued, or one or more series within a
class, and as to any designations, powers, etc., as provided in subdivision (d),
(S) 6. art 1. c. 31., Code.
In the case of a corporation not organized for profit and not
authorized to issue capital stock, a statement to that effect shall be set forth
together with a statement as to the conditions of membership. Code 33-1-6(d).
<PAGE>
5
The amount of capital stock with which it will commence business is
One Thousand Dollars ($1,000.00) (shall not be less than one thousand dollars)
being Ten (10) shares One Hundred Dollars ($100.00) each.
V. The names and post office addresses of the incorporators and the number
of shares of stock subscribed for by each are as follows:
(The number of incorporators to be not less than
three as to stock, nor less than five as to nonstock corporations.)
=============================================================================
NO. OF
SHARES TOTAL
P.O. NO. OF SHARES PREFERRED NO. OF
NAME(5) ADDRESS (6) COMMON STOCK STOCK SHARES
- -----------------------------------------------------------------------------
Lewis Shady 8 8
Meadows Springs,
West Virginia
- -----------------------------------------------------------------------------
Helen Shady 1 1
Meadows Springs,
West Virginia
- -----------------------------------------------------------------------------
Charles Shady 1 1
L. Springs,
Meadows West Virginia
- -----------------------------------------------------------------------------
VI. The existence of this corporation is to be perpetual.
VII. For any additional provisions desired and which are authorized by law,
see Art. 1, c. 31, Code. Also set forth number of acres of land desired to be
held in West Virginia, if such number be above 10,100 acres, pursuant to (S) 75,
Art. 12, c. 11 Code. If more space is required, add one or more sheets of paper
this size.
<PAGE>
6
I, Lewis Meadows, President of "Low Volatile Coals, Inc.", a
corporation created, organized and existing under and by virtue of the laws of
the State of West Virginia, do hereby certify to the Secretary of State of the
State of West Virginia that at a special meeting of the stockholders of Low
Volatile Coals, Inc., duly held at the law offices of Sayre and Sayre, Room 613
Raleigh County Bank Building, Beckley, West Virginia, on the 5th day of May,
1965, at 7:30 o'clock, P.M., pursuant to a waiver of notice of said meeting,
signed by all the stockholders of this corporation, as provided by the bylaws of
the corporation and the laws of the State of West Virginia, at which meeting all
of the issued and outstanding shares of the common capital stock of said
corporation entitled to vote at such meeting was represented in person, the
following resolutions were duly and regularly adopted and passed, to wit:
"RESOLVED, That the authorized capital of Low Volatile Coals,
Inc. be increased from fifty (50) shares of the par value of One
Hundred Dollars ($100.00) each to four thousand (4000) shares of the
par value of $100.00 each, so that the authorized capital stock of
said corporation shall be Four Hundred Thousand Dollars
($400,000.00)."
"RESOLVED, That the principal office and place of business of Low
Volatile Coals, Inc., a corporation, be moved and changed from Route
87, Box 72, Shady Springs, Raleigh County, West Virginia, to the
Office Building of Vecellio & Grogan Incorporated, on the Crab Orchard
Road, Beckley, Raleigh County, West Virginia."
"RESOLVED, That the charter of this corporation with respect to
the objects for which this corporation is formed be amended to include
the following:
"To purchase, acquire, held and dispose of stocks, bonds and
other obligations, including judgments, interest, accounts or debts of
any corporation, domestic or foreign, owning or controlling any
articles which are or might be or become useful in the business of
this corporation, and to purchase, acquire, held and dispose of
stocks, bonds, or other obligations, including
<PAGE>
7
judgments, interests, accounts or debts of any corporation, domestic
or foreign, engaged in a business similar to that of this
corporation.'"
Given under my hand as President of Low Volatile Coals, Inc. and the
corporate seal of said corporation this the 5th day of May, 1965.
/s/Lewis Meadows
-------------------------------------
President of Low Volatile Coals, Inc.
(Corporate Seal)
<PAGE>
8
THIS AGREEMENT OF MERGER, dated the 6th day of October, 1967, by and
between LOW VOLATILE COALS, INC., a corporation organized and existing under the
laws of the State of West Virginia, and the undersigned Directors thereof,
parties of the first part, and STERLING SMOKELESS COAL COMPANY, a corporation
organized and existing under the laws of the State of West Virginia, and the
undersigned Directors thereof, parties of the second part;
WHEREAS, Low Volatile Coals, Inc. is a corporation duly organized and
existing under the laws of the State of West Virginia, having been incorporated
on the 25th day of April, 1962, and has an authorized capital stock of Four
Hundred Thousand Dollars ($400,000.00), consisting of four thousand (4000)
shares of common stock of the par value of One Hundred Dollars ($100.00) each,
all of which stock is issued and outstanding; and
WHEREAS, Sterling Smokeless Coal Company is a corporation duly
organized and existing under the laws of the State of West Virginia, having been
incorporated on the 18th day of November, 1926, and has an authorized capital
stock of Two Hundred Eighty Thousand Dollars ($280,000.00), consisting of
twenty-eight hundred (2800) shares of common stock of the par value of One
Hundred Dollars ($100.00 each, all of which stock is issued and outstanding; and
WHEREAS, the board of directors of each of said corporations deems it
advisable for the general welfare and advantage of said corporations, and their
respective stockholders, that Sterling Smokeless Coal Company merge with and
into Low Volatile Coals, Inc.; and that Low Volatile Coals, Inc. merge into
itself Sterling Smokeless Coal Company; and
<PAGE>
9
WHEREAS, the board of directors of each of said constituent
corporations deems it for the best interests and welfare of both constituent
corporations that the name of the surviving corporation, Low Volatile Coals,
Inc., be changed from Low Volatile Coals, Inc. to Sterling Smokeless Coal
Company: and
WHEREAS, the board of directors of each of said constituent
corporations has determined that the principal office of the surviving
corporation, with the changed name from Low Volatile Coals, Inc. to Sterling
Smokeless Coal Company, will be in the Office Building of Vecellio & Grogan
Incorporated, on the Crab Orchard Road, Beckley, Raleigh County, West Virginia;
and
WHEREAS, the board of directors of each of said constituent
corporations has determined that the chief works of the surviving corporation
with the changed name from Low Volatile Coals, Inc. to Sterling Smokeless Coal
Company will be located at Whitby, Raleigh County, West Virginia; and
WHEREAS, the board of directors of each of the constituent
corporations has approved this merger;
NOW, THEREFORE, in consideration of the premises and the payment of
the sum of One Dollar ($1.00) by each of the parties to the other in hand paid,
and of the mutual provisions, conditions, covenants and grants herein contained,
the parties hereto hereby agree, in accordance with the provisions of the Code
of West Virginia, Chapter 31, Article 1, Section 63, that Low Volatile Coals,
Inc. hereby merges into itself Sterling Smokeless Coal Company, and, likewise,
said Sterling Smokeless Coal Company shall be, and hereby is, merged into Low
Volatile Coals, Inc. with Low VolatiLe Coals, Inc. as the surviving corporation
(as hereinafter defined). Sterling Smokeless Coal Company and Low Volatile
<PAGE>
10
Coals, Inc. are hereafter sometimes referred to as the "Constituent
Corporations"; the corporation which shall survive the merger is sometimes
hereinafter referred to as the "Surviving Corporations"; and the date on which
the Constituent Corporations shall so become said single corporation is
hereinafter sometimes referred to as the "effective date of this Agreement". It
is hereby agreed by and between the parties hereto that the terms and conditions
of said merger and the mode of carrying the same into effect shall be the same
as those set forth in the following Articles FIRST to FIFTEENTH inclusive.
FIRST: Except as herein otherwise specifically set forth, the
identify, existence, objects, powers, rights, privileges, purposes, franchises
and immunities of Low Volatile Coals, Inc. shall continue unaffected and
unimpaired by the merger, and the corporate identity, objects, powers, rights,
privileges, purposes, franchises and immunities of Sterling Smokeless Coal
Company shall be merged into Low Volatile Coals, Inc., and Low Volatile Coals,
Inc. shall be fully vested therewith. The organization of Sterling Smokeless
Coal Company, except insofar as it may be continued by statute, shall cease as
soon as this Agreement shall become effective, and thereupon Low Volatile Coals,
Inc. and Sterling Smokeless Coal Company shall become a single corporation, to
wit, Low Volatile Coals, Inc., one of the parties hereto, which shall survive
such merger and shall continue as the Surviving Corporation to exist under and
be governed by the laws of the State of West Virginia.
SECOND: The name of the Surviving Corporation, Low Volatile Coals,
Inc., a corporation, shall be changed from Low Volatile Coals, Inc., a
corporation, to Sterling Smokeless Coal Company, a corporation.
THIRD: The principal office of the Surviving Corporation with the
changed name from Low Volatile Coals, Inc. to Sterling Smokeless Coal Company,
will be in the
<PAGE>
11
Office Building of Vecellio & Grogan Incorporated, on the Crab Orchard Road,
Beckley, Raleigh County, West Virginia.
FOURTH: The chief works of the Surviving Corporation with the changed
name from Low Volatile Coals, Inc. to Sterling Smokeless Coal Company will be
located at Whitby, Raleigh County, West Virginia.
FIFTH: The objects, powers, rights, privileges and purposes of the
Surviving Corporation, with such change in name, shall include the following:
To purchase, own, hold, lease, sublease, sell, mortgage, convey,
and otherwise acquire and dispose of, coal mines, coal lands, coal
properties, oil, gas and other minerals and mining rights, and other
real estate; to own, operate and conduct deep coal mines, strip coal
mines, and to do a general coal mining business; to engage in the
mining of coal by all lawful methods of mining coal, including strip
mining, auger mining, web mining, punch mining, wagon mining, conveyor
mining, and all other methods for the mining and removal of coal; to
mine, prepare, distribute, sell and generally deal in coal and other
minerals and their by-products; to manufacture and sell coke and its
by-products; to act as agent and broker for coal and other fuel, and
to make contracts with individuals and corporations with reference to
handling and selling their coal, and on such terms as may be agreed
upon; to buy and sell merchandise at wholesale and retail and conduct
general retail merchandise stores, and otherwise trade in goods, wares
and merchandise of every class and description; to own, operate and
maintain all necessary tracks, sidetracks and tramroads as may be
necessary and convenient to carry on all business herein authorized;
to own, operate and maintain electrical lighting plant, machinery and
appliances and to purchase or otherwise acquire electrical current or
power from any manufacturer thereof for the purpose of carrying on the
several things or enterprises herein authorized; to buy, own, build,
operate, sell, lease, sublease, and otherwise acquire and dispose of
tipples, processing plants, storage silos, powder magazines, shops,
storehouses, warehouses, docks, piers and all buildings and structures
necessary to the carrying on such business as is herein authorized; to
buy, own, build, operate, sell, lease, sublease, and otherwise acquire
and dispose of tenement houses, dwelling houses, and all other
buildings and structures appurtenant thereto; and to do all things
generally that may be
<PAGE>
12
necessary or convenient in connection with the operation and conduct
of any of the aforesaid lines of business.
To purchase, own, hold, lease, sublease, sell, mortgage, convey,
and otherwise acquire and dispose of, oil and gas lands, and rights
and mining rights pertaining thereto; to own, develop, lease,
sublease, sell, dispose of, operate and conduct drilling operations
and all other works necessary for the exploration, production,
storage, distribution, transportation and sale of oil and gas and
their by-products; to lay and operate pipe lines, and to do all things
generally that may be necessary or convenient in connection with the
operation and conduct of any of the aforesaid lines of business.
To purchase, own, hold, lease, sublease, and sell timber and
timber lands, and to cut, log and manufacture into lumber and other
products of such timber and to buy and sell lumber and other products
of timber at wholesale and retail; to own, lease, construct and
operate railroads, tramroads, and all other roads, needful or
expedient to the business of the corporation; to acquire, own, sell,
lease, sublease and operate saw mills and planing mills, together with
all other kinds of machinery, equipment and appliances of every kind
and character for the manufacturing of timber, lumber and other
products therefrom, and to do all things generally that may be
necessary or convenient in connection with the manufacture of timber
into lumber and other products of timber, and the sale of the same,
and the transportation thereof to market.
To conduct and carry on the business of general contractors and
builders for the purpose of building, erecting, altering, repairing,
or doing any other work in connection with any and all classes of
buildings and improvements of any kind and nature whatsoever;
including the building, rebuilding, alteration, repairing or
improvement of public buildings, commercial buildings, hotels,
apartment houses, factories, warehouses, cold storage houses,
dwellings, works or constructions of every kind and description
whatsoever, including the locating, laying out and construction,
altering, repairing and maintenance of roads, turnpikes, railroads,
streets, avenues, docks, ships, sewers, septic tanks, sewerage
systems, bridges, wells, parks, swimming pools, athletic fields,
stadiums, airfields, recreation facilities, foundations, wells,
excavations, canals, street railways, mine tracks, power plants,
manufacturing plants, wholesale plants, water distribution plants,
reservoirs, aqueducts, artificial and natural gas distribution
systems, pipe
<PAGE>
13
lines, and generally in all classes of buildings, erections and works
of every kind and character, both public and private, or integral
parts thereof, and to have performed civil, mechanical and chemical
engineering and architectural work, including the preparation of plans
and specifications in expert work, as acting and consulting and
superintending engineers and architects, and generally to do and
perform any and all works as contractors and builders and with that
end in view to solicit, obtain, make, perform and carry out contracts
covering the contracting and building business and the work connected
therewith.
To purchase, own, hold, use, maintain, manage, operate, develop,
lease, sublease, sell, mortgage, exchange, improve, convey, and
otherwise acquire and dispose of, real estate and real property,
apartment houses, commercial buildings, office buildings, hotels,
factories, warehouses, cold storage houses, refrigeration locker
plants, grain elevators, filling stations, manufacturing plants,
wholesale plants, dwellings, buildings, works or constructions of
every kind and description whatsoever.
To purchase, own, hold, use, maintain, manage, operate, develop,
lease, sublease, sell, mortgage, exchange, improve, convey, and
otherwise acquire and dispose of, real and personal property, or any
interest or rights therein, together with any buildings and
improvements thereon, and all appurtenances, rights, privileges and
easements pertaining thereto, and any equipment necessary and
convenient for the use and enjoyment of the aforesaid purposes, and to
have surveyed and subdivided the real estate into lots, parks,
reservations, avenues, streets, and alleys, for the purpose of sale,
development, or otherwise, and to do and perform all things necessary
and convenient for the development and improvement of the same, for
residence, trade or business.
To transact a general real estate agency and brokerage business;
to collect rents, and in general to manage real property for others,
and to do all things necessary and convenient for the purposes of
conducting said businesses.
To conduct and carry on a general roofing, sheet metal, air-
conditioning, heating and plumbing, insulation, and weather stripping
business.
To conduct and carry on the business of manufacturing,
constructing, altering, repairing, setting, maintaining and servicing
all kinds of electrical machinery and electrical
<PAGE>
14
appliances; and to carry on the business of electricians, electrical
engineers and generally deal in all classes of electrical machinery
and electrical appliances.
To conduct and carry on the business of manufacturing,
constructing, altering, repairing, selling, maintaining, and servicing
all kinds of machinery and equipment of every kind and character; and
to carry on the business of machinists, mechanical engineers, and
generally deal in all classes of mechanical machinery and appliances
of every kind and character.
To manufacture, buy, sell, trade and deal in all and every kind
of material, product, manufactured or unmanufactured, iron, coal,
coke, steel, wood, brick, cement, granite, stone and other products
and building materials.
To acquire, own, develop, work, lease, sublease, mortgage, sell
and dispose of any mines, mining rights and metalliferous lands, rock
quarries, limestone deposits, sandstone deposits, sand deposits,
gravel deposits, clay deposits, topsoil, coal, oil and gas and mining
rights thereof, and all other minerals and mining rights thereof, or
any interest therein, and to explore, work, exercise, develop and turn
to account the same.
To crush, win, get, quarry, smelt, calcine, refine, dress,
amalgamate, manipulate and prepare for market ore, metal and mineral
substances of all kinds and to carry on any other metallurgical
operations which may seem conducive to any of the company's objects.
To buy, acquire, hold, use, employ, mortgage, convey, lease and
dispose of patent rights, letters patent, copyrights, processes,
devices, inventions, trademarks, formulae, good will and other rights.
To purchase, acquire, hold and dispose of stocks, bonds, and
other obligations, including judgments, interest accounts or debts of
any corporation, domestic or foreign, owning or controlling any
articles which are or might be or become useful in the business of
this company and to purchase, acquire, hold and dispose of stocks,
bonds, or other obligations, including judgments, interests, accounts
or debts of any corporations, domestic or foreign, engaged in a
business similar to that of this company, or engaged in the
manufacture, use or sale of property or in the construction or
operation of works necessary or useful
<PAGE>
15
in the business of this company, or in which, or in connection with
which, the manufactured articles, product or property of this company
may be used, or of any corporation with which this corporation is or
may be authorized to consolidate according to law, and this company
may issue in exchange therefor the stock, bonds, or other obligations
of this company.
To own, operate and conduct a general wholesale business, or a
chain of wholesale businesses, and all such other businesses incident
thereto or connected therewith, and a general retail business, or a
chain of retail businesses, for the purpose of buying and selling
mining machinery, equipment and supplies of every kind and character,
oil and gas well supplies, builders' supplies, electrical supplies,
sheet metal supplies, air conditioning supplies, agricultural
supplies, paints, chemicals, oils, gasoline, automobile supplies,
office supplies, store equipment, hotel equipment, bank supplies,
radios, musical instruments, feeds, flour, fertilizer, farm
implements, farm supplies, of all kinds and character, plumbing
supplies, heating supplies, electrical refrigeration supplies,
groceries, foods, produce, bakery products, dairy products, farm
products, tobacco, cigars, cigarettes, snuff, candy, confectioneries,
ice, ice cream, fruit syrups, chocolate, chewing gum, notions, drugs,
playing cards, soft drinks, peanut butter, medicines, sanitary
supplies, peanut butter sandwiches, peanuts, fruits, nuts, grains,
cereals, meats, hay, books, school supplies, stationery, glassware,
crockery, pottery, queensware, jewelry, shoes, boots, toys, millinery,
hardware, leather goods, sporting goods, carpets, rugs, decorations,
furniture, roofing supplies, and all other articles of machinery,
equipment, supplies, food products and merchandise necessary and
convenient for dress, personal and household use and use in
agriculture, mining and manufacturing, and building and construction
work.
To manufacture, lease, buy, sell and deal in the aforesaid lines
of mining machinery, equipment, supplies of every kind and character,
food products and merchandise.
To do a general business as commission merchant, broker, selling
agent or factor, for the purpose of buying, selling, dealing in or
selling on commission, or otherwise, any of the aforesaid lines of
mining machinery, electrical equipment, supplies, products and
merchandise of every kind and character.
To conduct and carry on the business of manufacturing, buying,
selling and dealing in building supplies of every kind
<PAGE>
16
and character, alkalies and chemicals of all kinds, and all articles
and things used in the manufacture, maintenance and working thereof,
and also all apparatus and implements and things for use either alone
or in connection with the products of which they are ingredients, or
in the manufacture of which they are a factor.
To buy, sell and deal in at retail or wholesale automobiles,
trailers, buses, trucks, tractors, motorcycles, bicycles, airplanes,
and all other means of conveyance and transportation, and all parts
and accessories thereof, and to carry on any trade or business
incident thereto or connected therewith.
To conduct a general insurance agency and bond business and
insurance brokerage business, consisting of fire, casualty, plate
glass, steam boilers, elevator, accident, fidelity, debt, burglary,
physician's defense, marine, credit and life insurance, and all other
kinds of insurance on property.
To build, own, acquire, lease, sell, operate and maintain stores,
showrooms, buildings, houses, plots, warehouses, depots, garages,
trucks, trailers, and any other kind of equipment for transportation
of products, power shovels, bulldozers, and any other equipment or
appliance that may be necessary or convenient in connection with the
operation of any of the aforesaid lines of business.
To own, operate and conduct a general storage and warehouse
business, for compensation, for the public generally, for the purpose
of storage of all kinds of personal property of every kind and
character.
To transact a general real estate agency and brokerage business.
To buy, sell, own, rent and convey property, both personal and
real, as the same is necessary and convenient for the purposes of
carrying on any and all of the aforesaid lines of business.
To acquire, own, operate, lease and sublease a general outdoor
advertising business, including billboards, signs and posters of every
kind and description, and to do and perform all kinds of public
advertising for persons, fires and corporations.
To do all things generally that may be necessary to conduct any
of the aforesaid lines of business.
<PAGE>
17
SIXTH: The amount of authorized capital stock of Low Volatile Coals,
Inc., a corporation, upon the date of this Agreement is Four Hundred Thousand
Dollars ($400,000.00), consisting of four thousand (4000) shares of common stock
of the par value of One Hundred Dollars ($100.00) per share; and all of said
stock has been issued and outstanding and is now owned and held by the following
stockholders of Low Volatile Coals, Inc. as of October 6, 1967, in the following
respective stock ownerships:
Shares
------
Vecellio & Grogan Incorporated 1,750
Southern Coals Corporation 1,500
Leo Vecellio 235
Leo Vecellio, Jr. 20
Enrico Charles Vecellio 20
Patricia Anne Vecellio 20
Erma V. Grogan 50
Malcolm F. Smith 50
Wilfred H. Smith 50
James C. Justice 50
Al Janutolo 50
Howard E. Lane 50
Donald R. Basham 75
Irwin B. Wall 20
Shoals, Inc. 60
-----
4,000
SEVENTH: Since Low Volatile Coals, Inc. owns all of the 2800 shares
of stock of Sterling Smokeless Coal Company and Low Volatile Coals, Inc. is in
fact the parent company of Sterling Smokeless Coal Company, the stockholders, of
Low Volatile Coals, Inc. have in fact an ownership interest in and to the
underlying assets of Sterling Smokeless Coal Company; and if the merger is
accomplished on the target date on October 31, 1967, by the merger of Sterling
Smokeless Coal Company into Low Volatile Coals, Inc. and Low Volatile Coals,
Inc. merges Sterling Smokeless Coal Company into itself, and Low Volatile Coals,
Inc.
<PAGE>
18
thereby becomes the surviving corporation, the aforesaid 2800 shares of stock in
Sterling Smokeless Coal Company owned by Low Volatile Coals, Inc. shall be
surrendered, retired and cancelled. Low Volatile Coals, Inc. would then succeed
to all the corporate objects, powers, rights, privileges and purposes of
Sterling Smokeless Coal Company and retain all of its present objects, powers,
rights, privileges and purposes. The merged corporation or surviving
corporation, Low Volatile Coals, Inc., would continue its operations with the
same respective stockholders, each holding the same respective number of shares
of stock in such surviving corporation; provided, however, if it should be
determined by the stockholders and boards of directors of both constituent
corporations that it was for the best interests and welfare of both constituent
corporations that the name of the surviving corporation be changed from Low
Volatile Coals, Inc. to Sterling Smokeless Coal Company; that in that event a
new stock certificate book be obtained in the amended name of Sterling Smokeless
Coal Company for the surviving corporation, with an authorized capital stock of
Four Hundred Thousand Dollars ($400,000.00), as evidenced by four thousand
(4000) shares of common stock of the par value of One Hundred Dollars ($100.00)
per share; and that upon accomplishing the merger on October 31, 1967, that the
board of directors of the surviving corporation, with the changed name to
Sterling Smokeless Coal Company, direct, authorize and empower the president and
secretary to issue and deliver to the aforesaid respective stockholders of the
surviving corporation, Low Volatile Coals, Inc., their aforesaid corresponding
numbers of shares of stock in the name of Sterling Smokeless Coal Company, the
amended name of the surviving corporation, in such size stock certificates as
requested by the respective owners of said stock, upon the surrender by each of
said stockholders of the constituent corporation, Low Volatile Coals, Inc., of
all their aforesaid shares of stock in such
<PAGE>
19
Low Volatile Coals, Inc. with properly executed certificates of assignments to
Sterling Smokeless Coal Company, the amended name of the surviving corporation,
Low Volatile Coals, Inc., of all of the stock certificates evidencing all of the
four thousand (4000) shares of stock of Low Volatile Coals, Inc., for retirement
and cancellation.
EIGHTH: The bylaws of Low Volatile Coals, Inc., as they shall exist on
the date of this Agreement, shall be and remain the bylaws of Sterling Smokeless
Coal Company, the amended name of the Surviving Corporation, Low Volatile Coals,
Inc., until the same shall be altered, amended or repealed, as therein provided.
NINTH: The names and addresses of the Directors of Sterling Smokeless
Coal Company, the amended name of the Surviving Corporation, Low Volatile Coals,
Inc., who shall hold office until the annual meeting of stockholders and until
the election and qualification of their successors are as follows:
Leo Vecellio 508 South Kanawha Street
Beckley, West Virginia
James C. Justice 805 Northwestern Avenue
Beckley, West Virginia
Wilfred H. Smith 104 Maxwell Hill Road
Beckley, West Virginia
Upon the effective date of this Agreement, the officers of Low
Volatile Coals, Inc., now serving as officers of Low Volatile Coals, Inc., will
continue to serve as officers of Sterling Smokeless Coal Company, the amended
name of the Surviving Corporation, Low Volatile Coals, Inc., until their
successors are selected as provided by the bylaws of Low Volatile Coals, Inc.,
now by amendment of name, Sterling Smokeless Coal Company.
TENTH: On the effective date of this Agreement, Sterling Smokeless
Coal Company, the amended name of the Surviving Corporation, Low Volatile Coals,
Inc., shall,
<PAGE>
20
without other transfer, succeed to and possess all the rights, capacity,
privileges, powers, franchises and immunities, and be subject to all the
restrictions, disabilities, liabilities, obligations and duties of each of the
said constituent corporations, and all and singular, the rights, privileges,
powers, franchises and immunities of each of said constituent corporations, and
all property, real, personal and mixed, and all debts, obligations and
liabilities due to either of the said constituent corporations on whatever
account shall be vested in Sterling Smokeless Coal Company, the amended name of
the Surviving Corporation, Low Volatile Coals, Inc., and all property, leases,
rights, privileges, powers, franchises and immunities, and all and every other
interest, shall be thereafter as effectually the property of Sterling Smokeless
Coal Company, the amended name of the Surviving Corporation, Low Volatile Coals,
Inc., as they were of the said respective constituent corporations, and the
title to any real estate vested by deed or otherwise in either of the said
constituent corporations, shall not revert or be in any way impaired by reason
of the merger or the statute providing therefor, provided that all rights of
creditors and all liens upon any property of each of the said constituent
corporations shall be preserved impaired, limited to the property affected by
such liens at the time of such merger, and all debts, liabilities and duties of
the respective constituent corporations shall henceforth attach to Sterling
Smokeless Coal Company, the amended name of the Surviving Corporation, Low
Volatile Coals, Inc., and may be enforced against it to the same extent as if
said debts, liabilities and duties had been incurred or contracted by it in its
amended name of Sterling Smokeless Coal Company, a corporation.
ELEVENTH: This Agreement shall be submitted to the respective
stockholders of the Constituent Corporations, as provided by law, and upon the
adoption thereof by the requisite two-thirds (2/3) votes of the stockholders of
each of the Constituent Corporations, as
<PAGE>
21
provided by law, then due certification of such adoption and approvals shall be
made on this Agreement by the Secretary of each such corporation, under the
seals thereof, and the Agreement so adopted, approved and certified, shall be
signed by the president and secretary of each such corporation, under the
corporate seals thereof, and acknowledged by the president of each such
corporation, and the Agreement, so certified, executed and acknowledged, shall
be filed in the Office of the Secretary of State and shall thence be taken and
deemed to be the Agreement and act of merger of said corporations into the
Surviving Corporation, Low Volatile Coals, Inc., and by change of name to
Sterling Smokeless Coal Company, a corporation, as the Surviving Corporation,
and this Agreement shall take effect and be deemed and taken to be the Agreement
and act of merger of the said Surviving Corporation, Sterling Smokeless Coal
Company, as amended, and the merger shall be and become effective immediately
after the close of business on the day of the filing of this Agreement in the
Office of the Secretary of State of the State of West Virginia, and a duly
certified copy of such Agreement and act of merger by the Secretary of State,
under the seal of his office, shall be duly recorded in the Office of the Clerk
of the County Court of Raleigh County, West Virginia, as provided by Chapter 31,
Article 1, Section 63 of the Code of West Virginia.
TWELFTH: The existence of this corporation shall be perpetual.
THIRTEENTH: Upon the effective date of this Agreement, Sterling
Smokeless Coal Company, as chartered by the State of West Virginia on November
18, 1926, shall execute to Sterling Smokeless Coal Company, a corporation, the
amended name of the Surviving Corporation, Low Volatile Coals, Inc., a
confirmatory deed or deeds to the respective parcels of real estate owned by it,
which deed or deeds shall be recorded in the
<PAGE>
22
offices of the clerks of the county courts of the respective counties in which
such real estate is located, and such deed or deeds shall recite as the
consideration therefor this merger and shall be confirmatory of the title of
such real estate in Sterling Smokeless Coal Company, a corporation, the amended
name of the Surviving Corporation, Low Volatile Coals, Inc. If at any time
thereafter Sterling Smokeless Coal Company, a corporation, as amended, as
aforesaid, shall deem or be advised that any deeds or further assignments are
necessary or desirable to vest, or to perfect or confirm of record, or
otherwise, in Sterling Smokeless Coal Company, as amended, the title to any
property of Sterling Smokeless Coal Company, as chartered by the State of West
Virginia on November 18, 1926, acquired or to be acquired by Low Volatile Coals,
Inc., as amended by Sterling Smokeless Coal Company, by reason of or as a result
of the merger, Sterling Smokeless Coal Company, as chartered by the State of
West Virginia on November 18, 1926, and its proper officers and directors, shall
and will execute and deliver any and all such proper deeds and assignments and
do all things necessary or proper so to vest, perfect or confirm title to such
property in Sterling Smokeless Coal Company, as amended, and to otherwise carry
out the purposes of this Agreement.
FOURTEENTH: Sterling Smokeless Coal Company, as amended, shall pay the
expense of carrying this Agreement into effect and of accomplishing the merger,
if the same is finally approved by the directors and stockholders of both
corporations, and all other requirements of the merger are completed and the
same takes effect. If, for any reason, the said merger does not take effect,
each corporation shall pay the expenses incurred by it.
FIFTEENTH: Upon the effective date of this Agreement, the separate
existence of Sterling Smokeless Coal Company, as incorporated on November 18,
1926, by the Secretary of State of the State of West Virginia, shall cease, and
said corporation shall be
<PAGE>
23
merged in accordance with the provisions of this Agreement into Low Volatile
Coals, Inc., and by amendment of the name of the Surviving Corporation, Low
Volatile Coals, Inc., to Sterling Smokeless Coal Company, into Sterling
Smokeless Coal Company, a corporation, which shall survive such merger and
continue in existence as such Surviving Corporation.
IN WITNESS WHEREOF, this Agreement of Merger has been executed by the
board of directors of each of the Constituent Corporations, and the corporate
seal of each of the Constituent Corporations has been hereunto affixed and
attested by the secretary of each of the Constituent Corporations, as of the day
and year first above written.
FOR LOW VOLATILE COALS, INC.
[Executed]
--------------------------------
Being all of the Board of Directors
of Low Volatile Coals, Inc.
[Executed]
--------------------------------
[Executed]
--------------------------------
(Corporate Seal)
ATTEST:
[Executed]
- -----------------------------
Secretary
<PAGE>
24
FOR STERLING SMOKELESS COAL COMPANY
[Executed]
-----------------------------------------
[Executed]
-----------------------------------------
[Executed]
-----------------------------------------
[Executed]
-----------------------------------------
Being all of the Board of Directors of
Sterling Smokeless Coal Company.
(Corporate Seal)
ATTEST:
[Executed]
-------------------------------
Secretary
<PAGE>
25
I, Wilfred H. Smith, Secretary of Sterling Smokeless Coal Company,
corporation, organized on the 18th day of November, 1926, and existing under the
laws of the State of West Virginia, do hereby certify as such Secretary and
under the seal of said corporation, that the Agreement of Merger on which this
certificate is made was duly submitted to and considered by the stockholders of
Sterling Smokeless Coal Company, a corporation, at a special meeting of said
stockholders duty called separately in the manner provided by law for the
purpose of considering said Agreement of Merger, and duly held on the 31st day
of October, 1967, after publication of a notice of special meeting of
stockholders of Sterling Smokeless Coal Company in the issues of October 9,
1967, and October 19, 1967, in the Beckley Post-Herald, a newspaper published in
Raleigh County, wherein the respective principal offices of Sterling Smokeless
Coal Company, a corporation, and Low Volatile Coals, Inc., a corporation, are
located, and after a copy of such notice was mailed on October 6, 1967, to the
last known post office address of each stockholder of Sterling Smokeless Coal
Company, a corporation, more than twenty (20) days prior to the date of such
meeting; and after a letter dated October 6, 1967, addressed to all the
stockholders of Sterling Smokeless Coal Company, signed by all the members of
the Board of Directors of Sterling Smokeless Coal Company, calling such special
meeting of said stockholders for the purpose of considering said Agreement of
Merger, was mailed on October 6, 1967, to the last known post office address of
each such stockholder, as required by the bylaws of the corporation, more than
twenty (20) days prior to the date of such meeting; that at such meeting said
agreement was considered by the stockholders, and a vote by ballot was taken in
person and by proxy for the adoption or rejection of the same; that the votes of
stockholders representing more than two-thirds (2/3) of the total number of
shares of the capital stock of said
<PAGE>
26
corporation, issued and outstanding, at said time were cast for the adoption of
such agreement; that all the stockholders and members of the board of directors
of both constituent corporations have determined that it is for the best
interests and welfare of both constituent corporations that the name of the
surviving corporation in this merger be changed from Low Volatile Coals, Inc. to
Sterling Smokeless Coal Company; that the name of the surviving corporation of
---------------------------------------------
Low Volatile Coals, Inc., a corporation, be, and the same was, thereby amended
- ------------------------------------------------------------------------------
and changed to Sterling Smokeless Coal Company, a corporation; and that said
- -------------------------------------------------------------
Agreement of Merger was at said meeting duly adopted as aforesaid.
WITNESS my hand and the seal of said Sterling Smokeless Coal Company,
a corporation, this 31st day of October, 1967.
[Executed]
-----------------------------------------------
Secretary of Sterling Smokeless Coal Company,
a corporation incorporated November 18, 1926.
(Corporate Seal)
<PAGE>
27
I, Wilfred H. Smith, Secretary of Low Volatile Coals, Inc., a
corporation, organized and existing under the laws of the State of West
Virginia, do hereby certify as such Secretary and under the seal of said
corporation, that the Agreement of Merger on which this certificate is made was
duly submitted to and considered by the stockholders of Low Volatile Coals,
Inc., a corporation, at a special meeting of said stockholders duly called
separately in the manner provided by law for the purpose of considering said
Agreement of Merger, and duty held on the 31st day of October, 1967, after
publication of a notice of special meeting of stockholders of Low Volatile
Coals, Inc. in the issues of October 9, 1967, and October 19, 1967, in the
Buckley Post-Herald, a newspaper published in Raleigh County, wherein the
respective principal offices of Low Volatile Coals, Inc., a corporation, and
Sterling Smokeless Coal Company, a corporation, are located, and after a copy of
such notice was mailed on October 6, 1967, to the last known post office address
of each stockholder of Low Volatile Coals, Inc., a corporation, more than twenty
(20) days prior to the date of such meeting; and after a letter dated October 6,
1967, addressed to all the stockholders of Low Volatile Coals, Inc., signed by
Leo Vecellio, President, calling such special meeting of said stockholders for
the purpose of considering said Agreement of Merger, was mailed on October 6,
1967, to the last known post office address of each such stockholder, as
required by the bylaws of the corporation, more than twenty (20) days prior to
the date of such meeting; that at such meeting said agreement was considered by
the stockholders, and a vote by ballot was taken in person and by proxy for the
adoption or rejection of the same; that the votes of stockholders representing
more than two-thirds (2/3) of the total number of shares of the capital stock of
said corporation, issued and outstanding, at said time were cast for the
adoption of such agreement; that all the stockholders and members of the board
of directors of both constituent
<PAGE>
28
corporations have determined that it is for the best interests and welfare of
both constituent corporations that the name of the surviving corporation in this
merger be changed from Low Volatile Coals, Inc. to Sterling Smokeless Coal
Company; that the name of the surviving corporation of Low Volatile Coals, Inc.,
-----------------------------------------------------------------------
a corporation, be, and the same was, thereby amended and changed to Sterling
- ----------------------------------------------------------------------------
Smokeless Coal Company, a corporation; and that said Agreement of Merger was at
- -------------------------------------
said meeting duly adopted as aforesaid.
WITNESS my hand and the seal of said Low Volatile Coals, Inc., a
corporation, this 31st day of October, 1967.
[Executed]
------------------------------------------
Secretary of Low Volatile Coals, Inc., a
(Corporate Seal) corporation
WITNESS my hand and seal of said Sterling Smokeless Coal Company, a
corporation, the amended name of the surviving corporation, Low Volatile Coals,
Inc. on October 31, 1967, this 31st day of October, 1967.
(Corporate Seal) [Executed]
------------------------------------------
Secretary of Sterling Smokeless Coal
Company, a corporation, the amended name of
the surviving corporation, Low Volatile
Coals, Inc., on October 31, 1967.
<PAGE>
29
The above and foregoing Agreement of Merger, having been authorized by
all of the directors and executed by all of the board of directors and by the
duly authorized officers under the corporate seal of each corporate party
thereto, and having been duly submitted to and considered by the stockholders of
each corporate party thereto, at a special meeting thereof separately called and
held, in accordance with the statutes of the State of West Virginia, and having
been duly adopted by the votes cast by ballot of the stockholders of each
corporate party thereto, representing more than two-thirds (2/3) of the total
number of issued and outstanding shares of the capital stock of each corporate
party, all in accordance with the statutes of the State of West Virginia; and
the fact that all the stockholders and members of the board of directors of both
constituent corporations have determined that it is for the best interests and
welfare of both constituent corporations that the name of the surviving
corporation in this merger be changed from Low Volatile Coals, Inc. to Sterling
Smokeless Coal Company; that the name of the surviving corporation of Low
-------------------------------------------------
Volatile Coals, Inc., a corporation, be, and the same was, thereby amended and
- ------------------------------------------------------------------------------
changed to Sterling Smokeless Coal Company, a corporation; and that the
- ---------------------------------------------------------
foregoing facts having been certified on said Agreement of Merger by the
Secretary of Low Volatile Coals, Inc., a West Virginia corporation, and by the
Secretary of Sterling Smokeless Coal Company, a West Virginia corporation, and
by the Secretary of Sterling Smokeless Coal Company, a corporation, amended name
of the surviving corporation of Low Volatile Coals, Inc., on October 31, 1967,
under the respective corporate seals of each said corporate party, the President
and Secretary of Low Volatile Coals, Inc., a corporation, the President and
Secretary of Sterling Smokeless Coal Company, incorporated on November 18, 1926,
and the President and Secretary of Sterling Smokeless Coal Company, the amended
name of the surviving corporation, Low
<PAGE>
30
Volatile Coals, Inc., on October 31, 1967, do now sign the said Agreement of
Merger under the respective corporate seals of each such corporation by
authority of the board of directors and stockholders thereof as the respective
act, deed and agreement of each of said corporations, on the 31st day of
October, 1967.
[Executed] [Ececuted]
- ------------------------------ ---------------------------------------
President of Sterling Smoke- President of Low Volatile Coals,
less Coal Company, a corp- Inc., a corporation.
oration, amended name of
surviving corporation, Low
Volatile Coals, Inc., on [Executed]
---------------------------------------
October 31, 1967. Secretary of Low Volatile Coals,
Inc., a corporation.
[Executed] [Executed]
- ----------------------------- ---------------------------------------
Secretary of Sterling Smoke- President of Sterling Smokeless
less Coal Company, a corporation, Coal Company, incorporated on
amended name of surviving November 18, 1926.
corporation, Low Volatile Coals,
Inc., on October 31, 1967. [Executed]
---------------------------------------
Secretary of Sterling Smokeless
Coal Company, incorporated on
November 18, 1926.
<PAGE>
31
STATE OF WEST VIRGINIA,
COUNTY OF RALEIGH, SS:
I, Beulah Pulliam, a Notary Public in and for said county and state
aforesaid, do hereby certify that Leo Vecellio, the President of Low Volatile
Coals, Inc., a West Virginia corporation, who is personally known to me to be
the same person whose name is subscribed to the foregoing Agreement of Merger as
such president, and is personally known to me to be the president of such
corporation, appeared before me this day in person and acknowledged that he
signed, sealed and delivered the said Agreement of Merger as his free and
voluntary act as such president and as the free and voluntary act, deed and
agreement of said corporation, to wit, Low Volatile Coals, Inc., for the uses
and purposes therein set forth, and further acknowledged said Agreement of
Merger to be the free and voluntary act, deed and agreement of said corporation,
and to have been authorized by the board of directors of said corporation, and
to have been adopted by the affirmative votes (cast by ballot at a special
meeting of the stockholders of said corporation duly called and held according
to the statutes of the State of West Virginia governing the merger of
corporations) of the stockholders representing more than two-thirds (2/3) of the
total number of the issued and outstanding shares of capital stock of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on
this 31st day of October, 1967.
My commission expires: March 1, 1969.
[Executed]
---------------------------------
Notary Public of Raleigh
(Notarial Seal) County, West Virginia.
<PAGE>
32
STATE OF WEST VIRGINIA,
COUNTY OF RALEIGH, SS:
I, Beulah Pulliam, a Notary Public in and for said county and state
aforesaid, do hereby certify that Leo Vecellio, the President of Sterling
Smokeless Coal Company, a West Virginia corporation, incorporated on November
18, 1926 who is personally known to me to be the same person whose name is
subscribed to the foregoing Agreement of Merger as such president, and is
personally known to me to be the president of such corporation, appeared before
me this day in person and acknowledged that he signed, sealed and delivered the
said Agreement of Merger as his free and voluntary act as such president and as
the free and voluntary act, deed and agreement of said corporation, to wit,
Sterling Smokeless Coal Company, a West Virginia corporation, incorporated on
November 18, 1926, for the uses and purposes therein set forth, and further
acknowledged said Agreement of Merger to be the free and voluntary act, deed and
agreement of said corporation, and to have been authorized by the board of
directors of said corporation, and to have been adopted by the affirmative votes
(cast by ballot at a special meeting of the stockholders of said corporation
duly called and held according to the statutes of the State of West Virginia
governing the merger of corpora tions) of the stockholders representing more
than two-thirds (2/3) of the total number of the issued and outstanding shares
of capital stock of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on
this 31st day of October, 1967.
My commission expires: March 1, 1969.
/s/Beulah Pulliam
--------------------------------------
Notary Public of Raleigh
(Notarial Seal) County, West Virginia.
<PAGE>
33
STATE OF WEST VIRGINIA,
COUNTY OF RALEIGH, SS:
I, Beulah Pulliam, a Notary Public in and for said county and state
aforesaid, do hereby certify that Leo Vecellio, the President of Sterling
Smokeless Coal Company, a corporation, amended name of the surviving
corporation, Low Volatile Coals, Inc., on October 31, 1967, who is personally
known to me to be the same person whose name is subscribed to the foregoing
Agreement of Merger as such president, and is personally known to me to be the
president of such corporation, appeared before me this day in person and
acknowledged that he signed, sealed and delivered the said Agreement of Merger
as his free and voluntary act as such president and as the free and voluntary
act, deed and agreement of said corporation, to wit, Sterling Smokeless Coal
Company, a corporation, amended name of the surviving corporation, Low Volatile
Coals, Inc. on October 31, 1967, for the uses and purposes therein set forth,
and further acknowledged said Agreement of Merger to be the free and voluntary
act, deed and agreement of said corporation, and to have been authorized by the
board of directors of said corporation, and to have been adopted by the
affirmative votes (cast by ballot at a special meeting of the stockholders of
said corporation duly called and held according to the statutes of the State of
West Virginia governing the merger of corporations) of the stockholders
representing more than two-thirds (2/3) of the total number of the issued and
outstanding shares of capital stock of said corporation.
<PAGE>
34
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on
the 31st day of October, 1967.
My commission expires: March 1, 1969.
/s/Beulah Pulliam
------------------------------------
Notary Public of Raleigh
(Notarial Seal) County, West Virginia.
The foregoing Agreement of Merger,
together with all certificates
attached thereto, was prepared by:
Floyd M. Sayre
Attorney at Law
Room 613 Raleigh County Bank Building
Main Street
Beckley, West Virginia
<PAGE>
35
STATE OF WEST VIRGINIA
CERTIFICATE
I, ROBERT D. BAILEY, Secretary of State of the State of West Virginia,
hereby certify that:
the foregoing AGREEMENT OF MERGER, dated the 6th day of October, 1967, duly
certified, executed, signed, sealed and acknowledged, between LOW VOLATILE
COALS, INC. and STERLING SMOKELESS COAL COMPANY, both being corporations
created, organized and existing under the laws of the State of West Virginia,
providing for a merger of STERLING SMOKELESS COAL COMPANY with and into LOW
VOLATILE COALS, INC., was duly filed in my office on the 1st day of November,
1967, as required by law, and that by virtue thereof and pursuant to the
provisions of Chapter 31, Article 1, Section 63, Code of West Virginia, 1931, as
amended, said LOW VOLATILE COALS, INC. is the continuing, resulting and
surviving corporation which changed its name in said agreement of merger to
STERLING SMOKELESS COAL COMPANY, and chief works located at Whitby, Raleigh
County, West Virginia, and shall have the right of perpetual existence unless
sooner dissolved by law.
Given under my hand and the Great Seal of the said
(G. S.) State, at the City of Charleston, this first day of
November, 1967
Robert D. Bailey,
Secretary of State
<PAGE>
EXHIBIT 3.102
BY-LAWS
of
STERLING SMOKELESS COAL COMPANY
-------------------------------------
ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. Annual Meeting. The annual meeting of stockholders shall
--------------
be held on the second Wednesday of April in each year (or, if that be a legal
holiday, on the next succeeding business day) at one o'clock in the afternoon or
at such other hour as may from time to time be designated by the Board of
Directors and specified in the notice of meeting. [AMENDED 8-1-87]
SECTION 2. Special Meetings. Special meetings of the stockholders
----------------
for any purpose or purposes may be called by the President or by order of the
Board of Directors, and it shall be the duty of the Secretary to call such a
meeting upon a request in writing therefor stating the purpose or purposes
thereof, delivered to the Secretary, signed by the holders of record of not less
than one-tenth of the outstanding capital stock of the corporation.
SECTION 3. Place of Meeting. Meetings of the stockholders may be
----------------
held at its principal office in Beckley, West Virginia, or elsewhere within the
State of West Virginia, or may be held outside the State of West Virginia, or
may be held outside the State of West Virginia at such place or places as the
Board of Directors may from time to time determine.
SECTION 4. Notice of Stockholders' Meeting. Notice of the annual and
-------------------------------
of any special meeting of stockholders shall be given to each stockholder of
record at least ten and not more than forty days before the meeting by
personally delivering to each stockholder or by depositing in the United States
mails, addressed to the address last left by such stockholder with the Transfer
Agent, or in the absence of a Transfer Agent, the Registrar, or in the absence
of a Transfer Agent and a Registrar, the Secretary of the corporation, a written
or printed notice, signed by the President or a Vice President or the Secretary
or an Assistant Secretary, stating the place, day and hour of the meeting and
the purpose or purposes for which the meeting is called, and any such notice
shall be deemed given when personally delivered or deposited postage prepaid in
the United States mail. Any stockholder, or his attorney thereunto authorized,
may waive notice of any meeting either before, at or after the meeting.
SECTION 5. Quorum. At all meetings of stockholders the holders or
------
record of a majority of the issued and outstanding capital stock of the
corporation, present in person or by proxy,
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2
shall constitute a quorum for the transaction of business. In the absence of a
quorum, a majority in interest of those present or represented may adjourn the
meeting by resolution to a date fixed therein, and no further notice thereof
shall be required. At any such adjourned meeting at which a quorum may be
present, any business may be transacted which might have been transacted at the
meeting as originally called.
SECTION 6. Voting. At each meeting of the stockholders every
------
stockholder holding one or more shares of the capital stock of the corporation
shall be entitled to one vote for each such share registered in his name on the
books of the corporation at the time of the closing of the transfer books of the
corporation for such meeting or on the record date therefor, as the case may be,
except that, in the case of an election of directors, each stockholder shall be
entitled to as many votes as shall equal the number of votes which (except for
this cumulative voting provision) such stockholder would be entitled to cast for
the election of directors with respect to his shares of stock, multiplied by the
number of directors to be elected, and such stockholder may cast all of such
votes for a single director or may distribute them among the number to be voted
for, or any two or more of them, as he may see fit. Except for the election of
directors, all resolutions shall be adopted by a majority of votes properly cast
at the meeting; at elections of directors, those nominees up to the number to be
elected, receiving the largest number of votes shall be deemed elected. All
elections for directors shall be by ballot, but this requirement shall be deemed
to have been waived if at the meeting no stockholder shall demand a ballot vote.
SECTION 7. Proxies. Every stockholder entitled to vote at any
-------
meeting of stockholders may vote by proxy. Every proxy must be executed in
writing by the stockholder or by his duly authorized attorney. No proxy shall
be voted after the expiration of three years from the date of its execution
unless the stockholder executing it shall have specified a longer duration, and
then only within the period specified. Every proxy shall be revocable at the
pleasure of the person executing it or of his personal representative or assigns
except as otherwise provided by law.
SECTION 8. Inspectors of Election. Two inspectors of election, who
----------------------
shall act as such at elections of directors, shall be elected by and shall serve
at the pleasure of the Board of Directors. If one or both of such inspectors
fails to appear at any meeting for the election of directors, the Chairman of
the meeting may appoint a substitute or substitutes to act at such meeting in
place of such absent inspector or inspectors. Each inspector shall be entitled
to a reasonable compensation for his services, to be paid by the corporation.
The inspectors, before entering upon the discharge of their duties, shall be
sworn faithfully to execute the duties of inspectors at such meeting
<PAGE>
3
with strict impartiality and according to the best of their ability, and the
oath so taken shall be subscribed by them.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Powers. The property, affairs and business of the
--------------
corporation shall be managed by the Board of Directors.
SECTION 2. Number. The number of directors shall be not less than
------
three (3) nor more than twenty (20), as may be determined from time to time by
the stockholders or the Board of Directors. [ANNULLED 4-11-84]
SECTION 3. Term of office and Qualification. Directors need not be
--------------------------------
stockholders and shall be elected to serve until the next annual election of
directors and until their successors are elected and shall have qualified.
SECTION 4. Chairman of the Board. The stockholders or the Board of
---------------------
Directors may elect a Chairman of the Board from among its members to serve at
its pleasure, who shall preside at all meetings of the Board of Directors and
shall have such other duties as from time to time may be assigned to him by the
Board of Directors or by the Executive Committee.
SECTION 5. Vacancies. Vacancies in the Board of Directors because of
---------
death, resignation, disqualification, physical or mental incapacity to act, an
increase in the number of members of the Board of Directors, or resulting from
any other cause whatsoever, shall be filled for the unexpired portion of the
term by a majority vote of the remaining directors, although less than a quorum,
given at a regular meeting, or at a special meeting called for the purpose.
SECTION 6. Place of Meeting. The Board of Directors shall hold its
----------------
meetings at such places within or without the State of West Virginia as it may
decide.
SECTION 7. Regular Meetings; Notice. The Board of Directors by
------------------------
resolution may establish regular periodic meetings and notice of such meetings
need not be given.
SECTION 8. Special Meetings. Special meetings of the Board of
----------------
Directors shall be called by the Secretary or an Assistant Secretary whenever
ordered by the Board of Directors or requested in writing by the President or
any two other directors. Such meetings shall be held at the principal office of
the corporation unless the Board of Directors, by its order calling a special
meeting, shall fix a different place for such meeting. Notice of each special
meeting shall be mailed to each director,
<PAGE>
4
addressed to his residence or usual place of business, at least four days before
the day on which the meeting is to be held, or shall be sent to such address by
telegraph, or be given personally or by telephone, not later than two days
before the day on which the meeting is to be held. Notice of any meeting may be
waived in writing by any director before, at or after the meeting.
SECTION 9. Quorum and Manner of Acting. A majority of the members of
---------------------------
the Board of Directors then in office shall constitute a quorum for the
transaction of any business at any meeting of the Board of Directors and, except
as herein otherwise provided, the act of a majority of those present at the
meeting at which a quorum is present shall be the act of the Board of Directors.
In the absence of a quorum of the Board of Directors a majority of the members
present may adjourn the meeting from time to time until a quorum be had, and no
notice of any such adjournment need be given.
SECTION 10. Fees. The Board of Directors may from time to time
----
prescribe reasonable fees for attendance by members of the Board of Directors
and members of the Executive Committee and other committees, and for
reimbursement for travel and other expenses incidental to such attendance.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. How Constituted and the Powers Thereof. The Board of
--------------------------------------
Directors by the vote of a majority of the entire Board, may designate three or
more directors to constitute an Executive Committee, who shall serve during the
pleasure of the Board of Directors. Except as otherwise provided by law, by
these by-laws or by resolution adopted by a majority of the whole Board of
Directors, the Executive Committee shall possess and may exercise during the
intervals between the meetings of the directors, all of the powers of the Board
of Directors in the management of the business, affairs and property of the
corporation, including the power to cause the seal of the corporation to be
affixed to all papers that may require it.
SECTION 2. Organization, etc. The Executive Committee shall choose
-----------------
its own Chairman and its Secretary and may adopt rules for its procedure. The
Committee shall keep a record of its acts and proceedings and report the same
from time to time to the Board of Directors.
SECTION 3. Meetings. Meetings of the Executive Committee may be
--------
called by the Chairman of the Committee, and shall be called by him at the
request of any member of the Committee, or by any member if there shall be no
Chairman. Notice of each meeting of the Committee shall be sent to each
<PAGE>
5
member of the Committee by mail at least two days before the meeting is to be
held, or given personally or by telegraph or telephone at least one day before
the day on which the meeting is to be held. Notice of any meeting may be waived
before, at or after the meeting.
SECTION 4. Quorum and Manner of Acting. A majority of the Executive
---------------------------
Committee shall constitute a quorum for the transaction of business, and the act
of a majority of those present at the meeting at which a quorum is present shall
be the act of the Executive Committee.
SECTION 5. Removal. Any member of the Executive Committee may be
-------
removed, with or without cause, at any time, by the Board of Directors.
SECTION 6. Vacancies. Any vacancy in the Executive Committee shall
---------
be filled by the Board of Directors.
SECTION 7. Other Committees. The Board of Directors of the Executive
----------------
Committee may by resolution provide for such other standing or special
committees as it deems desirable, and discontinue the same at pleasure. Each
Committee shall have such powers and perform such duties, not inconsistent with
law, as may be assigned to it by the Board of Directors or by the Executive
Committee.
ARTICLE IV
OFFICES AND OFFICERS
SECTION 1. Officers--Number. The officers of the Corporation shall
----------------
be the Chairman, the President, one or more Vice-Presidents as the Board of
Directors or Executive Committee may determine, a Treasurer and a Secretary.
The Board of Directors or Executive Committee may from time to time appoint one
or more Assistant Secretaries and Assistant Treasurers. The same person may
hold any two or more offices except those of President and Vice-President. No
officer except the President need be a member of the Board of Directors.
SECTION 2. Salaries. The Board of Directors or Executive Committee
--------
may from time to time fix the salary of the President, as well as the salaries
of other officers of the corporation.
SECTION 3. Election, Term of Office and Qualification. All officers
------------------------------------------
of the corporation shall be elected annually (unless otherwise specified at the
time of election) by the Board of Directors or Executive Committee and each
officer shall hold office until his successor shall have been duly chosen and
shall have qualified.
<PAGE>
6
SECTION 4. Vacancies. If any vacancy shall occur in any office of
---------
the corporation, such vacancy shall be filled by the Board of Directors or by
the Executive Committee.
SECTION 5. Other Officers, Agents and Employees. The Board of
------------------------------------
Directors or the Executive Committee may from time to time appoint such other
officers, agents and employees of the corporation as may be deemed proper, and
may authorize any officer to appoint and remove agents and employees. The Board
of Directors or the Executive Committee or the President may from time to time
prescribe the powers and duties of such officers, agents and employees of the
corporation in the management of its property, affairs and business.
SECTION 6. Removal. Any officer of the corporation may be removed,
-------
either with or without cause, by vote of a majority of the Board of Directors or
of the Executive Committee, or, in the case of any officer, agent or employee
not elected by the Board of Directors or the Executive Committee, by any
committee or superior officer upon such power of removal may be conferred by the
Board of Directors or by the Executive Committee.
SECTION 7. Chairman. The Chairman shall preside at all meetings of
--------
the stockholders and of the Board of Directors, and shall perform such other
duties as shall be delegated to him at any time or from time to time by the
Board of Directors.
SECTION 8. President. The President shall be the chief executive
---------
officer of the corporation and shall have general direction of its business,
affairs and property and over its several officers. He shall see that all
orders and resolutions of the Board of Directors and of the Executive Committee
are carried into effect, and he shall have the power to execute in the name of
the corporation all authorized deeds, mortgages, ship mortgages, bonds,
contracts or other instruments, except in cases in which the signing and
execution thereof shall have been expressly delegated to some other officer or
agent of the corporation; and in general, he shall perform all duties incident
to the office of a president of a corporation, and such other duties as from
time to time may be assigned to him by the Board of Directors or by the
Executive Committee. He shall be ex officio a member of all committees. He
shall from time to time report to the Board of Directors or to the Executive
Committee all matters within his knowledge which the interest of the corporation
may require to be brought to their notice.
SECTION 9. Vice-Presidents. The Vice-President or Vice-Presidents of
---------------
the corporation, under the direction of the President, shall have such powers
and perform such duties as the Board of Directors or Executive Committee or
President may from time to time prescribe, and shall perform such other duties
as may be prescribed in these by-laws. In case of the absence or inability of
the President to act, then the Vice-Presidents, in
<PAGE>
7
the order designated therefor by the Board of Directors or Executive Committee,
shall have the powers and discharge the duties of the President.
SECTION 10. Treasurer. The Treasurer, under the direction of the
---------
President, shall have charge of the funds, securities, receipts and
disbursements of the corporation. He shall deposit all moneys and other
valuable effects in the name and to the credit of the corporation in such banks
or trust companies or with such other depositories as the Board of Directors or
Executive Committee may from time to time designate. He shall supervise and
have charge of keeping correct books of account of all the corporation's
business and transactions. If required by the Board of Directors, he shall give
a bond in such sum as the Board of Directors or Executive Committee may
designate, conditioned upon the faithful performance of the duties of his office
and the restoration to the corporation, at the expiration of his term of office,
or in case of his death, resignation or removal from office, of all books,
papers, vouchers, money or other property of whatever kind in his possession
belonging to the corporation. He shall also have such other powers and perform
such other duties as pertain to his office, or as the Board of Directors or the
Executive Committee or the President may from time to time prescribe.
SECTION 11. Assistant Treasurers. In the absence or disability of
--------------------
the Treasurer, the Assistant Treasurers, in the order designated by the Board of
Directors or by the Executive Committee, shall perform the duties of the
Treasurer, and, when so acting, shall have all the powers of, and be subject to
all restrictions upon, the Treasurer. They shall also perform such other duties
as from time to time may be assigned to them by the Board of Directors or by the
Executive Committee or the President.
SECTION 12. Secretary. The Secretary shall attend all meetings of
---------
the stockholders of the corporation and of its Board of Directors and shall keep
the minutes of all such meetings in a book or books kept by him for that
purpose. He shall keep in safe custody the seal of the corporation, and, when
authorized by the Board of Directors or the Executive Committee, he shall affix
such seal to any instrument requiring it. In the absence of a Transfer Agent or
a Registrar, the Secretary shall have charge of the stock certificate books, and
the Secretary shall have charge of such other books and papers as the Board of
Directors or Executive Committee may direct. He shall also have such other
powers and perform such other duties as pertain to his office, or as the Board
of Directors or the Executive Committee or the President may from time to time
prescribe.
SECTION 13. Assistant Secretaries. In the absence or disability of
---------------------
the Secretary, the Assistant Secretaries, in the order designated by the Board
of Directors or Executive Committee, shall perform the duties of the Secretary,
and, when
<PAGE>
8
so acting, shall have all the powers of, and be subject to all the restrictions
upon, the Secretary. They shall also perform such other duties as from time to
time may be assigned to them by the Board of Directors or Executive Committee or
the President.
ARTICLE V
CHECKS, DRAFTS, ETC.
All checks, drafts or orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents, person or persons, to whom the
Board of Directors or Executive Committee shall have delegated the power, but
under such conditions and restrictions as in said resolutions may be imposed.
The signature of any officer upon any of the foregoing instruments may be a
facsimile whenever authorized by the Board of Directors or by the Executive
Committee.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. Issue of Certificates of Stock. The Board of Directors or
------------------------------
Executive Committee shall provide for the issue and transfer of the certificates
of capital stock of the corporation, and prescribe the form of such
certificates. Every owner of stock of the corporation shall be entitled to a
certificate of stock, which shall be under the seal of the corporation (which
seal may be a facsimile, engraved or printed), specifying the number of shares
owned by him, and which certificate shall be signed by the President or Vice-
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the corporation. Said signatures may, wherever permitted
by law, be facsimile, engraved or printed. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on any such certificate or certificates shall cease to be such officer or
officers of the corporation, whether because of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the corporation.
SECTION 2. Transfer Agents and Registrars. The corporation may have
------------------------------
one or more Transfer Agents and one or more Registrars of its stock, whose
respective duties the Board of Directors may, from time to time, prescribe. If
the corporation shall have a Transfer Agent, no certificate of stock shall be
<PAGE>
9
valid until countersigned by such Transfer Agent, and if the corporation shall
have a Registrar, until registered by the Registrar. The duties of the Transfer
Agent and Registrar may be combined.
SECTION 3. Transfer of Shares. The shares of the corporation shall
------------------
be transferable only upon its books and by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the corporation by the delivery
thereof to the person in charge of the stock transfer books and ledgers or to
such other person as the Directors may designate for such purpose, and new
certificates shall thereupon be issued.
SECTION 4. Addresses of Stockholders. Every stockholder shall
-------------------------
furnish the Transfer Agent, or in the absence of a Transfer Agent, the
Registrar, or in the absence of a Transfer Agent and a Registrar, the Secretary,
with an address at or to which notices of meetings and all other notices may be
served upon or mailed to him, and in default thereof, notices may be addressed
to him at the office of the corporation.
SECTION 5. Closing of Transfer Books: Record Date. The Board of
--------------------------------------
Directors shall have power to close the stock transfer books of the corporation
for a period not exceeding forty (40) days and not less than ten (10) days prior
to the date of any meeting of stockholders; provided, however, that in lieu of
closing the stock transfer books as aforesaid the Board of Directors may fix a
date not exceeding forty (40) days and not less than ten (10) days prior to the
date of any such meeting as the time as of which stockholders entitled to notice
of and to vote at such meeting shall be determined, and all persons who were
holders of record of voting stock at such time and no others shall be entitled
to notice of and to vote at such meeting.
The Board of Directors shall also have power to close the stock
transfer books of the corporation for a period not exceeding forty (40) days
preceding the date fixed for the payment of any dividend or the making of any
distribution or for the delivery of any evidence of right or evidence of
interest; provided, however, that in lieu of closing the stock transfer books as
aforesaid the Board of Directors may fix a date not exceeding forty (40) days
preceding the date fixed for the payment of any such dividend or the making of
any such distribution or for the delivery of any such evidence of right or
interest as a record time for the determination of the stockholder entitled to
receive any such dividend, distribution, right or interest, and in such case
only stockholders of record at the time so fixed shall be entitled to receive
such dividend, distribution, right or interest.
SECTION 6. Lost and Destroyed Certificates. The Board of Directors
-------------------------------
or Executive Committee may direct a new certificate
<PAGE>
10
or certificates of stock to be issued in the place of any certificate or
certificates theretofore issued and alleged to have been lost or destroyed; by
the Board of Directors or Executive Committee when authorizing such issue of a
new certificate or certificates, may in its discretion require the owner of the
stock represented by the certificate so lost or destroyed or his legal
representative to furnish proof by affidavit or otherwise to the satisfaction of
the Board of Directors or Executive Committee of the ownership of the stock
represented by such certificate alleged to have been lost or destroyed and the
facts which tend to prove its loss or destruction. The Board of Directors or
Executive Committee may also require such person to execute and deliver to the
corporation a bond, with or without sureties, in such sum as the Board of
Directors or Executive Committee may direct, indemnifying the corporation
against any claim that may be made against it by reason of the issue of such new
certificate. The Board of Directors or Executive Committee, however, may, in
its discretion, refuse to issue any such new certificate, except pursuant to
court order.
ARTICLE VII
SEAL
The corporate seal of the corporation shall be in such form as shall
be from time to time approved by the Board of Directors. Said seal may be used
by causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. Examination of Books and Records. The Board of Directors
--------------------------------
or Executive Committee may determine from time to time whether and to what
extent and at what times and places and under what conditions and regulations
the accounts and books of the corporation, or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the corporation, except as provided
by the statutes of the State of West Virginia, or authorized by the Board of
Directors or Executive Committee.
SECTION 2. Voting of Stock in Other Corporations. Any shares of
-------------------------------------
stock in any other corporation, which may from time to time be held by the
corporation, may be represented and voted at any of the stockholders' meetings
thereof by the President or a Vice-President of the corporation or by proxy
appointed by the President or one of the Vice-Presidents of the corporation.
The Board of Directors or Executive Committee, however, may by
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11
resolution appoint any other person or persons to vote such shares, in which
case such other person or persons shall be entitled to vote such shares upon the
production of a certified copy of such resolution.
SECTION 3. Fiscal Year. The fiscal year of the corporation shall
-----------
begin on the first day of January in each year.
ARTICLE IX
INDEMNIFICATION
Any person made a party to any action, suit or proceeding by reason of
the fact that he, his testator or intestate, is or was a director, officer or
employee of the corporation or of any corporation which he served as such at the
request of the corporation, shall be indemnified by the corporation against the
reasonable expenses, including attorney's fees, actually and necessarily
incurred by him in connection with the defense of such action, suit, proceeding,
or in connection with any appeal therein, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such officer,
director or employee is liable for negligence or misconduct in the performance
of his duties; provided, however, that if any such amount is paid otherwise than
pursuant to court order of action by the stockholders, the corporation shall
within eighteen (18) months from the date of such payment mail to its
stockholders at the time entitled to vote for the election of directors a
statement specifying the person paid, the amount of the payment and the final
disposition of the litigation. Except provided by law, every such person shall
be entitled, without demand by him upon the corporation, or any action by the
corporation, to enforce the right of indemnification or reimbursement
hereinabove provided in an action at law against the corporation. The right of
indemnification or reimbursement hereinabove provided or under any applicable
statutes shall not be deemed exclusive of any other right to which any such
person may now or hereafter be otherwise entitled.
ARTICLE X
AMENDMENTS
SECTION 1. By Stockholders. These by-laws may be made, amended,
---------------
altered or repealed, by the affirmative vote of the holders of a majority of the
stock of the corporation, or their proxies, who shall be present and entitled to
vote at any annual or special meeting of stockholders, provided that notice of
the proposed amendment, alteration or repeal shall have been included in the
notice of the meeting.
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12
SECTION 2. By Directors. The Board of Directors shall have the
------------
power, by a vote of a majority of the Directors then in office, at a meeting
upon waiver of notice or called pursuant to a notice in which any such proposed
modification of the by-laws is set forth, to make, amend, alter or repeal these
by-laws except that the Board of Directors shall have no power to alter, amend,
or repeal a by-law adopted by the stockholders subsequent to any original
adoption of these by-laws by the stockholders.
* * * * * * * * * *
<PAGE>
EXHIBIT 3.103
CERTIFICATE OF FORMATION
OF
THOROUGHBRED, L.L.C.
1. The name of the limited liability company is THOROUGHBRED, L.L.C.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
3. The latest date on which the limited liability company is to dissolve is
June 30, 2024.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Formation of this 15th day of August, 1994.
/s/ James C. Seven
---------------------------------------------
James C. Sevem - Secretary
---------------------------------------------
<PAGE>
EXHIBIT 3.104
OPERATING AGREEMENT
OF
THOROUGHBRED, L.L.C
THE INTERESTS REPRESENTED BY THIS OPERATING AGREEMENT HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER STATE SECURITIES LAW. WITHOUT
REGISTRATION, THE INTERESTS MAY NOT BE TRANSFERRED, EXCEPT UPON DELIVERY TO
THE LIMITED LIABILITY COMPANY OF ADVANCE NOTICE OF THE INTENDED TRANSFER
AND, IF REQUESTED BY THE AUTHORIZED PERSON, AN OPINION OF COUNSEL
SATISFACTORY TO THE AUTHORIZED PERSON THAT NEITHER THE SECURITIES ACT OF
1933, AS AMENDED, NOR STATE SECURITIES LAWS REQUIRE REGISTRATION OF THE
TRANSFER AND THAT THE TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
<PAGE>
TABLE OF CONTENTS
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ARTICLE 1 -- ORGANIZATION.................................................. 1
1.1 Organization of the Company................................... 1
1.2 Name.......................................................... 1
1.3 Principal Office.............................................. 1
1.4 Term.......................................................... 1
1.5 Purpose....................................................... 1
1.6 Title to Company Assets....................................... 1
1.7 Registered Agent and Registered Office........................ 1
ARTICLE 2 -- CAPITAL CONTRIBUTIONS......................................... 1
2.1 Member Contributions.......................................... 1
2.2 Initial Capital Contribution.................................. 2
2.3 Additional Capital Contributions.............................. 2
2.4 Return of Distributions....................................... 2
2.5 No Priority................................................... 2
2.6 No Third Party Beneficiaries.................................. 2
ARTICLE 3 -- MANAGEMENT.................................................... 2
3.1 Management Vested in Members and Not in Managers.............. 2
3.2 Authorized Persons............................................ 2
3.3 Management of Company Business................................ 3
3.4 Compensation.................................................. 3
3.5 No Liability.................................................. 4
3.6 Indemnification............................................... 4
ARTICLE 4 -- RIGHTS AND DUTIES OF MEMBERS.................................. 4
4.1 Representation and Warranties................................. 4
4.2 Interests Not Registered Under the Securities Laws............ 4
4.3 Approval Rights............................................... 4
4.4 Admission of Additional Members............................... 5
4.5 Expulsion..................................................... 6
4.6 Restrictions.................................................. 6
4.7 Rights of an Assignee......................................... 6
4.8 Voluntary Withdrawal of a Member.............................. 6
ARTICLE 5 -- MEETINGS: APPROVALS WITHOUT A MEETING......................... 7
ARTICLE 6 -- OTHER BUSINESS VENTURES....................................... 7
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<S> <C>
ARTICLE 7 -- RECORDS, ACCOUNTING, TAX MATTERS............................. 7
7.1 Books and Records of Account................................. 7
7.2 Data Storage................................................. 8
7.3 Filing of Tax Reports........................................ 8
7.4 Tax Matters Partner.......................................... 8
7.5 Fiscal and Tax Year.......................................... 9
7.6 Accounts..................................................... 9
7.7 Tax Status................................................... 9
ARTICLE 8 -- DISTRIBUTION AND ALLOCATION RULES............................ 9
8.1 Cash Available for Distribution.............................. 9
8.2 Cash from Sales or Refinancing............................... 9
8.3 Allocations of Income, Gain, and Profit...................... 10
8.4 Allocations of Loss and Deduction............................ 10
8.5 Tax Regulation Allocations................................... 10
8.6 Curative Allocations......................................... 11
ARTICLE 9 -- DISSOLUTION. LIQUIDATION AND WINDING UP...................... 12
9.1 Dissolution and Winding Up................................... 12
9.2 Liquidating Trustee.......................................... 12
9.3 Liquidation and Termination.................................. 12
ARTICLE 10 -- GENERAL..................................................... 13
10.1 Amendment.................................................... 13
10.2 Benefit...................................................... 13
10.3 Computation of Time.......................................... 13
10.4 Construction................................................. 13
10.5 Entire Agreement............................................. 14
10.6 Equitable Relief............................................. 14
10.7 Execution.................................................... 14
10.8 Exhibits..................................................... 14
10.9 Expenses of Prevailing Party................................. 14
10.10 Further Assurances........................................... 14
10.11 Invalidity of Provisions..................................... 14
10.12 No Waiver.................................................... 15
10.13 Notices...................................................... 15
ARTICLE 11 -- DEFINITIONS................................................. 15
EXHIBIT A -- CAPITAL CONTRIBUTIONS........................................ 21
</TABLE>
ii
<PAGE>
OPERATING AGREEMENT
The Members enter this Agreement as of the Effective Date. The Members
mutually agree as follows:
ARTICLE 1-- ORGANIZATION
------------------------
1.1 Organization of the Company. The Members organize the Company as
---------------------------
a limited liability company under the Act and desire that the Company
continue to qualify as a limited liability company. The Authorized Person
will file or cause to be filed Articles of Organization and all necessary
conforming documents and perform such other filing, recording, publishing
and other acts as are necessary to comply with all requirements for the
formation and operation of a limited liability company in Delaware and all
other jurisdictions where the Company desires to conduct its business.
1.2 Name. The name of the Company is "Thoroughbred, L.L.C."
----
1.3 Principal Office. The Company will locate its principal office at
----------------
701 Market Street, Suite 815, St. Louis, MO 63101-1826, or such other place
designated by the Authorized Person.
1.4 Term. The existence of the Company began on the Effective Date
----
and will end thirty (30) years later unless terminated earlier under this
Agreement.
1.5 Purpose. The Company is organized for the following purposes: any
-------
lawful business for which a limited liability company may be organized
under the Act.
1.6 Title to Company Assets. The Company will hold title to assets in
-----------------------
the name of the Company or such nominees as the Authorized Person
determines appropriate.
1.7 Registered Agent and Registered Office. The initial registered
--------------------------------------
agent for the Company has the following name and Delaware address:
Corporation Trust Company, 1209 Orange Street, Wilmington (County of New
Castle), Delaware. The registered agent will send copies of any notices
received on behalf of the Company to each Member.
ARTICLE 2 -- CAPITAL CONTRIBUTIONS
----------------------------------
2.1 Member Contributions. Each Member will make an initial Capital
--------------------
Contribution of money and/or other property as of the Effective Date in the
amounts and form listed by the Member's name in Exhibit A.
<PAGE>
2
2.2 Initial Capital Contribution. If a Member fails to make their
----------------------------
initial Capital Contribution on a timely basis, then the Member's
Proportionate Share will be adjusted to reflect such failure.
2.3 Additional Capital Contributions. The Members have not agreed to
--------------------------------
make any additional Capital Contributions but the Members may make
additional contributions and/or loans to the Company at such time and on
such conditions as all of the Members may agree.
2.4 Return of Distributions. If a Member has received the return, by
-----------------------
cash distribution or otherwise, of the whole or part of such Member's
capital, the Member will remain liable to the Company, to the extent
provided under the Act, for any sums (not in excess of the capital so
returned) necessary to discharge the Company's liabilities to all creditors
who extended credit or whose claims arose before such return.
2.5 No Priority. Except as specifically provided in this Agreement,
-----------
no Member may either demand a distribution from the Company or have the
right to withdraw from the Company or to demand the return of any Capital
Contribution or have priority over any other Member either as to the return
of any Capital Contribution or as to distributions.
2.6 No Third Party Beneficiaries. The contribution obligation of the
----------------------------
Members under this Article is not intended to create any obligation to
third party beneficiaries. No creditor may rely on that obligation unless
the Member against whom the obligation is asserted has expressly agreed in
writing that the creditor may do so.
ARTICLE 3 -- MANAGEMENT
-----------------------
3.1 Management Vested in Members and Not in Managers. Management of
------------------------------------------------
the Company is vested in the Members and not in one or more managers. Upon
the approval of the Members as provided by Section 4.3, the Company may
change its status from a limited liability company in which management is
vested in the members to one in which management is vested in one or more
managers, or vice versa.
3.2 Authorized Persons.
------------------
(a) All Members will be Authorized Persons if management of the
Company is vested in the Members, and, if management is vested in one or
more managers, all Managers will be Authorized Persons. The Members intend
Section 10.4 to apply to each reference to Authorized Person. If the
Company has more than one Authorized Person, each reference to decisions or
actions of the Authorized Person will require the agreement of either a
Majority-in-interest of the Members, if management is vested in the
Members, or a Majority-in-Number of the Managers, if management is vested
in Managers. The Authorized Person will devote such time and
<PAGE>
3
attention to the Company as such Authorized Person deems reasonable
necessary and advisable to manage the affairs of the Company to its best
advantage.
(b) The following offices shall be established, the incumbents of
which shall be Authorized Persons and serve at the pleasure and upon the
approval of the Majority-in-Interest Member, if the management is vested in
the members, or the majority-in-number of the Managers, if the management
is vested in Managers: The General Manager, Secretary, Treasurer, Assistant
Treasurer, Assistant Secretary and various other offices which may be
established from time to time by Members.
3.3 Management of Company Business. Subject to the Approval Rights of
------------------------------
the Members as provided by Section 4.3, the Authorized Person will have the
power, on behalf of the Company, to do all things necessary or convenient
to carry out the business and affairs of the Company, including the
following:
(a) to transfer or acquire property or the use of property;
(b) to enter into contracts and guaranties;
(c) to borrow money and to issue notes, bonds, and other obligations
and to secure any of the same by mortgage or pledge of Company property or
income;
(d) to lend money, to invest and reinvest the Company's funds, and to
receive and hold property as security for repayment;
(e) to open bank accounts and designate the number and identity of
the individuals authorized to write checks and make withdrawals of funds;
(f) to hire employees and appoint agents of the Company;
(g) to pay, collect, compromise, arbitrate, prosecute or defend legal
action with respect to, or otherwise adjust, claims or demands of or
against the Company;
(h) to indemnify any person;
(i) to participate in partnership agreements, joint ventures, or
other associations of any kind with any person or persons; and
(j) to execute, acknowledge and deliver any and all instruments
appropriate to the foregoing, and to apply Company assets.
3.4 Compensation. The Authorized Person will receive no compensation
------------
without the approval of the Members as provided by Section 4.3 other than
reasonable expenses incurred in managing the Company.
3.5 No Liability. Unless specifically assumed in writing, no Member
------------
or Manager will have personal liability for the liabilities of the Company.
The failure of
<PAGE>
4
the Company to observe any formalities or requirements relating to the
exercise of its powers or management of its business or affairs under this
Agreement or the Act will not result in the imposition of personal
liability on any Member or Manager. The Authorized Person will have no
liability to any member resulting from the disallowance or adjustment of
any deductions or credits in the income tax returns of the Company or the
Members.
3.6 Indemnification. The company will indemnify and hold harmless the
---------------
Authorized Person from and against any loss, expense, damage, or injury
suffered or sustained by any of them by reason of any acts, errors in
judgment, omissions, or alleged acts or omissions related to the business
of the Company, including any judgment, award, settlement, reasonable legal
fees, and other costs and expenses related to the defense of any actual or
threatened action, proceeding, or claim and including any payments made by
the Authorized Person, or by reason of any disallowance by any taxing
authority of any deduction taken on any Company tax return, provided such
acts, errors in judgment, omissions, or alleged acts or omissions upon
which such actual or threatened actions, proceedings, or claims are based
were in good faith, for a purpose reasonably believed to be in the best
interests of the Company and were not performed or omitted as a result of
fraud, gross negligence, or willful misconduct of the Authorized Person.
ARTICLE 4 -- RIGHTS AND DUTIES OF MEMBERS
-----------------------------------------
4.1 Representation and Warranties. Each Member, and in the case of an
-----------------------------
organization, the person executing the Agreement on behalf of the
organization, represents and warrants to the Company and each other Member
as follows:
(a) if that Member is an organization, that it is duly organized,
validly existing, and in good standing under the law of the jurisdiction of
its organization and that it has full power to execute the agreement and
agrees to perform its obligations under the Agreement; and
(b) that the Member is acquiring its Interest for its own account as
an investment and without an intent to distribute the interest.
4.2 Interests Not Registered Under the Securities Laws. Each Member
--------------------------------------------------
acknowledges that the Interests have not been registered under the
Securities Laws and may not be Transferred by the Member without
appropriate registration or the availability of an exemption from such
requirements.
4.3 Approval Rights. Each Member will have Approval Rights.
---------------
(a) Actions which require the approval of a Majority-in-interest of
the Members will include the following:
(i) a Capital Event;
<PAGE>
5
(ii) the designation of the liquidating trustee in a
dissolution and winding up of the Company;
(iii) the change of the Company's status from member-managed to
manager-managed and vice versa; or
(iv) if the Company is manager-managed, the addition,
replacement or removal of a Manager.
(b) Actions which require the approval of all Members will include
the following:
(i) the admission of a new Member;
(ii) any additional mandatory Capital Contributions;
(iii) the expulsion of a Member;
(iv) a voluntary withdrawal of a Member;
(v) any of the approvals described in paragraph (d) of the
definition for Event of Withdrawal;
(vi) a voluntary dissolution of the Company;
(vii) a merger or consolidation with another person;
(viii) authorization for any transaction, agreement or action
unrelated to the Company's purpose as set forth in the Articles of
Organization, that otherwise contravenes this Agreement;
(ix) the continuation of the Company after an Event of
Withdrawal; or
(x) any amendment to this Agreement.
Unless otherwise required by this Agreement or by law, a Majority-in-
interest of the Members may approve any other matter submitted for the
approval of the Members.
4.4 Admission of Additional Members. Upon the approval of the Members
-------------------------------
as provided by Section 4.3, the Company may admit new Members and determine
the Capital Contributions for such new Members. The person so admitted will
become a Member after making any required Capital Contribution and after
signing this Agreement.
4.5 Expulsion. Upon approval as provided by Section 4.3, the other
---------
Members may expel a Member who commits fraud, gross negligence, or willful
<PAGE>
6
misconduct having a material adverse affect on the Company or on any of the
other Members.
4.6 Restrictions. No Member will Transfer in whole or in part any
------------
Interest to an Assignee until the Company receives from the proposed
Assignee such information and agreements that the Company may reasonably
require, including any taxpayer identification number and any agreement
that federal, state or local tax laws may require and the proposed
Assignee's written agreement to be bound by all of the terms of the
Agreement as an Assignee, and, if admitted as a Member, as a Member. Unless
a Transfer occurs by reason of or incident to the death, dissolution,
divorce, liquidation, merger or termination of the transferor Member and
the transferee is a Permitted Assignee, no Member will Transfer in whole or
part any Interest to an Assignee until the Company receives an opinion of
Counsel to the Company that any such Transfer, alone or when combined with
other transactions, would not result in a termination of the Company within
the meaning of Code Section 708 (or if so that no material adverse tax
consequences would result to the Company or the Members by reason of such
termination), the Company's losing its status as a partnership for income
tax purposes or the taxation of the Company as a publicly-traded
partnership for income tax purposes. An attempted Transfer in violation of
this Section is void.
4.7 Rights of an Assignee. Unless and until admitted as a Member
---------------------
under Section 4.4, an Assignee (including a permitted Assignee) will have
no Approval Rights ( or Management Rights, if management is vested in the
Members). An Assignee that has not become a Member will receive, to the
extent assigned, the share of distributions and profits, including
distributions representing the return of contributions, to which the
assignor would otherwise be entitled with respect to the assigned interest.
4.8 Voluntary Withdrawal of a Member. A Member may only voluntarily
--------------------------------
withdraw from the Company upon giving ninety (90) days' prior written
notice of withdrawal to the other Members. If the withdrawing Member fails
to receive the written approval of all Members as provided by Section
4.3(b), then such voluntary withdrawal will violate this Agreement for the
purposes of the Act. After such voluntary withdrawal, the withdrawn Member
will have the rights of an Assignee under Section 4.7. If the Company
dissolves and winds up its business and affairs as a result of a voluntary
withdrawal not approved by all Members, the Company may reduce any
distributions to which such Member would be otherwise entitled by the
damages sustained by the Company as a result of such dissolution and
winding up. If the Company continues its business and affairs after a
voluntary withdrawal not approved by all Members, the Company will within a
reasonable time make a distribution to the withdrawn Member in an amount
equal to fifty percent (50%) of the fair market value of the withdrawn
Member's Interest as of the date of withdrawal as calculated by the Company
in its reasonable discretion. In making distributions under the preceding
sentence, the following rules will apply: (a) the Company will exclude the
value of goodwill in determining fair market value; (b) the Company may
reduce the amount payable to the withdrawn Member by any damages suffered
as a result of the voluntary withdrawal; and (c) the Company may defer
distributions to the
<PAGE>
7
withdrawn Member until such time as making them will not result in
unreasonable hardship to the Company.
ARTICLE 5 -- MEETINGS: APPROVALS WITHOUT A MEETING
--------------------------------------------------
The Authorized Person's or the Members may take any action or vote at
a meeting at the Company's principal of lice after ten (10) days' prior
written notice to all the Authorized Persons or Members eligible to attend,
as appropriate, given by a Majority-in-Number of the Authorized Persons or
Members eligible to attend, or without a meeting if the Authorized Persons
or Members otherwise required to act or approve the action to make it
effective sign a written approval of the action so taken (eg., the Company
may taken any action requiring the approval of a Majority-in-Interest of
the Members by a written approval of a Majority-in-interest of the Members
and without unanimous written approval). Any action required or permitted
to be taken at any meeting of the Members may be taken without a meeting if
the Majority-in-Interest Member consents thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of the
Member.
ARTICLE 6 -- OTHER BUSINESS VENTURES
------------------------------------
Any Member, Authorized Person, or Manager may engage in or possess an
interest in other business ventures of every nature and description,
independently or with others, and neither the Company nor any of the
Members, Authorized Persons, or Managers will have any right by virtue of
this Agreement in or to such independent ventures or to the income or
profits derived therefrom.
ARTICLE 7 -- RECORDS, ACCOUNTING, TAX MATTERS
---------------------------------------------
7.1 Books and Records of Account. Authorized Person will keep proper
----------------------------
and complete records and books of account in which it will records all
transactions and other matters relative to the Company's business in
accordance with generally accepted accounting principles, consistently
applied, or in accordance with such other accounting method customarily
used by businesses similar to the Company. As required by the Act, the
Company will keep at its principal place of business the following:
(a) a current and a past list, setting forth the full name and last
known mailing address of each Member and Manager, if any, in alphabetical
order;
(b) a copy of the Articles of Organization and all articles of
amendment thereto, together with executed copies of any powers of attorney
pursuant to which any articles have been executed;
(c) copies of Company's federal, state and local income tax returns
and reports, if any, for the three (3) most recent years or, if such
returns and reports were not prepared for any reason, copies of the
information and records provided to, or
<PAGE>
8
which should have been provided to, the Members to enable them to prepare
their federal, state and local tax returns for such period;
(d) copies of this Agreement, and all amendments thereto, and copies
of any written operating agreements no longer in effect;
(e) copies of any financial statements of the Company for the three
(3) most recent years;
(f) copies of any written promise by a Member to make a Contribution
to the Company;
(g) copies of any written approvals by the Members to the admission
of any person as a Member;
(h) copies of any written approvals by the Members to continue the
Company upon an Event of Withdrawal;
(i) copies of any other instruments or documents reflecting matters
required to be in writing pursuant to this Agreement; and
(j) any other records required by the Act.
7.2 Data Storage. The Company may compile the data for any books,
------------
accounts, or records required by this Agreement in any form (including in
electronic media) from which a person may retrieve such information into a
readily usable form.
7.3 Filing of Tax Reports. The Authorized Person will submit to the
---------------------
official or agency administering the tax laws of any applicable
jurisdiction any information, reports or other documents required or
requested to be filed, as and when due. The Company will bear the cost of
preparing such information, reports or other documents. Within seventy-five
(75) days after the close of each taxable year of the Company, the
Authorized Person prepare or cause to be prepared and delivered to each
Member a report containing all Company information necessary to prepare
such Member's federal income tax returns.
7.4 Tax Matters Partner. PHCI shall be the Tax Matters Partner of the
-------------------
partnership within the meaning of Code Section 6231 (a)(7). The Tax Matters
Partner may (a) represent the Company and its Members before federal,
state, and local taxing authorities, and before courts of competent
jurisdiction, in tax matters affecting the Company, the Members in their
capacity as members, or both, or (b) execute agreements or other documents
relating to or affecting such tax matters including (i) agreements or
consents to extend the period of limitations on assessment of deficiencies
with respect to "partnership items" or "affected items," as such terms are
defined in Code Section 6231, and (ii) other agreements or documents that
bind the Members with respect to such tax matters or otherwise affect the
rights of the Company, the Members, or both. The Tax Matters Partner will
have the sole right, in
<PAGE>
9
its discretion, to make any election for the Company permitted by the Code;
provided that any Member or Assignee may unilaterally require the Company
to make a Code Section 754 election if such Member or Assignee agrees to
pay all expenses incurred in connection with such election. The Tax Matters
Partner may retain accountants, attorneys, and other professionals to
assist him in such matters. The Company will pay for or reimburse the Tax
Makers Partner for all expenses incurred in performing the duties described
in this Section.
7.5 Fiscal and Tax Year. The fiscal and taxable year of the Company
-------------------
will end on the 30th day of September.
7.6 Accounts. The Company will deposit its funds in such bank account
--------
or accounts, or invested in such interest-bearing investments established
and maintained in the name of the Company only, as designated by the
Authorized Person. Only the Authorized Person or agents of the Authorized
Person may make a withdrawal from any account or investment. The Authorized
Person will not commingle Company funds with those of any other person.
7.7 Tax Status. Solely for income tax purposes, the Company will be
----------
subject to all provisions of Subchapter K of Chapter 1 of Subtitle A of the
Code; provided, however, the filing of partnership tax returns with any
jurisdiction will not be construed to expand the obligations or liabilities
of the Company or its Members. No Member will take any action that would
cause the Company to be excluded from the application of any provision of
Subchapter K of Chapter 1 of Subtitle A of the Code, or any similar
provision of any state tax laws. The Members intend this Agreement to be
construed as appropriate to classify the Company as a partnership for tax
purposes. The Members expressly do not intend of form a partnership under
the Uniform Partnership Law or the Uniform Limited Partnership Act. The
Members do not intend to be partners one to another, or partners as to any
third party.
ARTICLE 8 -- DISTRIBUTION AND ALLOCATION RULES
----------------------------------------------
8.1 Cash Available for Distribution. Except as otherwise provided in
-------------------------------
Section 9.3, at such times as the Authorized Person will designate, the
Company will distribute Cash Available for Distribution in accordance with
the Members' respective Proportionate Shares.
8.2 Cash from Sales or Refinancing. Except as otherwise provided in
------------------------------
Section 9.3, at such times as the Authorized Person designates, the Company
will distribute Cash from Sales or Refinancing in accordance with Members'
respective Proportionate Shares.
8.3 Allocations of Income, Gain, and Profit. After making the Tax
---------------------------------------
Regulation Allocations, the Company will allocate Company net taxable
income, including each item of Company income, gain, and profit required to
be separately stated under Code Section 702, in accordance with the
Members' respective Proportionate Shares.
<PAGE>
10
8.4 Allocations of Loss and Deduction. After making the Tax
---------------------------------
Regulation Allocations, the Company will allocate Company net taxable loss,
including each item of Company loss and deduction required to be separately
stated under Code Section 702, in accordance with the Members' respective
Proportionate Shares.
8.5 Tax Regulation Allocations. The Company will make the following
--------------------------
allocations in the following order:
(a) Company Minimum Gain Chargeback. If Company Minimum Gain has
-------------------------------
a net decrease during any Company taxable year, the Company will allocate
items of income and gain for such year (and, if necessary, for subsequent
years) to each Member in the amounts required by Regulations Sections
1.704-2(f) and 1.704-2(g)(2).
(b) Member Nonrecourse Debt Minimum Gain Chargeback. If Member
-----------------------------------------------
Nonrecourse Debt Minimum Gain has a net decrease during any Company taxable
year, the Company will allocate items of income and gain for such year
(and, if necessary, for subsequent years) to each Member who has a share of
the Member Nonrecourse Debt Minimum Gain as determined in accordance with
Regulations Section 1.704-2(i).
(c) Qualified Income Offset. If a Member unexpectedly receives an
-----------------------
adjustment, allocation, or distribution described in Regulations Sections
1.704-l(b)(2)(ii)(d)(4), (5), or (6), the Company will allocate to the
Member items of Company income and gain (consisting of a pro rata portion
of each item of Company income, including gross income, and gain for such
year) in an amount and manner sufficient to eliminate the Capital Account
Deficit, if any, caused by such adjustment, allocation, or distribution, as
quickly as possible as required by Regulations Section 1.704-
l(b)(2)(ii)(d).
(d) Allocation of Nonrecourse Deductions. The Company will
------------------------------------
allocate each Nonrecourse Deduction, as defined in Regulations Section
1.704-2(b)(1) and determined in accordance with Regulations Section 1.704-
2(c), in the same manner in which the Company allocates net taxable loss.
(e) Allocation of Member Nonrecourse Deductions. The Company will
-------------------------------------------
allocate each Member Nonrecourse Deduction to the Members who bear the
economic risk of loss with respect to the liability to which such Member
Nonrecourse Deductions are attributable under Regulations Section 1.704-
2(i)(1).
(f) Code Section 704(c) and Re-evaluation Allocation. If any
------------------------------------------------
Member contributes property (other than money) to the Company (or is deemed
so to contribute under applicable income tax principles) and the fair
market value of such property at the time it is contributed differs from
the contributing Member's adjusted tax basis therein, or if the property of
the Company is revalued pursuant to Regulations Section 1.704-l(b)(iv)(f),
items of income, gain, profit, depreciation, cost recovery and cost
depletion relating to such property shall be allocated pursuant to
<PAGE>
11
Treas. Reg. section 1.704-3(b) (the "Traditional Method"), to the extent
they are applicable. Allocations pursuant to this subsection are solely for
purposes of federal, state and local taxes and shall not affect or in any
way be taken into account in computing any Member's Capital Account or
share of profits, losses, similar items or distributions pursuant to any of
the provisions of this Agreement.
(g) Allocation of Cancellation of Debt Income. The Company will
-----------------------------------------
allocate any cancellation of debt income realized by the Company among the
Members in proportion to the allocation among the Members (under Code
Section 752) of the debt to which such income is attributable.
(h) Allocations to Reflect Changing Interests. If (i) a person
-----------------------------------------
becomes a new Member after the first day of the Company's then-current
taxable year, (ii) the Interest of any Member increases or decreases after
the first day of the Company's then-current taxable year, or (iii) a member
Transfers the Member's Interest after the first day of the Company's then-
current taxable year, unless such disposition and all other dispositions on
the same day and within the twelve-month period prior to that day result in
a termination of the Company for federal income tax purposes, the Company
will not close its books until the end of the taxable year, at which time
the Company will determine the Members' and former Members' respective
shares of profits and losses by applying (1) a ratio having a numerator
equal to the number of days during the year that each person was a Member
and a denominator equal to the total number of days in the Company's
taxable year and (2) taking into account each Member's Interest on each day
such Member held an Interest. These rules will apply whether or not as a
result of such decrease or disposition, the transferee becomes a new or
substituted Member or whether or not the transferor remains a Member.
8.6 Curative Allocations. The Company intends the Tax Regulation
--------------------
Allocations to comply with Regulation Sections 1.704-l(b) and 1.704-2. The
Tax Regulation Allocations may not be consistent with the manner in which
the Members intend to divide distributions. Accordingly, the Authorized
Person, to the extent not inconsistent with Code Section 704(b), may
allocate income, gain, profit, loss, deduction and other items among the
Members so as to effect the economic objectives of the Members, and to
offset any distortion of such objectives otherwise resulting from the Tax
Regulation Allocations. In general, the Members anticipate that the
Authorized Person will accomplish this by making special allocations of
other items of income, gain, profit, loss, and deduction among the Members
so that the net amount of the Tax Regulation Allocations and such special
allocations to each such Member is zero. This Section 8.6 is not intended
to, and the Company does not, adopt the traditional method with curative
allocations specified in Treas. Reg. Section 1.704-3(c).
ARTICLE 9 -- DISSOLUTION. LIQUIDATION AND WINDING UP
----------------------------------------------------
9.1 Dissolution and Winding Up. The dissolution of the Company will
--------------------------
occur upon any of the following events:
<PAGE>
12
(a) the happening of the events specified in this Agreement or in the
Articles of Organization as grounds for dissolution, including the
expiration of the term provided for in Section 1.4;
(b) the written approval of the Members as provided by Section 4.3;
(c) an Event of Withdrawal of a Member or a Capital Event unless the
Company still has at least one remaining Member and the business of the
Company is continued either under a right to continue stated in the
Articles of Organization and in this Agreement, or by the approval of the
remaining Members as provided by Section 4.3 within ninety (90) days after
the Event of Withdrawal;
(d) entry of a decree of dissolution under Subchapter VIII of the
Act; or
(e) when the Company is not the surviving entity in a merger or
consolidation.
Dissolution will take effect on the date of the event giving rise to
the dissolution, but the Company will not terminate until its assets have
been distributed pursuant to Section 9.3.
9.2 Liquidating Trustee. In a dissolution and winding up of the
-------------------
Company, the liquidating trustee approved by the Members as provided by
Section 4.3, will proceed diligently to wind up the affairs of the Company
and distribute its assets pursuant to Section 9.3. During the interim, the
liquidating trustee will continue to exercise the rights and operate the
Company consistently with the liquidation thereof, exercising all the power
and authority vested by the Act.
9.3 Liquidation and Termination. As expeditiously as possible after
---------------------------
the dissolution of the Company:
(a) The liquidating trustee will cause the Company's accountants to
make a complete accounting of the assets, liabilities and operations of the
Company as of the last day of the month in which the dissolution occurs.
(b) The liquidating trustee will pay all liabilities of the Company
(including loans from Members but excluding Member Capital Contributions
and Member Capital Accounts) and establish a Reserve, if the trustee deems
a Reserve necessary, for payment of future or contingent Company
obligations.
(c) The Company will allocate its estimated net taxable loss for the
year and any loss realized by the Company on liquidation, including any
book adjustment loss under paragraph (e) of this Section, in accordance
with Article 8 and its estimated net taxable gain for the year and any gain
realized upon liquidation, including any book adjustment gain under
paragraph (e) of this Section, in accordance with Article 8.
<PAGE>
13
(d) The liquidating trustee will distribute the balance of the
proceeds of the liquidation after allocating gain or loss under paragraph
(b) of this Section among the Members who or which have positive balances
in their Capital Accounts in proportion to and to the extent of their
positive Capital Account balances. Distributions of Company assets may be
made in Cash or in kind, in the sole and absolute discretion of the
liquidating trustee, but, if in kind, they will be deemed distributed at
their fair market values on the date of distribution (for federal income
tax purposes).
(e) If any Company property is distributed to the Members in kind,
for purposes of reflecting the allocation of gain or loss from liquidation
in the Members' Capital Accounts, the Company will make a book adjustment
with respect to the property distributed in kind as provided in the
Regulations under Code Section 704(b).
(f) All salable assets of the Company may be sold in connection with
any liquidation at public or private sale, at such price and upon such
terms as the liquidating trustee, in his, her or its sole discretion, may
deem advisable. Any Member, Manager, or Authorized Person and any person
related to any Member, Manager, or Authorized Person may purchase assets at
such sale.
ARTICLE 10 -- GENERAL
---------------------
10.1 Amendment. The Members may only amend this Agreement in whole or
---------
in part by a written agreement executed in the same manner as, and
specifically referring to, this Agreement.
10.2 Benefit. This Agreement binds and benefits the parties, their
-------
heirs, legal representatives, successors and assigns.
10.3 Computation of Time. In computing any period of time, the day of
-------------------
the act, event or default from which the designated period time begins to
run will not be included. The last day of the period so computed will be
included, unless it is a Saturday, Sunday, or legal holiday, and, if so,
the period will run until the end of the next day not a Saturday, Sunday,
or legal holiday.
10.4 Construction. Unless the context otherwise requires, when used
------------
in the Agreement, the singular includes the plural and vice versa and the
masculine includes the feminine (and neuter) and vice versa. The words
"include", "includes", and "including" will be deemed to be followed by the
phrase "without limitation". Captions are inserted for convenience only and
will have no legal effect. Each reference to a Code Section shall be deemed
to be followed by the words "and/or the Regulations thereunder." This
Agreement is to be deemed to have been prepared jointly by the parties
hereto, and any uncertainty or ambiguity existing herein, if any, shall not
be interpreted against any party, but shall be interpreted according to the
application of the rules of interpretation for arm's length agreements. The
substantive law of Missouri will govern this Agreement without regard to
its choice of laws rules.
<PAGE>
14
10.5 Entire Agreement. This instrument constitutes the entire
----------------
agreement among the parties to this Agreement. The parties have made no
representations, warranties, understandings or agreements other than those
expressly included in this Agreement.
10.6 Equitable Relief. The Company and each Member will have the
----------------
right to seek and obtain equitable relief to enforce the Agreement.
10.7 Execution. The parties may execute this Agreement in any number
---------
of counterparts, and each counterpart will, for all purposes, be deemed an
original instrument, but all such counterparts together will constitute but
one and the same Agreement. Facsimile transmission of any original signed
counterpart and retransmission of any signed facsimile transmission, will
be the same as transmission of an original counterpart. At the request of
any party, the parties will confirm facsimile transmitted signatures by
signing an original Agreement.
10.8 Exhibits. All exhibits referred to in this Agreement are
--------
attached hereto and incorporated herein by this reference.
10.9 Expenses of Prevailing Party. The prevailing party in any
----------------------------
litigation in connection with this Agreement may recover legal fees and
litigation costs incurred in prosecuting and/or defending such litigation
from the nonprevailing party.
10.10 Further Assurances. Each of the parties to this Agreement
------------------
agrees to execute, acknowledge, deliver, file, record and publish such
further certificates, instruments, agreements and other documents, and to
take all such further action required by law or necessary in furtherance of
the Company's purposes and the objectives and intentions underlying this
Agreement and not inconsistent with the terms of this Agreement.
10.11 Invalidity of Provisions. If any provision in this Agreement is
------------------------
or shall become invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
agreement and any other application thereof shall not in any way be
affected or impaired thereby; provided that if permitted by applicable law,
any invalid, illegal or unenforceable provision may be considered in
determining the intent of the parties with respect to other provisions of
this Agreement.
10.12 No Waiver. The failure or delay of any party to this Agreement
---------
in requiring strict performance by any other party of any covenant of this
Agreement shall not constitute a waiver of the covenant or of the right to
require strict performance of the covenant.
10.13 Notices. A party may only effect a notice, approval or other
-------
communication required or permitted under this Agreement by giving such
notice in writing, postage or charges paid, and addressed to the address
following the person's name of the signature page hereto, and delivering it
in person, by certified mail (return
<PAGE>
15
receipt requested), or by overnight express delivery service. Delivery by
messenger or courier will constitute personal delivery. Members may change
their addresses for the purpose of this Section by notice to the Company at
its principal office in the manner provided in this Section. Such notice
will become effective two (2) days after it is deposited in the mail,
postage prepaid, or one (1) day after it is consigned to an overnight
delivery service, or upon receipt of personal delivery.
ARTICLE 11 -- DEFINITIONS
-------------------------
The definitions below govern this Agreement unless the context
unambiguously requires otherwise:
11.1 "Act" means the Delaware Limited Liability Company Act, (S)18-
101, et seq., as amended from time to time, and any successor statute, as
applicable to the Company.
11.2 "Agreement" means this Operating Agreement, as amended from time
to time.
11.3 "Approval Rights" means the rights of a Member to vote, approve,
or consent to matters described in Section 4.3.
11.4 "Articles of Organization" means the Certificate of Formation
referred to in section 18-201 of the Act, filed with the Delaware Secretary
of State for the purpose of forming the Company, as the same may be amended
or restated from time to time as provided in the Act.
11.5 "Assignee" means a transferee of an interest who has not become
a Member.
11.6 "Authorized Person" means a Member, if management of the Company
is vested in the Members, or a Manager, if management is vested in
Managers.
11.7 "Bankruptcy" means the entry of an order for relief by the court
in a proceeding under the United States Bankruptcy Code, Title 11, U.C.C.,
as amended, or its equivalent under a state insolvency act or a similar law
of other jurisdictions.
11.8 "Capital Account" means an account maintained for each Member
pursuant to Regulations Section 1.704-l(b)(2)(iv).
11.9 "Capital Account Deficit" means the debit balance in a Member's
Capital Account at the end of a taxable year, after (a) crediting the
account with (i) the amount, if any, of the debit balance the Member must
restore under this Agreement, and (ii) the amount of the debit balance the
Member is deemed to be obligated to restore under Regulations Section
1.704-2(g)(1) and 1.704-2(i)(5), and (b) debiting the account with the
items described in Regulations Section 1.704-l(b)(2)(ii)(d)(4), (5), and
(6).
<PAGE>
16
11.10 "Capital Contributions" means, with respect to any Member, the
amount of money and the fair market value (net of each liability assumed by
the Company in connection with such contribution and net of each liability
subject to which the Company received such contribution) of any property
(other than money) contributed to the Company as provided in Article 2.
11.11 "Capital Event" means a Transfer of all or substantially all of
the Company's property, including a foreclosure or condemnation.
11.12 "Cash" means money and equivalents, such as checks, but only
when collected, and bank transfers.
11.13 "Cash Available for Distribution" means all sums received in
Cash, or converted to Cash by the Company during any fiscal period,
provided by operations, excluding Capital Contributions, Cash from Sales or
Refinancing or loans or advances by Members to the Company, but including
sums released from Reserves, less Expenses.
11.14 "Cash from Sales or Refinancing" means the net Cash realized by
the Company from a Capital Event, and from any refinancing of any property
or interest therein, real or personal, acquired directly or indirectly by
the Company or a portion thereof after retirement of applicable mortgage
debt and other debt and all expenses related to the transaction and after
an allowance for reserves for repairs, replacements, contingencies and
anticipated obligations (including debt service and costs of improvements)
as determined by the Authorized Person in it sole discretion less Expenses.
Cash from Sales or refinancing shall include all principal and interest
payments with respect to any note or other obligation received by the
Company in connection with Sales and other Transfers of property by the
Company (other than in the ordinary course of business).
11.15 "Code" means the Internal Revenue Code of 1986, as amended from
time to time (including any successor statute or statutes constituting the
United States tax laws), as applicable to the Company and the Members.
11.16 "Company" means a Delaware Limited Liability company governed
by the Agreement and the Act, having the name specified in Section 1.2.
11.17 "Company Minimum Gain" means an amount computed as described in
Regulations Section 1.704-2(d).
11.18 "Contribution" means Cash, other property, the use of property,
services rendered, a promissory note or other binding obligation to
contribute cash or property or perform services or any other valuable
consideration transferred by a person to the Company as a prerequisite for
membership and any subsequent transfer to the Company by a person as a
Member.
<PAGE>
17
11.19 "Effective Date" means the date of the filing of the Articles
of Organization.
11.20 "Event of Withdrawal" means any of the following:
(a) a Member voluntarily withdraws from the Company;
(b) except as provided in Section 4.6, a Member assigns
all of the Member's interest;
(c) a Member is expelled from the Company;
(d) unless approved by the Members as provided by Section
4.3, a Member: (i) makes an assignment for the
benefit of creditors; (ii) is the subject of a
Bankruptcy; (iii) files a petition or answer seeking
any reorganization, arrangement, composition,
readjustment, liquidation, or similar relief under
any statute, law or regulation or files an answer or
other pleading admitting or failing to contest the
material allegations of a petition filed in such a
proceeding; or (iv) seeks, approves of or acquiesces
in the appointment of a trustee, receiver or
liquidator of the Member or of all or any substantial
part of the Member's property;
(e) one hundred twenty (120) days after the start of any
proceeding against a Member seeking reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law
or regulation, the proceeding has not been dismissed,
or if within ninety (90) days after the appointment
of a trustee, receiver or liquidator of the Member or
of all or any substantial part of the Member's
property, without the Member's approval, the
appointment is not vacated or stayed, or within
ninety (90) days after the expiration of any such
stay, the appointment is not vacated;
(f) if a Member is a natural person: (i) the Member's
death; or the entry by a court of competent
jurisdiction adjudicating the member incompetent to
manage the Member's person or estate;
(g) if a Member is a trust, the termination of the trust
or a distribution of its entire interest but not
merely the substitution of a new trustee;
<PAGE>
18
(h) if a Member is a general or limited partnership, the
dissolution and commencement of winding up of the
partnership or a distribution of its entire interest;
(i) if a Member that is a corporation, the filing of
articles of dissolution, or their equivalent, for a
corporation or revocation of its charter or a
distribution of its entire interest;
(j) if a Member is an estate, the distribution by the
fiduciary of the estate's entire interest; or
(k) if a Member is a limited liability company, the
filing of articles of dissolution or termination, or
their equivalent, for the limited liability company
or a distribution of its entire interest.
11.21 "Expenses" means for any fiscal period, (a) the amount of Cash
disbursed in the period in order to operate the Company (including capital
expenditures and debt service) and to pay expenses of the Company
(excluding expenditures in connection with Capital Events) and (b) amounts
set aside for the period for working capital and to pay taxes, insurance
and other costs and expenses incident to the operation of the Company
including Reserves.
11.22 "Immediate Family" means the Member's spouse, children
(including natural, adopted and stepchildren), grandchildren and parents.
11.23 "Interest" or "Member's Interest" means a Member's share of the
profits and losses of the Company and the right to receive distributions of
the Company assets.
11.24 "Limited Liability Company" means a company organized and
existing under the Act.
11.25 "Majority-in-Interest" means those Members whose aggregate
Proportionate Shares exceed fifty percent (50%).
11.26 "Management Rights" means the right to participate in the
management of the Company, including the rights described in Article 3.
11.27 "Manager" means if management of the Company is vested in one
or more managers, the person or persons designated, appointed or elected as
such pursuant to the Act.
11.28 "Member" means any person that signs in person or by an
attorney-in-fact, or otherwise is a party to the Agreement at the time the
Company is formed and is identified as a Member in this Agreement and any
person who is
<PAGE>
19
subsequently admitted as a Member, until an Event of Withdrawal occurs with
respect to such person.
11.29 "Member's Nonrecourse Debt Minimum Gain" means an amount
computed as required by Regulations Section 1.704-2(i)(3).
11.30 "Member's Interest" means a member's share of the profits and
losses of the Company and the right to receive distributions of the Company
assets.
11.31 "Organization" means any person other than an individual.
11.32 "Permitted Assignee" means any member of the Member's Immediate
Family, the estate of the Member or any Member of the Member's Immediate
Family, a trust for the sole benefit of the Member and/or any Member of the
Member's Immediate Family, or any other organization controlled by such
Member or by members of the Member's Immediate Family.
11.33 "Person" includes individuals, partnerships, domestic or
foreign limited partnerships, domestic or foreign limited liability
companies, domestic or foreign corporations, trusts, business trusts, real
estate investment trusts, estates and other associations or business
entities.
11.34 "Proportionate Share" means the percentages provided for each
Member in Exhibit A, as amended from time to time, or as otherwise adjusted
to reflect changes in such Member's Capital Contributions relative to the
aggregate Capital Contributions of all Members.
11.35 "Regulations" means the Income Tax Regulations promulgated
under the Code, as amended from time to time, including corresponding
provisions of succeeding regulations.
11.36 "Reserves" means any sums which the Authorized Person or
liquidating trustee sets aside for the payment of taxes, future expenses
(including capital expenditures) or any other purposes as the Authorized
Person or liquidating trustee, in its sole discretion, determines to be
desirable for the Company.
11.37 "Securities Laws" means all applicable federal and state
securities laws, including the Securities Act of 1933, as amended, and any
regulations promulgated thereunder.
11.38 "Tax Matters Partner" has the meaning contained in Code Section
6231(a)(7).
11.39 "Tax Regulation Allocations" means the allocations described in
Section 8.5.
<PAGE>
20
11.40 "Transfer" includes any sale, assignment, disposition,
exchange, mortgage, pledge, grant, hypothecation, or other transfer,
absolute or as security or encumbrance (including transfers by operation of
law).
IN WITNESS WHEREOF, the Members have executed this Operating Agreement
as of the Effective Date.
"MEMBERS"
PEABODY HOLDING COMPANY, INC.
By: T.S. HILTON
-----------------------------
Vice President
Address: 701 Market Street
Suite 700
St. Louis, MO 63101-1826
PEABODY DEVELOPMENT COMPANY
By: [Executed]
-----------------------------
President
Address: 701 Market Street
Suite 820
St. Louis, MO 63101-1826
<PAGE>
21
EXHIBIT A -- CAPITAL CONTRIBUTIONS
----------------------------------
<TABLE>
<S> <C> <C>
Member Initial Capital Proportionate
Name and address Contribution Share
Peabody Holding Co., Inc. Cash and Notes 72%
701 Market Street valued at $93,327,000
Suite 700
St. Louis, MO 63101 - 1826
Peabody Development Co. Real Estate Interests 28%
701 Market Street valued at $36,000,000
Suite 700
St. Louis, MO 63101-1826
</TABLE>
<PAGE>
EXHIBIT 4.1
Execution Copy
================================================================================
P&L COAL HOLDINGS CORPORATION
SERIES A AND SERIES B
8-7/8% SENIOR NOTES DUE 2008
SENIOR NOTE INDENTURE
Dated as of May 18, 1998
STATE STREET BANK AND TRUST COMPANY
Senior Note Trustee
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Senior
Note Indenture Section
310 (a)(1)............................................................7.10
(a)(2) ...............................................................7.10
(a)(3)................................................................N.A.
(a)(4)................................................................N.A.
(a)(5)................................................................7.10
(i)(b)................................................................7.10
(ii)(c)...............................................................N.A.
311(a)................................................................7.11
(b)...................................................................7.11
(iii)(c)..............................................................N.A.
312 (a)...............................................................2.05
(b)...................................................................12.03
(iv)(c)...............................................................12.03
313(a)................................................................7.06
(b)(2)................................................................7.07
(v)(c)................................................................7.06;
12.02
(vi)(d)...............................................................7.06
314(a)................................................................4.03;
12.02
(c)(1)................................................................12.04
(c)(2)................................................................12.04
(c)(3)................................................................N.A.
(vii)(e)..............................................................12.05
(f) .................................................................NA
315 (a)...............................................................7.01
(b)...................................................................7.05,
12.02
(A)(c)................................................................7.01
(d)...................................................................7.01
(e) .................................................................6.11
316 (a)(last sentence)................................................2.09
(a)(1)(A).............................................................6.05
(a)(1)(B).............................................................6.04
(a)(2)................................................................N.A.
(b)...................................................................6.07
(B)(c)................................................................2.12
317 (a)(1)............................................................6.08
(a)(2)................................................................6.09
(b)...................................................................2.04
318 (a)...............................................................12.01
(b)...................................................................N.A.
(c) .................................................................12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Senior Note Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
Section 1.01. Definitions................................................ 1
Section 1.02. Other Definitions.......................................... 19
Section 1.03. Incorporation by Reference of Trust Indenture Act.......... 19
Section 1.04. Rules of Construction...................................... 20
ARTICLE 2.
THE SENIOR NOTES.............................. 20
Section 2.01. Form and Dating............................................ 20
Section 2.02. Execution and Authentication............................... 21
Section 2.03. Registrar and Paying Agent................................. 22
Section 2.04. Paying Agent to Hold Money in Trust........................ 22
Section 2.05. Holder Lists............................................... 22
Section 2.06. Transfer and Exchange...................................... 23
Section 2.07. Replacement Senior Notes................................... 35
Section 2.08. Outstanding Senior Notes................................... 35
Section 2.09. Treasury Senior Notes...................................... 35
Section 2.10. Temporary Senior Notes..................................... 35
Section 2.11. Cancellation............................................... 36
Section 2.12. Defaulted Interest......................................... 36
Section 2.13. CUSIP Numbers.............................................. 36
ARTICLE 3.
REDEMPTION AND PREPAYMENT......................... 36
Section 3.01. Notices to Senior Note Trustee............................. 36
Section 3.02. Selection of Senior Notes to Be Redeemed................... 37
Section 3.03. Notice of Redemption....................................... 37
Section 3.04. Effect of Notice of Redemption............................. 38
Section 3.05. Deposit of Redemption Price................................ 38
Section 3.06. Senior Notes Redeemed in Part.............................. 38
Section 3.07. Optional Redemption........................................ 38
Section 3.08. Mandatory Redemption....................................... 39
Section 3.09. Offer to Purchase by Application of Excess Proceeds........ 39
Section 3.10 Special Mandatory Redemption............................... 41
i
<PAGE>
ARTICLE 4.
COVENANTS................................. 41
Section 4.01. Payment of Senior Notes.................................... 41
Section 4.02. Maintenance of Office or Agency............................ 41
Section 4.03. Reports.................................................... 42
Section 4.04. Compliance Certificate..................................... 42
Section 4.05. Taxes...................................................... 43
Section 4.06. Stay, Extension and Usury Laws............................. 43
Section 4.07. Restricted Payments........................................ 43
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries............................................. 47
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock. 48
Section 4.10. Asset Sales................................................ 51
Section 4.11. Transactions with Affiliates............................... 52
Section 4.12. Liens...................................................... 53
Section 4.13. Business activities........................................ 53
Section 4.14. Corporate Existence........................................ 53
Section 4.15. Offer to Repurchase Upon Change of Control................. 53
Section 4.16. Additional Senior Subsidiary Guarantees.................... 54
Section 4.17. Payments for consents...................................... 54
ARTICLE 5.
SUCCESSORS................................. 55
Section 5.01. Merger, Consolidation, or Sale of Assets................... 55
Section 5.02. Successor Corporation Substituted.......................... 55
ARTICLE 6.
DEFAULTS AND REMEDIES............................ 56
Section 6.01. Events of Default.......................................... 56
Section 6.02. Acceleration............................................... 57
Section 6.03. Other Remedies............................................. 58
Section 6.04. Waiver of Past Defaults.................................... 58
Section 6.05. Control by Majority........................................ 59
Section 6.06. Limitation on Suits........................................ 59
Section 6.07. Rights of Holders of Senior Notes to Receive Payment....... 59
Section 6.08. Collection Suit by Senior Note Trustee..................... 59
Section 6.09. Senior Note Trustee May File Proofs of Claim............... 60
Section 6.10. Priorities................................................. 60
Section 6.11. Undertaking for Costs...................................... 61
ARTICLE 7.
SENIOR NOTE TRUSTEE............................. 61
Section 7.01. Duties of Senior Note Trustee.............................. 61
Section 7.02. Rights of Senior Note Trustee.............................. 62
ii
<PAGE>
Section 7.03. Individual Rights of Senior Note Trustee................... 62
Section 7.04. Senior Note Trustee's Disclaimer........................... 63
Section 7.05. Notice of Defaults......................................... 63
Section 7.06. Reports by Senior Note Trustee to Holders of the Senior
Notes.................................................... 63
Section 7.07. Compensation and Indemnity................................. 63
Section 7.08. Replacement of Senior Note Trustee......................... 64
Section 7.09. Successor Senior Note Trustee by Merger, etc............... 65
Section 7.10. Eligibility; Disqualification.............................. 65
Section 7.11. Preferential Collection of Claims Against Company.......... 65
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE.................. 66
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance... 66
Section 8.02. Legal Defeasance and Discharge............................. 66
Section 8.03. Covenant Defeasance........................................ 66
Section 8.04. Conditions to Legal or Covenant Defeasance................. 67
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.................... 68
Section 8.06. Repayment to Company....................................... 68
Section 8.07. Reinstatement.............................................. 69
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER...................... 69
Section 9.01. Without Consent of Holders of Senior Notes................. 69
Section 9.02. With Consent of Holders of Senior Notes.................... 70
Section 9.03. Compliance with Trust Indenture Act........................ 71
Section 9.04. Revocation and Effect of Consents.......................... 71
Section 9.05. Notation on or Exchange of Senior Notes.................... 71
Section 9.06. Senior Note Trustee to Sign Amendments, etc................ 72
ARTICLE 10.
SENIOR SUBSIDIARY GUARANTEES........................ 72
Section 10.01. Guarantee.................................................. 72
Section 10.02. Limitation on Senior Note Guarantor Liability.............. 73
Section 10.03. Execution and Delivery of Senior Subsidiary Guarantee...... 73
Section 10.04. Senior Note Guarantors May Consolidate, etc., on Certain
Terms.................................................... 74
Section 10.05. Releases Following Sale of Assets.......................... 75
ARTICLE 11.
MISCELLANEOUS............................... 75
Section 11.01. Trust Indenture Act Controls............................... 75
Section 11.02. Notices.................................................... 75
iii
<PAGE>
Section 11.03. Communication by Holders of Senior Notes with Other Holders
of Senior Notes.......................................... 76
Section 11.04. Certificate and Opinion as to Conditions Precedent......... 76
Section 11.05. Statements Required in Certificate or Opinion.............. 77
Section 11.06. Rules by Senior Note Trustee and Agents.................... 77
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders............................................. 77
Section 11.08. Governing Law.............................................. 77
Section 11.09. No Adverse Interpretation of Other Agreements.............. 78
Section 11.10. Successors................................................. 78
Section 11.11. Severability............................................... 78
Section 11.12. Counterpart Originals...................................... 78
Section 11.13. Table of Contents, Headings, etc........................... 78
EXHIBITS
Exhibit A1 FORM OF SENIOR NOTE
Exhibit A2 FORM OF TEMPORARY REGULATION S SENIOR NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF SENIOR SUBSIDIARY GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL SENIOR NOTE INDENTURE
SCHEDULES
Schedule I Schedule of Senior Note Guarantors
iv
<PAGE>
SENIOR NOTE INDENTURE dated as of May 18, 1998 between P&L Coal
Holdings Corporation, a Delaware corporation (the "Company") and State Street
Bank and Trust Company, as Senior Note Trustee (the "Senior Note Trustee").
The Company and the Senior Note Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 8-7/8% Series A Senior Notes due 2008 (the "Series A Senior Notes") and the
8-7/8% Series B Senior Notes due 2008 (the "Series B Senior Notes" and, together
with the Series A Senior Notes, the "Senior Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.DEFINITIONS.
"144A Global Senior Note" means a global note in the form of
Exhibit A1 hereto bearing the Global Senior Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Senior Notes sold in reliance on Rule
144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the acquisition by the Company of: (i) all of
the common stock of Peabody Holding Company, (ii) all of the common stock of
Gold Fields Mining Corp., (iii) all of the membership interests of Citizens
Power LLC, (iv) the 1% interests in CL Hartford, L.L.C., a Delaware limited
liability company, and Citizens Power Sales, a Delaware general partnership,
both subsidiaries of Citizens Power, LLC, (v) all of the shares of Darex
Capital, Inc., a company incorporated in the Republic of Panama, and (vi) all of
the ordinary shares of Peabody Australia, LTD., which together with Darex
Capital, Inc. owns Peabody Resources Limited.
"Additional Assets" means (i) any property or assets (other than
Capital Stock, Indebtedness or rights to receive payments over a period greater
than 180 days, other than with respect to coal supply contract restructurings)
that is usable by the Company or a Restricted Subsidiary in a Permitted Business
or (ii) the Capital Stock of a Person that is at the time, or becomes, a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary.
"Additional Senior Notes" means up to $150.0 million in aggregate
principal amount of Senior Notes (other than the Initial Senior Notes) issued
under this Senior Note Indenture in accordance with Sections 2.02 and 4.09
hereof.
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"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Senior Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than sales of inventory in the ordinary course of
business consistent with past practices (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Section 4.15 and/or Section 5.01 hereof and not by the provisions
of Section 4.10 hereof), and (ii) the issue or sale by the Company or any of its
Restricted Subsidiaries of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $5.0 million or (b) for Net Proceeds in excess of $5.0
million. Notwithstanding the foregoing, the following items shall not be deemed
to be Asset Sales: (i) a transfer of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (ii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (iii) a Restricted Payment that
is permitted by, or an Investment that is not prohibited by Section 4.07 hereof,
(iv) a disposition of Cash Equivalents or obsolete equipment, (v) foreclosures
on assets, (vi) the sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof and (vii) the factoring of accounts
receivable arising in the ordinary course of business pursuant to arrangements
customary in the industry.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Bengalla Joint Venture" means Bengalla Mining Co. Pty Limited,
Bengalla Agricultural Co. Pty Limited and Bengalla Coal Sales Co. Pty Ltd.,
which are the joint venture companies related to the Bengalla mine in New South
Wales, Australia.
"Black Beauty Coal Company" means the Indiana general partnership
among Thoroughbred, L.L.C., Black Beauty Resources, Inc. and Pittsburg and
Midway Coal Mining Co., and any Person collectively owned by those three
partners including, but not limited to, Eagle Coal Company and Falcon Coal
Company.
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"Board of Directors" means the Board of Directors of the Company,
or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"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.
"Cash Equivalents" means (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or insured by
the U.S. Government or any agency thereof, (b) certificates of deposit and time
deposits with maturities of one year or less from the date of acquisition and
overnight bank deposits of any lender under the Senior Credit Facilities or of
any commercial bank having capital and surplus in excess of $500.0 million, (c)
repurchase obligations of any lender under the Senior Credit Facilities or of
any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to securities
issued or fully guaranteed or insured by the U.S. Government, (d) commercial
paper of a domestic issuer rated at least A-2 by Standard & Poor's Rating Group
or P-2 by Moody's Investor Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of Standard & Poor's Rating Group
and Moody's Investor Service, Inc. cease publishing ratings of investments, (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by Standard &
Poor's Rating Group or A by Moody's Investor Service, Inc., (f) securities with
maturities of one year or less from the date of acquisition backed by standby
letters of credit issued by any lender under the Senior Credit Facilities or any
commercial bank satisfying the requirements of clause (b) of this definition or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
"Cedel" means Cedel Bank, SA.
"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, (iii)
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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, except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting Stock of the
Company (measured by voting power rather than number of shares) or (iv) the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"Company" means P&L Coal Holdings Corporation, and any and all
successors thereto.
"Citizens Power" means Citizens Power LLC, a Delaware limited
liability company and its direct and indirect Subsidiaries.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i)
provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (ii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs, deferred financing fees and
original issue discount, noncash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (iii) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale (to the extent such losses were
deducted in computing such Consolidated Net Income), plus (iv) depreciation,
depletion, amortization (including amortization of goodwill and other
intangibles) and other noncash expenses (including, without limitation,
writedowns and impairment of property, plant and equipment and intangibles and
other long-lived assets) (excluding any such noncash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, depletion, amortization and other noncash expenses were deducted
in computing such Consolidated Net Income, minus (v) noncash items increasing
such Consolidated Net Income for such period (other than accruals in accordance
with GAAP), plus (vi) without duplication for amounts otherwise included in
Consolidated Cash Flow, the amount of the Company's and its Restricted
Subsidiaries' proportionate share of the Consolidated Cash Flow of Black Beauty
Coal Company and its Subsidiaries for such period (calculated in proportion to
the Company's and its Restricted Subsidiaries' common equity ownership), in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income or profits
of, and the depreciation, depletion and amortization and other noncash expenses
of, a Restricted Subsidiary that is not a Senior Note Guarantor shall be added
to Consolidated Net Income to compute Consolidated Cash Flow only to the extent
that a
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corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income of any Person that is not a Subsidiary or that
is accounted for by the equity method of accounting shall be included only to
the extent of the amount of dividends or distributions paid in cash to the
referent Person or a Restricted Subsidiary thereof, (ii) the Net Income of any
Restricted Subsidiary that is not a Senior Note Guarantor shall be excluded to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded, (iv) the cumulative effect of a change in accounting principles
shall be excluded, and (v) the Net Income (or loss) of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the Company or one
of its Restricted Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of the closing of the Acquisition or (ii) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Corporate Trust Office of the Senior Note Trustee" shall be at the
address of the Senior Note Trustee specified in Section 11.02 hereof or such
other address as to which the Senior Note Trustee may give notice to the
Company.
"Credit Facilities" means, with respect to the Company or any of
its Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the Senior Credit Facilities) 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, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time. Indebtedness under Credit Facilities outstanding on the
date on which Senior Notes are first issued and authenticated under this Senior
Note Indenture shall be deemed to have been incurred on such date in reliance on
the exception provided by clause (i) of the definition of Permitted
Indebtedness.
"Custodian" means the Senior Note Trustee, as custodian with
respect to the Senior Notes in global form, or any successor entity thereto.
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<PAGE>
"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 Senior Note" means a certificated Senior Note
registered in the name of the Holder thereof and issued in accordance with
Section 2.06 hereof, in the form of Exhibit A1 hereto except that such Senior
Note shall not bear the Global Senior Note Legend and shall not have the
"Schedule of Exchanges of Interests in the Global Senior Note" attached thereto.
"Depositary" means, with respect to the Senior 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 Senior Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Senior Note Indenture.
"Designated Noncash Consideration" means the fair market value of
noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officer's Certificate, setting
forth the basis of such valuation, executed by the principal executive officer
and the principal financial officer of the Company, less the amount of cash or
Cash Equivalents received in connection with a sale of such Designated Noncash
Consideration.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Senior Notes mature; provided, however, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof.
"Domestic Subsidiary" means a Subsidiary that is (i) formed under
the laws of the United States of America or a state or territory 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 United States federal income tax
purposes.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of equity
securities (excluding Disqualified Stock) of the Company, other than any private
sales to an Affiliate of the Company.
"Escrow Account" means the escrow account maintained pursuant to
the Escrow Letter.
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"Escrow Letter" means that certain escrow letter dated March 2,
1998, by and among Lazard Brothers & Co., Limited, The Energy Group PLC, Peabody
Investments Inc. and P&L Coal Holdings Corporation.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth
in the Registration Rights Agreement.
"Exchange Senior Notes" means the Senior Notes issued in the
Exchange Offer pursuant to Section 2.06(f) hereof.
"Existing Citizens Power Investment" means the Investments in
Citizens Power by the Company and its Restricted Subsidiaries as of the date of
the closing of the Acquisition.
"Existing Indebtedness" means up to $292.5 million in aggregate
principal amount of Indebtedness of the Company and its Restricted Subsidiaries
(other than Indebtedness under the Senior Credit Facilities, the Senior Notes,
the Senior Notes and related Guarantees) in existence on the date of the closing
of the Acquisition, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount, noncash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letters of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations, but excluding amortization of debt
issuance costs) and (ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) any
interest expense on the portion of Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon) and (iv) the product of (a) all
dividend payments, whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than dividend payments
on Equity Interests payable solely in Equity Interests of the Company (other
than Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, times (b) a fraction, the numerator of which is one and the denominator
of which is one minus the effective combined federal, state and local tax rate
of such Person for such period, expressed as a decimal, in each case, for the
Company and its Restricted Subsidiaries on a consolidated basis and in
accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person and
its Restricted Subsidiaries for any period, the ratio of the Consolidated Cash
Flow of such Person
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and its Restricted Subsidiaries for such period to the Fixed Charges of such
Person and its Restricted Subsidiaries for such period. In the event that the
referrent Person or any of its Restricted Subsidiaries incurs, assumes,
Guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at the beginning of
the applicable four-quarter reference period. In addition, for purposes of
making the computation referred to above, (i) acquisitions that have been made
by the Company or any of its Restricted Subsidiaries, including through mergers
or consolidations and including any related financing transactions and including
pro forma cost savings permitted by Article 11 of Regulation S-X, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, and (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, and (iii) the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the referent Person
or any of its Restricted Subsidiaries following the Calculation Date.
"Foreign Subsidiaries" means Subsidiaries of the Company that are
not Domestic Subsidiaries.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date hereof.
"Global Senior Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Senior Notes issued
under this Senior Note Indenture.
"Global Senior Notes" means, individually and collectively, each of
the Restricted Global Senior Notes and the Unrestricted Global Senior Notes, in
the form of Exhibits A1 and A2 hereto issued in accordance with Section 2.01,
2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
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"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.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange, interest rates or commodity prices,
in each case for the purpose of risk management and not for speculation.
"Holder" means a Person in whose name a Senior Note is registered.
"IAI Global Senior Note" means the global Senior Note in the form
of Exhibit A1 hereto bearing the Global Senior Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Senior Notes sold to Institutional
Accredited Investors.
"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 or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations, if
and to the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the Guarantee
by such Person of any indebtedness of any other Person, but excluding from the
definition of "Indebtedness," any of the foregoing that constitutes (1) an
accrued expense, (2) trade payables and (3) Obligations in respect of
reclamation, workers' compensation, including black lung, pensions and retiree
health care, in each case to the extent not overdue for more than 90 days. The
amount of any Indebtedness outstanding as of any date shall be (i) the accreted
value thereof, in the case of any Indebtedness issued with original issue
discount, and (ii) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Senior Note through a Participant.
"Initial Senior Notes" means $400.0 million in aggregate principal
amount of Senior Notes issued under this Senior Note Indenture on the date
hereof.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
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"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees, other than performance guarantees provided
for the benefit of Citizens Power, of any portion of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the city in which the principal
office of the Trustee is located or at a place of payment are 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.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Senior Notes for use by
such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Marketable Securities" means, with respect to any Asset Sale, any
readily marketable equity securities that are (i) traded on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market; and (ii)
issued by a corporation having a total equity market capitalization of not less
than $250.0 million; provided that the excess of (A) the aggregate amount of
securities of any one such corporation held by the Company and any Restricted
Subsidiary over (B) ten times the average daily trading volume of such
securities during the 20 immediately preceding trading days shall be deemed not
to be Marketable Securities; as determined on the date of the contract relating
to such Asset Sale.
"Net Income" means, with respect to any Person, the net income or
loss of such Person, determined in accordance with GAAP and before any reduction
in respect of preferred
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stock dividends, excluding, however, (i) any gain or loss, together with any
related provision for taxes on such gain or loss, realized in connection with
(a) any Asset Sale (including, without limitation, dispositions pursuant to sale
and leaseback transactions) or (b) the disposition of any securities by such
Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries and (ii) any
extraordinary or nonrecurring gain or loss, together with any related provision
for taxes on such extraordinary or nonrecurring gain or loss.
"Net Proceeds" means the aggregate proceeds (cash or property)
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any noncash consideration received in any Asset Sale) or
the sale or disposition of any Investment, net of the direct costs relating to
such Asset Sale, sale or disposition, (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"Non-Guarantor Subsidiaries" means (i) Citizens Power and its
direct and indirect Subsidiaries, (ii) the Company's future Unrestricted
Subsidiaries and (iii) the Company's current and future Foreign Subsidiaries.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) other than a pledge of the Equity Interests of any
Unrestricted Subsidiaries, (b) is directly or indirectly liable (as a guarantor
or otherwise) other than by virtue of a pledge of the Equity Interests of any
Unrestricted Subsidiaries, or (c) constitutes the lender; and (ii) no default
with respect to which (including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Senior Notes being offered hereby) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"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.
"Offering" means the offering of the Senior Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officer's Certificate" means a certificate signed on behalf of the
Company by an Officer of the Company who must be a vice-president, the principal
financial officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Sections 11.04 and 11.05 hereof.
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"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Senior Note Trustee, that meets the requirements of
Sections 11.04 and 11.05 hereof. The counsel may be an employee of or counsel
to the Company, any Subsidiary of the Company or the Senior Note Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Permitted Business" means coal production, coal mining, coal
brokering, coal transportation, mine development, power marketing, electricity
generation, power/energy sales and trading, energy transactions/asset
restructurings, risk management products associated with energy, fuel/power
integration and other energy related businesses, ash disposal, environmental
remediation, coal, natural gas, petroleum or other fossil fuel exploration,
production, marketing, transportation and distribution and other related
businesses, and activities of the Company and its Subsidiaries as of the date of
the closing of the Acquisition and any business or activity that is reasonably
similar thereto or a reasonable extension, development or expansion thereof or
ancillary thereto.
"Permitted Investments" means (a) any Investment in the Company or
in a Restricted Subsidiary of the Company; (b) any Investment in Cash
Equivalents; (c) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment (i) such Person
becomes a Restricted Subsidiary of the Company or (ii) such Person, in one
transaction or a series of related transactions, is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company; (d) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company; (e) any
Investment existing on the date of the closing of the Acquisition (an "Existing
Investment") and any Investment that replaces, refinances or refunds an Existing
Investment, provided that the new Investment is in an amount that does not
exceed the amount replaced, refinanced or refunded and is made in the same
Person as the Investment replaced, refinanced or refunded, (f) advances to
employees not in excess of $10.0 million outstanding at any one time; (g)
Hedging Obligations permitted under clause (ix) of Section 4.09 hereof; (h)
loans and advances to officers, directors and employees for business-related
travel expenses, moving expenses and other similar expenses, in each case
incurred in the ordinary course of business; (i) any Investment in a Permitted
Business (whether or not an Investment in an Unrestricted Subsidiary) having an
aggregate fair market value, when taken together with all other Investments made
pursuant to this clause (i), does not exceed in aggregate amount the sum of (1)
10% of Total Assets at the time of such Investment (with the fair market value
of each Investment being measured at the time made and without giving effect to
subsequent changes in value) plus (2) 100% of the Net Proceeds from the sale or
disposition of any Investment previously made pursuant to this clause (i) or
100% of the amount of any dividend, distribution or payment from any such
Investment, net of income taxes paid or payable in respect thereof, in each case
up to the amount of the Investment that was made pursuant to this clause (i) and
50% of the amount of such Net Proceeds or 50% of such dividends, distributions
or payments, in each case received in excess of the amount of the Investments
made pursuant to this clause (i); (j) guarantees (including Guarantees) of
Indebtedness permitted by Section 4.09 hereof; (k) any Investment acquired by
the Company or any of its Restricted Subsidiaries (A) in exchange for any other
Investment or accounts receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other Investment or
accounts receivable or (B) as a result of the transfer of title with respect to
any secured Investment in default as a result of a foreclosure by the
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Company or any of its Restricted Subsidiaries with respect to such secured
Investment; (l) any Investment in Black Beauty Coal Company having an aggregate
fair market value, taken together with all other Investments made pursuant to
this clause (l), that are at the time outstanding not to exceed $50.0 million
(with any write-down or write-off of any such Investment deemed to remain
outstanding); (m) Investments in Citizens Power having an aggregate fair market
value, taken together with all other Investments made pursuant to this clause
(m), that are at that time outstanding not to exceed $50.0 million at the time
of such Investment (with the fair market value of each Investment being measured
at the time made and without giving effect to subsequent changes in value); (n)
any Investment in the Bengalla Joint Venture and the Warkworth Associates Joint
Venture having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (n), that are at the time outstanding,
not to exceed $25.0 million (with any write-down or write-off of any such
Investment deemed to remain outstanding); (o) that portion of any Investment by
the Company or a Restricted Subsidiary in a Permitted Business to the extent
that the Company or such Restricted Subsidiary will receive in a substantially
concurrent transaction an amount in cash equal to the amount of such Investment
(or the fair market value of such Investment), net of any obligation to pay
taxes or other amounts in respect of the receipt of such cash; provided that the
receipt of such cash does not carry any obligation by the Company or such
Restricted Subsidiary to repay or return such cash; and (p) the forgiveness or
cancellation of any payable due from Citizens Power and its direct and indirect
Subsidiaries outstanding on the date of the closing of the Acquisition;
provided, however, that with respect to any Investment, the Company may, in its
sole discretion, allocate all or any portion of any Investment to one or more of
the above clauses so that the entire Investment would be a Permitted Investment.
"Permitted Liens" means (i) Liens securing Indebtedness under
Credit Facilities that were permitted by the terms of this Senior Note Indenture
to be incurred; (ii) Liens in favor of the Company; (iii) Liens on property of a
Person existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary of the Company; provided that such Liens
were in existence prior to the contemplation of such merger or consolidation and
do not extend to any assets other than those of the Person merged into or
consolidated with the Company; (iv) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company,
provided that such Liens were in existence prior to the contemplation of such
acquisition; (v) 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; (vi) Liens incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance or other kinds of social security; (vii)
Liens existing on the date of the closing of the Acquisition; (viii) 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; (ix) Liens on assets of Senior Note Guarantors to secure
Senior Debt of such Senior Note Guarantors that was permitted by this Senior
Note Indenture to be incurred; (x) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company with respect
to obligations that (a) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially detract
from the value of the property or materially impair the use thereof in the
operation of business by the Company or such Restricted Subsidiary; (xi) Liens
on assets of Foreign Subsidiaries to secure Indebtedness that was permitted by
this Senior Note Indenture to be incurred; (xii) statutory liens of landlords,
mechanics, suppliers, vendors, warehousemen, carriers or other like Liens
arising in the ordinary course of business; (xiii) judgment Liens not giving
rise to an Event of Default 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; (xiv) easements, rights-of-way, zoning and
similar restrictions and other similar encumbrances or title defects incurred or
imposed, as applicable, in the ordinary course of business
13
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and consistent with industry practices which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto (as such property is used by the Company
or its Subsidiaries) or interfere with the ordinary conduct of the business of
the Company or such Subsidiaries; provided, however, that any such Liens are not
incurred in connection with any borrowing of money or any commitment to loan any
money or to extend any credit; (xv) Liens to secure Indebtedness (including
Capital Lease Obligations) permitted by clause (vi) of the second paragraph of
Section 4.09 hereof and other purchase money Liens to finance property or assets
of the Company or any Restricted Subsidiary acquired in the ordinary course of
business; provided that such Liens are only secured by such property or assets
so acquired or improved (including, in the case of the acquisition of Capital
Stock of a Person who becomes a Restricted Subsidiary, Liens on the assets of
the Person whose Capital Stock was so acquired); (xvi) Liens securing
Indebtedness under Hedging Obligations; provided that such Liens are only
secured by property or assets that secure the Indebtedness subject to the
Hedging Obligation; (xvii) Liens to secure Indebtedness permitted by clause (xv)
of the second paragraph of Section 4.09 hereof; and (xviii) Liens on the Equity
Interests of Unrestricted Subsidiaries securing Obligations of Unrestricted
Subsidiaries not otherwise prohibited by this Senior Note Indenture.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest and premium, if any, on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Senior Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Senior Notes on terms at least
as favorable to the Holders of Senior Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Principals" means Lehman Brothers Merchant Banking Partners II
L.P., any of its respective Affiliates and executive officers of the Company as
of the date of the closing of the Acquisition.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Senior Notes issued under this Senior Note
Indenture except where otherwise permitted by the provisions of this Senior Note
Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
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"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of May 18, 1998, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Senior Notes, one or more registration rights agreements between the Company and
the other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Senior Notes to register such Additional Senior Notes
under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Senior Note" means a Regulation S Temporary
Global Senior Note or Regulation S Permanent Global Senior Note, as appropriate.
"Regulation S Permanent Global Senior Note" means a permanent
global Senior Note in the form of Exhibit A1 hereto bearing the Global Senior
Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Senior Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Senior Note" means a temporary
global Senior Note in the form of Exhibit A2 hereto bearing the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Senior Notes initially sold in reliance on
Rule 903 of Regulation S.
"Related Party" with respect to any Principal means (A) any
controlling stockholder, 80% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) 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 Senior Note
Trustee, means any officer within the Corporate Trust Administration of the
Senior Note Trustee (or any successor group of the Senior Note Trustee) or any
other officer of the Senior Note 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 Definitive Senior Note" means a Definitive Senior Note
bearing the Private Placement Legend.
"Restricted Global Senior Note" means a Global Senior Note bearing
the Private Placement Legend.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined
in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
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"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facilities" means those certain Senior Credit
Facilities, dated as of May 14, 1998, by and among the Company, the Senior Note
Guarantors, Lehman Commercial Paper Inc., as Arranger, Syndication Agent and the
Administrative Agent 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, exhibits or
schedules to any of the foregoing), and in each case as amended, modified,
supplemented, restated, renewed, refunded, replaced, restructured, repaid or
refinanced from time to time (whether with the original agents and lenders or
other agents and lenders or otherwise, and whether provided under the original
credit agreement or other credit agreements or otherwise).
"Senior Note Guarantors" means each of (i) the Company's Domestic
Subsidiaries at the date of the closing of the Acquisition, other than Citizens
Power and the Subsidiaries of Citizens Power at the date of the Senior Note
Indenture and (ii) any other subsidiary that executes a Senior Subsidiary
Guarantee in accordance with the provisions of this Senior Note Indenture, and
their respective successors and assigns.
"Senior Note Indenture" means this Senior Note Indenture, as
amended or supplemented from time to time.
"Senior Notes" has the meaning assigned to it in the preamble to
this Senior Note Indenture.
"Senior Note Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Senior Note Indenture and thereafter means the successor serving hereunder.
"Senior Subordinated Note Indenture" means that certain Senior
Subordinated Note Indenture, dated as of the date hereof, between the Company
and State Street Bank and Trust Company, as Senior Subordinated Note Trustee, as
amended or supplemented from time to time, relating to the Senior Subordinated
Notes.
"Senior Subordinated Notes" means the Company's 9-5/8% Senior
Subordinated Notes due 2008 issued concurrently pursuant to the Senior
Subordinated Note Indenture.
"Senior Subsidiary Guarantees" mean the guarantees endorsed on the
Senior Notes by the Senior Note Guarantors.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
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"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 Senior Note Indenture.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Subsidiary Guarantees" mean the guarantees endorsed on
the Senior Subordinated Notes by the Senior Subordinated Note Guarantors.
"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 Senior Note
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).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb) as in effect on the date on which this Senior Note Indenture is
qualified under the TIA.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
GAAP, as shown on the most recently available consolidated balance sheet of the
Company and its Restricted Subsidiaries.
"Transaction Documents" means the documents related to (i) the
Acquisition (including, without limitation, the purchase agreement, the
participation agreement and the escrow agreement), (ii) the Senior Credit
Facilities and (iii) the offering of the Senior Notes and the Senior Notes.
"Treasury Rate" means the yield to maturity at the time of the
computation of the United States Treasury securities with a constant maturity
(as compiled by and published in the most recent Federal Reserve Statistical
Release H.15(519), which has become publicly available at least two Business
Days prior to the date fixed for redemption (or if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the then remaining average life to May 15, 2003; provided,
however, that if the average life of such Senior Note is not equal to the
constant maturity of the United States Treasury security for which weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the average life of such Senior Note is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
"Unrestricted Global Senior Note" means a permanent global Senior Note
in the form of Exhibit A1 attached hereto that bears the Global Senior Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Senior
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Senior Notes
that do not bear the Private Placement Legend.
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"Unrestricted Definitive Senior Note" means one or more Definitive
Senior Notes that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Subsidiary" means (i) Citizens Power and any direct or
indirect Subsidiary of Citizens Power on the date hereof and (ii) any Subsidiary
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution; but only to the extent that such Person: (a) has
no Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; (c) is a Person with respect to which
neither the Company nor any of its Restricted Subsidiaries has any obligation
(x) to subscribe for additional Equity Interests in Unrestricted Subsidiaries
(except with respect to Permitted Investments) or (y) to maintain or preserve
such Person's net worth; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries; provided, however, that the Company and its
Restricted Subsidiaries may guarantee the performance of Unrestricted
Subsidiaries in the ordinary course of business except for guarantees of
Obligations in respect of borrowed money. Any such designation by the Board of
Directors shall be evidenced to the Senior Note Trustee by filing with the
Senior Note Trustee a certified copy of the Board Resolution giving effect to
such designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions and was permitted by Section 4.07 hereof.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"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.
"Warkworth Associates Joint Venture" means Warkworth Coal Sales Ltd.,
Warkworth Pastoral Co. Pty, Limited and Warkworth Mining Limited, which are the
joint venture companies related to the Warkworth mine in New South Wales,
Australia.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries
of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
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Section 1.02.Other Definitions.
Defined in
Term Section
"Affiliate Transaction"..................................4.11
"Asset Sale".............................................4.10
"Asset Sale Offer".......................................3.09
"Authentication Order"...................................2.02
"Bankruptcy Law".........................................4.01
"Change of Control Offer"................................4.15
"Change of Control Payment"..............................4.15
"Change of Control Payment Date".........................4.15
"Covenant Defeasance"....................................8.03
"Event of Default".......................................6.01
"Excess Proceeds"........................................4.10
"incur"..................................................4.09
"Legal Defeasance".......................................8.02
"Offer Amount"...........................................3.09
"Offer Period"...........................................3.09
"Paying Agent"...........................................2.03
"Permitted Debt".........................................4.09
"Purchase Date"..........................................3.09
"Registrar"..............................................2.03
"Restricted Payments"....................................4.07
Section 1.03.Incorporation by Reference of Trust Indenture Act
Whenever this Senior Note Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Senior
Note Indenture.
The following TIA terms used in this Senior Note Indenture have the
following meanings:
"Indenture securities" means the Senior Notes;
"Indenture security Holder" means a Holder of a Senior Note;
"Indenture to be qualified" means this Senior Note Indenture;
"Indenture Trustee" or "institutional Trustee" means the Senior Note
Trustee; and
"obligor" on the Senior Notes and the Senior Subsidiary Guarantees
means the Company and the Senior Note Guarantors, respectively, and any
successor obligor upon the Senior Notes and the Senior Subsidiary Guarantees,
respectively.
All other terms used in this Senior Note 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.
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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 of successor sections or rules
adopted by the SEC from time to time.
ARTICLE 2.
THE SENIOR NOTES
Section 2.01. Form and Dating.
(a) General.
The Senior Notes and the Senior Note Trustee's certificate of
authentication shall be substantially in the form of Exhibits A1 and A2 hereto.
The Senior Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Senior Note shall be dated the date of its
authentication. The Senior Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Senior Note Indenture
and the Company, the Senior Note Guarantors and the Senior Note Trustee, by
their execution and delivery of this Senior Note Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Senior Note conflicts with the express provisions of this
Senior Note Indenture, the provisions of this Senior Note Indenture shall govern
and be controlling.
(b) Global Senior Notes.
Senior Notes issued in global form shall be substantially in the form
of Exhibits A1 or A2 attached hereto (including the Global Senior Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Senior Note"
attached thereto). Senior Notes issued in definitive form shall be
substantially in the form of Exhibit A1 attached hereto (but without the Global
Senior Note Legend thereon and without the "Schedule of Exchanges of Interests
in the Global Senior Note" attached thereto). Each Global Senior Note shall
represent such of the outstanding Senior Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Senior Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Senior Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Senior Note to reflect the amount
of any increase or
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decrease in the aggregate principal amount of outstanding Senior Notes
represented thereby shall be made by the Senior Note Trustee or the Custodian,
at the direction of the Senior Note Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Senior Notes.
Senior Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Senior Note,
which shall be deposited on behalf of the purchasers of the Senior Notes
represented thereby with the Senior Note Trustee, at its New York office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Cedel Bank, duly executed by the Company and
authenticated by the Senior Note Trustee as hereinafter provided. The Restricted
Period shall be terminated upon the receipt by the Senior Note Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedel Bank certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Senior Note (except to the extent of
any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Senior Note or an IAI Global Senior Note bearing a Private
Placement Legend, all as contemplated by Section 2.06(a)(ii) hereof), and (ii)
an Officer's Certificate from the Company. Following the termination of the
Restricted Period, beneficial interests in the Regulation S Temporary Global
Senior Note shall be exchanged for beneficial interests in Regulation S
Permanent Global Senior Notes pursuant to the Applicable Procedures.
Simultaneously with the authentication of Regulation S Permanent Global Senior
Notes, the Senior Note Trustee shall cancel the Regulation S Temporary Global
Senior Note. The aggregate principal amount of the Regulation S Temporary Global
Senior Note and the Regulation S Permanent Global Senior Notes may from time to
time be increased or decreased by adjustments made on the records of the Senior
Note Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Senior Note and the Regulation S Permanent Global Senior Notes that are
held by Participants through Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Senior Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time a Senior Note is authenticated, the Senior Note shall
nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Senior Note Trustee. The signature shall be conclusive
evidence that the Senior Note has been authenticated under this Senior Note
Indenture.
The Senior Note Trustee shall, upon a written order of the Company
signed by one Officer (an "Authentication Order"), authenticate Senior Notes for
original issue up to the aggregate
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principal amount stated in paragraph 4 of the Senior Notes. The aggregate
principal amount of Senior Notes outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Senior Note Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Senior Notes. An authenticating agent may
authenticate Senior Notes whenever the Senior Note Trustee may do so. Each
reference in this Senior Note Indenture to authentication by the Senior Note
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.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Senior Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Senior Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Senior Notes and of their
transfer and exchange. The Company may 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 Senior Note Trustee in writing of the name and address
of any Agent not a party to this Senior Note Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Senior Note
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Senior Notes.
The Company initially appoints the Senior Note Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Senior Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Senior Note
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Senior Note Trustee all money held by the Paying Agent
for the payment of principal, premium or Liquidated Damages, if any, or interest
on the Senior Notes, and will notify the Senior Note Trustee of any default by
the Company in making any such payment. While any such default continues, the
Senior Note Trustee may require a Paying Agent to pay all money held by it to
the Senior Note Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Senior Note Trustee. Upon payment over to the
Senior Note 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 Senior
Note Trustee shall serve as Paying Agent for the Senior Notes.
Section 2.05. Holder Lists.
The Senior Note 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 (S) 312(a). If the
Senior Note Trustee is not the Registrar, the Company shall furnish to the
Senior Note Trustee at least seven Business Days before each interest payment
date and at such other times as the Senior Note Trustee may request in writing,
a list in such form and as of such date as the
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Senior Note Trustee may reasonably require of the names and addresses of the
Holders of Senior Notes and the Company shall otherwise comply with TIA (S)
312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Senior Notes.
A Global Senior 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 Senior Notes will be exchanged by the Company for
Definitive Senior Notes if (i) the Company delivers to the Senior Note Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Senior Notes
(in whole but not in part) should be exchanged for Definitive Senior Notes and
delivers a written notice to such effect to the Senior Note Trustee; provided
that in no event shall the Regulation S Temporary Global Senior Note be
exchanged by the Company for Definitive Senior Notes prior to (x) the expiration
of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities
Act. Upon the occurrence of either of the preceding events in (i) or (ii) above,
Definitive Senior Notes shall be issued in such names as the Depositary shall
instruct the Senior Note Trustee. Global Senior Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Senior Note authenticated and delivered in exchange for, or in lieu of, a
Global Senior Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Senior Note. A Global Senior Note may not be
exchanged for another Senior Note other than as provided in this Section
2.06(a), however, beneficial interests in a Global Senior Note may be
transferred and exchanged as provided in Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Senior
Notes.
The transfer and exchange of beneficial interests in the Global Senior
Notes shall be effected through the Depositary, in accordance with the
provisions of this Senior Note Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Senior Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Senior Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Senior
Note. Beneficial interests in any Restricted Global Senior Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Senior Note in accordance
with the transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Temporary Regulation S Global
Senior Note may not be made to a U.S. Person or for the account or benefit
of a U.S. Person (other than an Initial Purchaser). Beneficial interests in
any Unrestricted Global Senior Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Senior Note. No written orders or instructions shall be required to
be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
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(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Senior Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either
(A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Senior Note in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given in accordance with
the Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Senior Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Senior Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no event
shall Definitive Senior Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Senior Note prior
to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Senior Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Senior Notes
contained in this Senior Note Indenture and the Senior Notes or otherwise
applicable under the Securities Act, the Senior Note Trustee shall adjust
the principal amount of the relevant Global Senior Note(s) pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Senior Note. A beneficial interest in any Restricted Global Senior
Note may be transferred to a Person who takes delivery thereof in the form
of a beneficial interest in another Restricted Global Senior Note if the
transfer complies with the requirements of Section 2.06(b)(ii) above and
the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Senior Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Senior Note
or the Regulation S Global Senior Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Senior Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Senior Note for Beneficial Interests in the Unrestricted
Global Senior Note. A beneficial interest in any Restricted Global Senior
Note may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Senior Note or transferred to a Person who takes
delivery
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thereof in the form of a beneficial interest in an Unrestricted Global
Senior Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal or via the
Depositary's book-entry system that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the Exchange Senior
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted
Global Senior Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global
Senior Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and state "blue sky" laws and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Senior Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Senior Note Trustee shall authenticate
one or more Unrestricted Global Senior Notes in an aggregate principal amount
equal to the aggregate principal amount of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Senior Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Senior Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Senior
Notes.
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(i) Beneficial Interests in Restricted Global Senior Notes to
Restricted Definitive Senior Notes. If any holder of a beneficial interest
in a Restricted Global Senior Note proposes to exchange such beneficial
interest for a Restricted Definitive Senior Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Senior Note, then, upon receipt by the Registrar of
the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to exchange such beneficial
interest for a Restricted Definitive Senior Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Senior Note Trustee shall cause the aggregate principal amount of the
applicable Global Senior Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Senior Note Trustee
shall authenticate and deliver to the Person designated in the instructions
a Definitive Senior Note in the appropriate principal amount. Any
Definitive Senior Note issued in exchange for a beneficial interest in a
Restricted Global Senior Note 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 Senior Note Trustee shall deliver such
Definitive Senior Notes to the Persons in whose names such Senior Notes are
so registered. Any Definitive Senior Note issued in exchange for a
beneficial interest in a Restricted Global Senior Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
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Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Senior Note may not be
exchanged for a Definitive Senior Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Senior Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(ii) Beneficial Interests in Restricted Global Senior Notes to
Unrestricted Definitive Senior Notes. A holder of a beneficial interest in
a Restricted Global Senior Note may exchange such beneficial interest for
an Unrestricted Definitive Senior Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Senior Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a Person participating in the distribution of the Exchange
Senior Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to exchange such
beneficial interest for a Definitive Senior Note that does not
bear the Private Placement Legend, a certificate from such holder
in the form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof
in the form of a Definitive Senior Note that does not bear the
Private Placement Legend, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and state "blue sky" laws and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Senior Notes
to Unrestricted Definitive Senior Notes. If any holder of a beneficial
interest in an Unrestricted Global Senior
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Note proposes to exchange such beneficial interest for a Definitive Senior
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Senior Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii) hereof, the Senior Note
Trustee shall cause the aggregate principal amount of the applicable Global
Senior Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Senior Note Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Senior Note in the appropriate principal amount. Any Definitive
Senior Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) 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 Senior Note
Trustee shall deliver such Definitive Senior Notes to the Persons in whose
names such Senior Notes are so registered. Any Definitive Senior Note
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Senior Notes for Beneficial
Interests.
(i) Restricted Definitive Senior Notes to Beneficial Interests in
Restricted Global Senior Notes. If any Holder of a Restricted Definitive
Senior Note proposes to exchange such Senior Note for a beneficial interest
in a Restricted Global Senior Note or to transfer such Restricted
Definitive Senior Notes to a Person who takes delivery thereof in the form
of a beneficial interest in a Restricted Global Senior Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Senior Note
proposes to exchange such Senior Note for a beneficial interest in a
Restricted Global Senior Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Senior Note is being
transferred to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Senior Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Senior Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Senior Note is being
transferred to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities Act
other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
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(F) if such Restricted Definitive Senior Note is being
transferred to the Company or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Senior Note is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Senior Note Trustee shall cancel the Restricted Definitive Senior Note,
increase or cause to be increased the aggregate principal amount of, in the
case of clause (A) above, the appropriate Restricted Global Senior Note, in
the case of clause (B) above, the 144A Global Senior Note, in the case of
clause (c) above, the Regulation S Global Senior Note, and in all other
cases, the IAI Global Senior Note.
(ii) Restricted Definitive Senior Notes to Beneficial Interests
in Unrestricted Global Senior Notes. A Holder of a Restricted Definitive
Senior Note may exchange such Senior Note for a beneficial interest in an
Unrestricted Global Senior Note or transfer such Restricted Definitive
Senior Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Senior Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Senior Notes
proposes to exchange such Senior Notes for a beneficial interest
in the Unrestricted Global Senior Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Senior Notes
proposes to transfer such Senior Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Senior Note, a certificate from such Holder
in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and state "blue sky" laws and
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that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Senior Note Trustee shall cancel the Definitive
Senior Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Senior Note.
(iii) Unrestricted Definitive Senior Notes to Beneficial
Interests in Unrestricted Global Senior Notes. A Holder of an Unrestricted
Definitive Senior Note may exchange such Senior Note for a beneficial
interest in an Unrestricted Global Senior Note or transfer such Definitive
Senior Notes to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Note at any time.
Upon receipt of a request for such an exchange or transfer, the Senior Note
Trustee shall cancel the applicable Unrestricted Definitive Senior Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Senior Notes.
If any such exchange or transfer from a Definitive Senior Note to
a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Senior Note
has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Senior
Note Trustee shall authenticate one or more Unrestricted Global Senior
Notes in an aggregate principal amount equal to the principal amount of
Definitive Senior Notes so transferred.
(e) Transfer and Exchange of Definitive Senior Notes for Definitive
Senior Notes.
Upon request by a Holder of Definitive Senior Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Senior Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Senior Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) Restricted Definitive Senior Notes to Restricted Definitive
Senior Notes. Any Restricted Definitive Senior Note may be transferred to
and registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Senior Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a
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certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(ii) Restricted Definitive Senior Notes to Unrestricted
Definitive Senior Notes. Any Restricted Definitive Senior Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Senior Note
or transferred to a Person or Persons who take delivery thereof in the form
of an Unrestricted Definitive Senior Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Senior Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Senior
Notes proposes to exchange such Senior Notes for an Unrestricted
Definitive Senior Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Senior
Notes proposes to transfer such Senior Notes to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Senior Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and state "blue
sky" laws and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Senior Notes to Unrestricted
Definitive Senior Notes. A Holder of Unrestricted Definitive Senior Notes
may transfer such Senior Notes to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Senior Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Senior Notes pursuant to the instructions from the
Holder thereof.
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(f) Exchange Offer.
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Senior Note Trustee
shall authenticate (i) one or more Unrestricted Global Senior Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Senior Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are
not broker-dealers, (y) they are not participating in a distribution of the
Exchange Senior Notes and (z) they are not affiliates (as defined in Rule 144)
of the Company, and accepted for exchange in the Exchange Offer and (ii)
Definitive Senior Notes in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Senior Notes accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Senior Notes, the Senior
Note Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Senior Notes to be reduced accordingly, and the Company shall
execute and the Senior Note Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Senior Notes so accepted
Definitive Senior Notes in the appropriate principal amount.
(g) Legends
The following legends shall appear on the face of all Global Senior
Notes and Definitive Senior Notes issued under this Senior Note Indenture unless
specifically stated otherwise in the applicable provisions of this Senior Note
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Senior Note and each Definitive Senior Note (and all Senior
Notes issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5
OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISION OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
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UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(B) Notwithstanding the foregoing, any Global Senior Note or
Definitive Senior Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Senior Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Senior Note Legend. Each Global Senior Note shall
bear a legend in substantially the following form:
"THIS GLOBAL SENIOR NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE SENIOR NOTE INDENTURE GOVERNING THIS SENIOR 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 SENIOR NOTE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE SENIOR NOTE
INDENTURE, (II) THIS GLOBAL SENIOR NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE SENIOR NOTE INDENTURE,
(III) THIS GLOBAL SENIOR NOTE MAY BE DELIVERED TO THE SENIOR NOTE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE SENIOR NOTE
INDENTURE AND (IV) THIS GLOBAL SENIOR NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Senior Note Legend. The
Regulation S Temporary Global Senior Note shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SENIOR NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED SENIOR NOTES, ARE AS SPECIFIED IN THE SENIOR NOTE
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SENIOR NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Senior Notes.
At such time as all beneficial interests in a particular Global Senior
Note have been exchanged for Definitive Senior Notes or a particular Global
Senior Note has been redeemed, repurchased or canceled in whole and not in part,
each such Global Senior Note shall be returned to or retained and canceled by
the Senior Note Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Senior Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Senior Note or for
Definitive Senior Notes, the principal amount of Senior Notes represented by
such Global Senior Note shall be reduced accordingly and an endorsement shall be
made on such Global Senior Note by the Senior Note Trustee or by the Depositary
at the direction of the Senior Note Trustee to reflect such reduction;
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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 Senior Note, such other Global Senior Note shall be increased accordingly
and an endorsement shall be made on such Global Senior Note by the Senior Note
Trustee or by the Depositary at the direction of the Senior Note Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Senior Note Trustee shall authenticate Global
Senior Notes and Definitive Senior Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Senior Note or to a Holder of a Definitive
Senior Note for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Senior Note selected for redemption in whole or
in part, except the unredeemed portion of any Senior Note being redeemed in
part.
(iv) All Global Senior Notes and Definitive Senior Notes issued
upon any registration of transfer or exchange of Global Senior Notes or
Definitive Senior Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Senior Note Indenture, as the Global Senior Notes or Definitive Senior
Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Senior Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Senior 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 Senior Note so selected for redemption
in whole or in part, except the unredeemed portion of any Senior Note being
redeemed in part or (c) to register the transfer of or to exchange a Senior
Note between a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Senior Note, the Senior Note Trustee, any Agent and the
Company may deem and treat the Person in whose name any Senior Note is
registered as the absolute owner of such Senior Note for the purpose of
receiving payment of principal of and interest on such Senior Notes and for
all other purposes, and none of the Senior Note Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Senior Note Trustee shall authenticate Global Senior
Notes and Definitive Senior Notes in accordance with the provisions of
Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
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SECTION 2.07. REPLACEMENT SENIOR NOTES
If any mutilated Senior Note is surrendered to the Senior Note
Trustee or the Company and the Senior Note Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Senior Note, the Company
shall issue and the Senior Note Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Senior Note if the Senior Note Trustee's
requirements are met. If required by the Senior Note Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Senior Note Trustee and the Company to protect the Company, the Senior
Note Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Senior Note is replaced. The Company may charge for its
expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Senior Note
Indenture equally and proportionately with all other Senior Notes duly issued
hereunder.
SECTION 2.08. OUTSTANDING SENIOR NOTES.
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Senior Note Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Senior Note effected by the Senior Note Trustee in accordance with the
provisions hereof, and those described in this Section as not outstanding.
Except as set forth in Section 2.09 hereof, a Senior Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Senior
Note.
If a Senior Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Senior Note Trustee receives proof
satisfactory to it that the replaced Senior Note is held by a bona fide
purchaser.
If the principal amount of any Senior Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
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 Senior Notes payable on that date, then on and after that date
such Senior Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.09. TREASURY SENIOR NOTES.
In determining whether the Holders of the required principal
amount of Senior Notes have concurred in any direction, waiver or consent,
Senior 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 Senior Note Trustee shall be protected in
relying on any such direction, waiver or consent, only Senior Notes that the
Senior Note Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SENIOR NOTES
Until certificates representing Senior Notes are ready for
delivery, the Company may prepare and the Senior Note Trustee, upon receipt of
an Authentication Order, shall authenticate temporary Senior Notes. Temporary
Senior Notes shall be substantially in the form of certificated Senior Notes but
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may have variations that the Company considers appropriate for temporary Senior
Notes and as shall be reasonably acceptable to the Senior Note Trustee. Without
unreasonable delay, the Company shall prepare and the Senior Note Trustee shall
authenticate definitive Senior Notes in exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Senior Note Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Senior Notes to the Senior
Note Trustee for cancellation. The Registrar and Paying Agent shall forward to
the Senior Note Trustee any Senior Notes surrendered to them for registration of
transfer, exchange or payment. The Senior Note Trustee and no one else shall
cancel all Senior Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy canceled Senior Notes
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all canceled Senior Notes shall be delivered to the
Company. The Company may not issue new Senior Notes to replace Senior Notes that
it has paid or that have been delivered to the Senior Note Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior
Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Senior Notes and in Section 4.01 hereof. The Company shall
notify the Senior Note Trustee in writing of the amount of defaulted interest
proposed to be paid on each Senior Note and the date of the proposed payment.
The Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10
days prior to the related payment date for such defaulted interest. At least 15
days before the special record date, the Company (or, upon the written request
of the Company, the Senior Note Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Senior Notes may use "CUSIP" numbers
(if then generally in use), and, if so, the Senior Note Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Senior Notes or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Senior Notes, and any such redemption shall not be
affected by any defect in or the omission of such numbers. The Company will
promptly notify the Senior Note Trustee of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO SENIOR NOTE TRUSTEE.
If the Company elects or is required to redeem Senior Notes
pursuant to the redemption provisions of Sections 3.07 or 3.10 hereof,
respectively, it shall furnish to the Senior Note Trustee, at least 30 days but
not more than 60 days before a redemption date, an Officer's Certificate setting
forth (i) the
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clause of this Senior Note Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Senior Notes to
be redeemed, (iv) the redemption price and (v) the CUSIP numbers of the Senior
Notes to be redeemed.
SECTION 3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED.
If less than all of the Senior Notes are to be redeemed or
purchased in an offer to purchase at any time, the Senior Note Trustee shall
select the Senior Notes to be redeemed or purchased among the Holders of the
Senior Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Senior Notes are listed or, if the
Senior Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Senior Note Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Senior Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the redemption date by the Senior Note Trustee
from the outstanding Senior Notes not previously called for redemption.
The Senior Note Trustee shall promptly notify the Company in
writing of the Senior Notes selected for redemption and, in the case of any
Senior Note selected for partial redemption, the principal amount thereof to be
redeemed. Senior Notes and portions of Senior Notes selected shall be in amounts
of $1,000 or whole multiples of $1,000; except that if all of the Senior Notes
of a Holder are to be redeemed, the entire outstanding amount of Senior 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 Senior Note Indenture
that apply to Senior Notes called for redemption also apply to portions of
Senior Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Senior Notes are to be redeemed at its registered address.
The notice shall identify the Senior Notes to be redeemed,
including the CUSIP numbers, and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion
of the principal amount of such Senior Note to be redeemed and that, after
the redemption date upon surrender of such Senior Note, a new Senior Note
or Senior Notes in principal amount equal to the unredeemed portion shall
be issued upon cancellation of the original Senior Note;
(d) the name and address of the Paying Agent;
(e) that Senior Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Senior Notes called for redemption ceases
to accrue on and after the redemption date;
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(g) the paragraph of the Senior Notes and/or Section of this
Senior Note Indenture pursuant to which the Senior 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 Senior Notes.
At the Company's request, the Senior Note Trustee shall give the
notice of redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Senior Note Trustee, at
least 45 days prior to the redemption date, an Officer's Certificate requesting
that the Senior Note Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Senior 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 Senior Note Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Senior Notes to be
redeemed on that date. The Senior Note Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Senior Note 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 Senior 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 Senior Notes or the portions of Senior Notes called for redemption. If a
Senior 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 Senior Note was registered at the close of
business on such record date. If any Senior 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 Senior Notes and in Section 4.01 hereof.
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the Senior Note
Trustee shall authenticate for the Holder at the expense of the Company a new
Senior Note equal in principal amount to the unredeemed portion of the Senior
Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Senior Notes will be subject to redemption at any time
at the option of the Company, in whole or in part, upon not less than 30 nor
more than 60 days' notice.
(b) Prior to May 15, 2003, the Senior Notes will be redeemable
at a redemption price equal to 100% of the principal amount thereof plus the
applicable Senior Notes Make Whole Premium,
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plus, to the extent not included in the Senior Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Notes Make Whole Premium" means, with
respect to a Senior Note, an amount equal to the greater of (a) 104.438% of the
outstanding principal amount of such Senior Note and (b) the excess of (1) the
present value of the remaining interest, premium, if any, and principal payments
due on such Senior Note as if such Senior Note were redeemed on May 15, 2003,
computed using a discount rate equal to the Treasury Rate plus basis 50 points,
over (2) the outstanding principal amount of such Senior Note.
(c) On or after May 15, 2003, the Senior Notes are redeemable at
the redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable redemption date, if redeemed during the twelve-month period
beginning on May 15 of the years indicated below:
Year Percentage
2003................................. 104.438%
2004................................. 102.958%
2005................................. 101.479%
2006 and thereafter.................. 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c)
of this Section 3.07, during the first 36 months after the date of the closing
of the Acquisition, the Company may on any one or more occasions redeem up to
35% of the aggregate principal amount of Senior Notes issued under this Senior
Note Indenture at a redemption price of 108.875% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that at least 65% of the aggregate principal amount of
Senior Notes issued remain outstanding immediately after the occurrence of such
redemption (excluding Senior Notes held by the Company and its Subsidiaries);
and provided, further, that such redemption shall occur within 120 days of the
date of the closing of such Equity Offering.
(e) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth in Section 3.10 hereof, the Company shall not
be required to make mandatory redemption or sinking fund payments with respect
to the Senior Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an offer to all Holders to purchase Senior Notes
(an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Senior
Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Senior Notes
tendered in response to the Asset Sale Offer. Payment for any Senior Notes so
purchased shall be made in the same manner as interest payments are made.
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If the Purchase Date is on or after an interest record date and
on or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Senior Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Senior Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Senior Note Trustee and each of the
Holders. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Senior Notes pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which shall govern
the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Senior Note not tendered or accepted for payment
shall continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such payment,
any Senior Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrete or accrue interest after the Purchase Date;
(e) that Holders electing to have a Senior Note purchased
pursuant to an Asset Sale Offer may only elect to have all of such Senior
Note purchased and may not elect to have only a portion of such Senior Note
purchased;
(f) that Holders electing to have a Senior Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the Senior
Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Senior Note completed, or transfer by book-entry transfer,
to the Company, a depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice at least three days before the
Purchase Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Senior Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to
have such Senior Note purchased;
(h) that, if the aggregate principal amount of Senior Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select
the Senior Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Senior Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Senior Notes were purchased only in
part shall be issued new Senior Notes equal in principal amount to the
unpurchased portion of the Senior Notes surrendered (or transferred by
book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Senior Notes or portions thereof
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tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has
been tendered, all Senior Notes tendered, and shall deliver to the Senior Note
Trustee an Officer's Certificate stating that such Senior Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.09. The Company, the Depositary or the Paying Agent, as the case
may be, shall promptly (but in any case not later than five days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Senior Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Senior Note,
and the Senior Note Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Senior Note to such Holder, in a
principal amount equal to any unpurchased portion of the Senior Note
surrendered. Any Senior Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
SECTION 3.10 SPECIAL MANDATORY REDEMPTION.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Notes at a
redemption price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of redemption.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF SENIOR NOTES.
The Company or a Senior Note Guarantor shall pay or cause to be
paid the principal of, premium, if any, and interest and Liquidated Damages, if
any, on the Senior Notes on the dates and in the manner provided in the Senior
Notes. Principal, premium, if any, and interest and Liquidated Damages, 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 and Liquidated Damages, if any, then due. The Company shall pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
The Company or a Senior Note 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
Senior 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 and Liquidated Damages (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Senior Note
Trustee or an affiliate of the Senior Note Trustee, Registrar or co-registrar)
where Senior 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
Senior Notes and
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this Senior Note Indenture may be served. The Company shall give prompt written
notice to the Senior Note 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 Senior
Note Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Senior
Note Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Senior 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 Senior Note 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 Corporate Trust Office of the
Senior Note Trustee as one such office or agency of the Company in accordance
with Section 2.03.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Senior Notes are outstanding, the Company shall furnish to
the Holders of Senior Notes (i) all quarterly and annual financial information
that would be required to be contained in a filing with the SEC on Forms 10-Q
and 10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries (showing in reasonable detail,
either on the face of the financial statements or in the footnotes thereto and
in Management's Discussion and Analysis of Financial Condition and Results of
Operations, the financial condition and results of operations of the Company and
its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company) and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with the SEC on Form 8-K if the Company were required to file such
reports, in each case, within the time periods specified in the SEC's rules and
regulations. In addition, following consummation of the Exchange Offer, whether
or not required by the rules and regulations of the SEC, the Company shall file
a copy of all such information and reports with the SEC for public availability
within the time periods specified in the SEC's rules and regulations (unless the
SEC will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. The Company shall at
all times comply with TIA (S) 314(a).
(b) For so long as any Senior Notes remain outstanding, the
Company and the Senior Note Guarantors shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company and each Senior Note Guarantor (to the extent
that such Senior Note Guarantor is so required under the TIA) shall deliver to
the Senior Note Trustee, within 90 days after the end of each fiscal year, an
Officer's Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Senior Note Indenture, and further stating, as to each such Officer
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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 Senior Note Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Senior Note
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 Senior Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Senior Notes are
outstanding, deliver to the Senior Note 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, an Officer's Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
SECTION 4.05. TAXES.
The Company shall pay, 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 Senior Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each of the Senior Note 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
Senior Note Indenture; and the Company and each of the Senior Note 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 Senior Note Trustee, but shall suffer and permit the execution of every such
power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests
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(other than Disqualified Stock) of the Company); (ii) purchase, redeem or
otherwise acquire or retire for value (including, without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company; (iii)
make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Senior Notes or any Senior Subsidiary Guarantee, except a payment of
interest or principal at Stated Maturity or Indebtedness permitted under clause
(viii) of Section 4.09 hereof or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless, at the time of and
after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its Subsidiaries after
the date of the closing of the Acquisition (excluding Restricted Payments
permitted by clauses (ii), (iii), (iv), (v), (ix), (x) and (xii) of the next
succeeding paragraph), is less than the sum, without duplication, of (i) 50% of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the date of the closing of the Acquisition to the end of the Company's
most recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus (ii) 100%
of the aggregate net cash proceeds or the fair market value of property other
than cash received by the Company since the date of the closing of the
Acquisition as a contribution to its common equity capital or from the issue or
sale of Equity Interests of the Company (other than Disqualified Stock) or from
the issue or sale of Disqualified Stock or debt securities of the Company that
have been converted into such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a Subsidiary of the
Company), plus (iii) to the extent that either any Existing Citizens Power
Investment or any Restricted Investment that reduced the amount available for
Restricted Payments under this clause (c) is sold for cash or otherwise
liquidated or repaid for cash or any dividend or payment is received by the
Company or a Restricted Subsidiary after the date of the closing of the
Acquisition in respect of such Investment, 100% of the amount of Net Proceeds or
dividends or payments (including the fair market value of property) received in
connection therewith, up to the amount of the Existing Citizens Power Investment
on the date of the closing of the Acquisition or the Restricted Investment that
reduced this clause (c), as the case may be, and thereafter 50% of the amount of
Net Proceeds or dividends or payments (including the fair market value of
property) received in connection therewith (except that the amount of dividends
or payments received in respect of payments of Obligations in respect of such
Investments, such as taxes, shall not increase the amounts under this clause
(c)), plus (iv) to the extent that any Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary after the date of the closing of the
Acquisition, 100% of the fair market value of the Company's Investment in such
Subsidiary as of the date of such redesignation up to the amount of the
Restricted Investments made in such Subsidiary that reduced this clause (c) and
50% of the excess of the fair market value of the Company's Investment in such
Subsidiary as of the date of such redesignation over (1) the amount of the
Restricted Investment that reduced this clause (c) and (2) any amounts that
increased the amount available as a Permitted Investment; provided, further,
that if Citizens Power or any of its Subsidiaries is designated as a Restricted
Subsidiary, the amount of the fair market value of the Investment therein on the
date hereof shall also be credited to this clause (c); provided, further, that
any
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amounts that increase this clause (c) shall not duplicatively increase amounts
available as Permitted Investments.
The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment would
have complied with the provisions of the this Senior Note Indenture;
(ii) the redemption, repurchase, retirement, defeasance or
other acquisition of any subordinated Indebtedness or Equity Interests of
the Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of, other Equity Interests of the Company (other than any
Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)(ii) of
the preceding paragraph;
(iii) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;
(iv) dividends or distributions by a Restricted Subsidiary of
the Company so long as, in the case of any dividend or distribution payable
on or in respect of any class or series of securities issued by a
Restricted Subsidiary, the Company or a Restricted Subsidiary receives at
least its pro rata share of such dividend or distribution in accordance
with its Equity Interests in such class or series of securities;
(v) Investments in Unrestricted Subsidiaries having an
aggregate fair market value not to exceed the amount, at the time of such
Investment, substantially concurrently contributed in cash or Cash
Equivalents to the common equity capital of the Company after the date of
the closing of the Acquisition; provided that any such amount contributed
shall be excluded from the calculation made pursuant to clause (c) above;
(vi) the payment of dividends on the Company's Common Stock,
following the first public offering of the Company's Common Stock after the
date of the closing of the Acquisition, of up to 6% per annum of the net
proceeds received by the Company in such public offering, other than public
offerings with respect to the Company's Common Stock registered on Form S-
8;
(vii) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any present or former employee
or director of the Company (or any of its Restricted Subsidiaries) pursuant
to any management equity subscription agreement or stock option agreement
or any other management or employee benefit plan in effect as of the date
of the closing of the Acquisition; provided that (A) the aggregate price
paid for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $2.0 million in any twelve-month period (with
unused amounts in any calendar year being carried over to succeeding
calendar years subject to a maximum (without giving effect to the following
proviso) of $5.0 million in any calendar year); provided further that such
amount in any calendar year may be increased by an amount not to exceed (x)
the cash proceeds from the sale of Equity Interests of the Company or a
Restricted Subsidiary to members of management and directors of the Company
and its Subsidiaries that occurs after the
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date of the closing of the Acquisition, plus (y) the cash proceeds of key-
man life insurance policies received by the Company and its Restricted
Subsidiaries after the date of the closing of the Acquisition, less (z) the
amount of any Restricted Payments previously made pursuant to clauses (x)
and (y) of this subparagraph (vii); and, provided further, that
cancellation of Indebtedness owing to the Company from members of
management of the Company or any of its Restricted Subsidiaries in
connection with a repurchase of Equity Interests of the Company or a
Restricted Subsidiary will not be deemed to constitute a Restricted Payment
for purposes of this covenant or any other provision of this Senior Note
Indenture and (B) no Default or Event of Default shall have occurred and be
continuing immediately after such transaction;
(viii) repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options; and
(ix) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions of Section 3.07 of the Senior Subordinated Note Indenture;
provided that the amount of any Equity Offering used to effect such a
repurchase, redemption or other acquisition or retirement for value shall
be excluded from the calculation made pursuant to clause (c) above;
(x) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions of Section 3.09, 4.10 and 4.15 of the Senior Subordinated Note
Indenture; provided that, as of the date of such repurchase, redemption or
other acquisition or retirement for value, no Default or Event of Default
shall have occurred and be continuing or, with the passage of time, would
occur as a consequence thereof;
(xi) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions of Section 3.10 of the Senior Subordinated Note Indenture ;
provided that the amount of any such repurchase, redemption, acquisition or
retirement shall be excluded from the calculation made pursuant to clause
(c) above; and
(xii) other Restricted Payments not otherwise prohibited by this
Section 4.07 in an aggregate amount not to exceed $25.0 million under this
clause (xii).
As of the date of the closing of the Acquisition, all of the Company's
Subsidiaries other than Citizens Power and its Subsidiaries will be Restricted
Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated shall be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this Section 4.07. All such outstanding
Investments shall be deemed to constitute Investments in an amount equal to the
fair market value of such Investments at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
If, at any time, any Unrestricted Subsidiary would fail to meet the
requirements in the definition of "Unrestricted Subsidiary" as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Senior Note Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.09 hereof, the
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Company shall be in default of such covenant). The Board of Directors of the
Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation shall be deemed to be an incurrence
of Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation.
The amount of all Restricted Payments (other than cash) shall be
the fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any noncash Restricted Payment or any adjustment made
pursuant to paragraph (c) of this Section 4.07 shall be determined by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Senior Note Trustee, such determination to be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if such fair market value exceeds $25.0 million. Not later than the
date of making any Restricted Payment, the Company shall deliver to the Senior
Note Trustee an Officer's Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section 4.07 were computed.
If any Restricted Investment is sold or otherwise liquidated or
repaid or any dividend or payment is received by the Company or a Restricted
Subsidiary and such amounts may be credited to clause (c) above, then such
amounts will be credited only to the extent of amounts not otherwise included in
Consolidated Net Income and that do not otherwise increase the amount available
as a Permitted Investment.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary that is not a Senior Note Guarantor to (i)(a) pay
dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits, or (b) pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Company or any of its Restricted Subsidiaries or
(iii) transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries. However, the foregoing restrictions will not apply to
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date of the Senior Note Indenture and/or the
closing of the Acquisition, (b) the Senior Credit Facilities as in effect as of
the date of the Senior Note Indenture and/or the closing of the Acquisition, and
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
the Senior Credit Facilities as in effect on the date of the Senior Note
Indenture and/or the closing of the Acquisition, (c) the Senior Note Indenture,
this Senior Note Indenture, the Senior Notes and the Senior Notes, (d)
applicable law or any applicable rule, regulation or order, (e) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired, provided that,
in the case of Indebtedness, such Indebtedness was permitted by the terms of
this Senior Note Indenture to be incurred, (f) customary non-assignment
provisions in leases and other agreements
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entered into in the ordinary course of business and consistent with past
practices, (g) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in clause
(iii) above on the property so acquired, (h) any agreement for the sale of a
Restricted Subsidiary that restricts distributions by that Restricted Subsidiary
pending its sale, (i) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced, (j) secured
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
Section 4.12 hereof that limits the right of the debtor to dispose of the assets
securing such Indebtedness, (k) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business, (l) restrictions on
cash or other deposits or net worth imposed by customers or lessors under
contracts or leases entered into in the ordinary course of business and (m) any
encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in clauses
(a) through (l) above, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Company's Board of
Directors, not materially more restrictive in the aggregate with respect to such
dividend and other payment restrictions than those (considered as a whole)
contained in the dividend or other payment restrictions prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall issue any Disqualified Stock and shall not permit
any of its Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or
issue shares of Disqualified Stock and the Company's Restricted Subsidiaries may
incur Indebtedness or issue Disqualified Stock or preferred stock if the Fixed
Charge Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have been at least 2.0 to
1.0, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred, or
the Disqualified Stock or preferred stock had been issued, as the case may be,
at the beginning of such four-quarter period.
The provisions of the first paragraph of this Section 4.09 will
not apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Company of term Indebtedness under
Credit Facilities (and the Guarantee thereof by the Senior Note
Guarantors); provided that the aggregate principal amount of all term
Indebtedness outstanding under this clause (i) after giving effect to such
incurrence does not exceed an amount equal to $920.0 million;
(ii) the incurrence by the Company of revolving credit
Indebtedness and letters of credit (with letters of credit being deemed to
have a principal amount equal to the maximum potential liability of the
Company and its Restricted Subsidiaries thereunder) under Credit Facilities
(and the Guarantee thereof by the Senior Note Guarantors); provided that
the aggregate principal amount of all revolving credit Indebtedness
outstanding under this clause (ii) after giving effect to such incurrence
does not exceed an amount equal to $480.0 million;
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(iii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company, the Senior Note Guarantors
and the Senior Note Guarantors of Indebtedness represented by the Senior
Notes, the Senior Notes, the Senior Subsidiary Guarantees and the Senior
Subsidiary Guarantees limited in aggregate principal amount, without
duplication, to amounts outstanding under the Senior Note Indenture and
this Senior Note Indenture as of their respective dates;
(v) (A) the guarantee by the Company or any of the Senior Note
Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the
Company or (B) the incurrence of Indebtedness of a Restricted Subsidiary to
the extent that such Indebtedness is supported by a letter of credit, in
each case that was permitted to be incurred by another provision of this
covenant;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (including Capital Lease Obligations) to
finance the acquisition (including by direct purchase, by lease or
indirectly by the acquisition of the Capital Stock of a Person that becomes
a Restricted Subsidiary as a result of such acquisition) or improvement of
property (real or personal) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then
outstanding pursuant to this clause (vi) and including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (vi), does not exceed an
amount equal to 5% of Total Assets at the time of such incurrence;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by this Senior
Note Indenture to be incurred under the first paragraph hereof or clauses
(iii), (iv) or (vii) of this paragraph;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Senior Notes and (ii)(A) any subsequent issuance or transfer
of Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary thereof and (B)
any sale or other transfer of any such Indebtedness to a Person that is not
either the Company or a Restricted Subsidiary thereof shall be deemed, in
each case, to constitute an incurrence of such Indebtedness by the Company
or such Restricted Subsidiary, as the case may be, that was not permitted
by this clause (viii);
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the ordinary
course of business for the purpose of risk management and not for the
purpose of speculation;
(x) the incurrence by the Company's Unrestricted Subsidiaries
of Non-Recourse Debt, provided, however, that if any such Indebtedness
ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event
shall be deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (x), and
the issuance of preferred stock by Unrestricted Subsidiaries;
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(xi) the incurrence of Indebtedness solely in respect of
performance, surety and similar bonds or completion or performance
guarantees (including, without limitation, performance guarantees pursuant
to coal supply agreements or equipment leases), to the extent that such
incurrence does not result in the incurrence of any obligation for the
payment of borrowed money to others;
(xii) the incurrence of Indebtedness arising from agreements of
the Company or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or a
Subsidiary; provided, however that (i) such Indebtedness is not reflected
on the balance sheet of the Company or any Restricted Subsidiary
(contingent obligations referred to in a footnote to financial statements
and not otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this clause (i)) and (ii)
the maximum assumable liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds including noncash proceeds (the fair
market value of such noncash proceeds being measured at the time received
and without giving effect to any subsequent changes in value) actually
received by the Company and its Restricted Subsidiaries in connection with
such disposition;
(xiii) the guarantee by the Company or any of the Senior Note
Guarantors of additional Indebtedness relating to Black Beauty Coal Company
not to exceed $50.0 million in aggregate principal amount outstanding at
any one time under this clause (xiii);
(xiv) the incurrence of Indebtedness relating to the Bengalla
Joint Venture or the Warkworth Associates Joint Venture in an aggregate
amount not to exceed $100.0 million in aggregate principal amount
outstanding at any one time under this clause (xiv); and
(xv) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace
any Indebtedness incurred pursuant to this clause (xv), not to exceed
$250.0 million.
The Company shall not incur, and shall not permit its Restricted
Subsidiaries to incur, any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the
Company or such Restricted Subsidiary unless such Indebtedness is also
contractually subordinated in right of payment to the Senior Notes, or the
Senior Subsidiary Guarantees, as the case may be, on substantially identical
terms; provided, however, that no Indebtedness of the Company or any Restricted
Subsidiary shall be deemed to be contractually subordinated in right of payment
to any other Indebtedness of the Company or any Restricted Subsidiary solely by
virtue of being unsecured.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xv) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify or reclassify such item of
Indebtedness in any manner that complies with this Section 4.09. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be deemed to
be an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section 4.09; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued.
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Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value as determined in good
faith by the Company (evidenced by a resolution of the Board of Directors set
forth in an Officer's Certificate delivered to the Senior Note Trustee with
respect to any Asset Sale determined to have a value greater that $25.0 million)
of the assets or Equity Interests issued or sold or otherwise disposed of and
(ii) at least 75% of the consideration therefor received by the Company or such
Subsidiary is in the form of cash, Cash Equivalents or Marketable Securities;
provided that the following amounts shall be deemed to be cash: (w) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet), of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Senior Notes or any guarantee thereof) that are assumed by the transferee of
any such assets pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further liability, (x) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 180 days following the closing of
such Asset Sale (to the extent of the cash received), (y) any Designated Noncash
Consideration received by the Company or any of its Restricted Subsidiaries in
such Asset Sale; provided that the aggregate fair market value (as determined
above) of such Designated Noncash Consideration, taken together with the fair
market value at the time of receipt of all other Designated Noncash
Consideration received pursuant to this clause (y) less the amount of Net
Proceeds previously realized in cash from prior Designated Noncash Consideration
is less than 5% of Total Assets at the time of the receipt of such Designated
Noncash Consideration (with the fair market value of each item of Designated
Noncash Consideration being measured at the time received and without giving
effect to subsequent changes in value) and (z) Additional Assets received in an
exchange of assets transaction.
Within 360 days after the receipt of any cash Net Proceeds from
an Asset Sale, the Company or such Restricted Subsidiary, at its option, may
apply such cash Net Proceeds, at its option, (a) to repay Indebtedness of the
Company or any Restricted Subsidiary that is not subordinated in right of
payment to Indebtedness under a Credit Facility, (b) to the acquisition of a
majority of the assets of, or a majority of the Voting Stock of, another
Permitted Business, the making of a capital expenditure or the acquisition of
other assets or Investments that are used or useful in a Permitted Business or
(c) to apply the cash Net Proceeds from such Asset Sale to an Investment in
Additional Assets. Any cash Net Proceeds from Asset Sales that are not applied
or invested as provided in the first sentence of this paragraph will be deemed
to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company shall be required to make an offer to all
Holders of Senior Notes and all holders of other Indebtedness that ranks pari
passu with the Senior Notes containing provisions similar to those set forth
herein with respect to offers to purchase or redeem with the proceeds of sales
of assets (an "Asset Sale Offer") to purchase the maximum principal amount of
Senior Notes and such other Indebtedness that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the date of purchase, in accordance with the procedures set forth
herein and such other Indebtedness. To the extent that any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use such
Excess Proceeds for any purpose not otherwise prohibited by this Senior Note
Indenture. If the aggregate principal amount of Senior Notes and such other
Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Senior Note Trustee shall select the
Senior Notes and such other Indebtedness to be purchased on a pro rata basis.
Upon completion of such offer to purchase, the amount of Excess Proceeds shall
be reset at zero.
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Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction") involving
aggregate payments or consideration in excess of $5.0 million, unless (i) such
Affiliate Transaction is on terms that are materially no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Senior
Note Trustee (a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $10.0
million, a resolution of the Board of Directors set forth in an Officer's
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
members of the Board of Directors and (b) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $25.0 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, the following items shall not be
deemed to be Affiliate Transactions: (i) any employment agreement or other
compensation plan or arrangement for employees entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or its Restricted
Subsidiaries, (iii) payment of reasonable fees to officers, directors, employees
or consultants of the Company; (iv) Restricted Payments that are permitted by,
and Investments that are not prohibited by, Section 4.07 hereof; (v)
indemnification payments made to officers, directors and employees of the
Company or any Restricted Subsidiary pursuant to charter, bylaw, statutory or
contractual provisions; (vi) the payment of customary annual management,
consulting and advisory fees and related expenses to Lehman Merchant Bank and
its Affiliates; (vii) payments by the Company or any of its Restricted
Subsidiaries to Lehman Merchant Bank and its Affiliates made for any financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in connection with
acquisitions or divestitures which payments are approved by a majority of the
Board of Directors of the Company in good faith; (viii) the existence of, or the
performance by the Company or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders' agreement (including any
registration rights agreement or purchase agreement related thereto) to which it
is a party as of the date of the closing of the Acquisition and any similar
agreements which it may enter into thereafter; provided, however, that the
existence of, or the performance by the Company or any of its Restricted
Subsidiaries of obligations under any future amendment to any such existing
agreement or under any similar agreement entered into after the date of the
closing of the Acquisition shall only be permitted by this clause (viii) to the
extent that the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Holders in any material respect; (ix) transactions
pursuant to the terms of the Transaction Documents in effect on the date of the
closing of the Acquisition; (x) transactions with Unrestricted Subsidiaries,
customers, clients, suppliers, joint venture partners or purchasers or sellers
of goods or services, in each case in the ordinary course of business
(including, without limitation, pursuant to joint venture agreements) and
otherwise in compliance with the terms of this Senior Note Indenture which are,
in the aggregate (taking into account all the costs and benefits associated with
such transactions), materially no less favorable to the Company or its
Restricted Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person, in the reasonable determination of the Board of Directors of the Company
or the senior management thereof, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party; (xi)
guarantees of
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performance by the Company and its Restricted Subsidiaries of Unrestricted
Subsidiaries in the ordinary course of business, except for guarantees of
Obligations in respect of borrowed money; and (xii) pledges of Equity Interests
of Unrestricted Subsidiaries for the benefit of lenders of Unrestricted
Subsidiaries.
Section 4.12. Liens.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) upon any of their property or assets, now owned or hereafter
acquired, unless all payments due under this Senior Note Indenture and the
Senior Notes are secured on an equal and ratable basis with the obligations so
secured until such time as such obligations are no longer secured by a Lien.
Section 4.13. Business activities.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than Permitted Businesses, except to
such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Senior Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior Notes will have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's Senior
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 and Liquidated Damages thereon, if any, to the
date of purchase (the "Change of Control Payment"). Within ten days following
any Change of Control, the Company will mail a notice to each Holder describing
the transaction or transactions that constitute the Change of Control and
offering to repurchase Senior 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 herein 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 Senior Notes
as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall,
to the extent lawful, (1) accept for payment all Senior 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
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respect of all Senior Notes or portions thereof so tendered and (3) deliver or
cause to be delivered to the Senior Note Trustee the Senior Notes so accepted
together with an Officer's Certificate stating the aggregate principal amount of
Senior Notes or portions thereof being purchased by the Company. The Paying
Agent will promptly mail to each Holder of Senior Notes so tendered the Change
of Control Payment for such Senior Notes, and, upon receipt of an Authentication
Order, the Senior Note Trustee will promptly authenticate and mail (or cause to
be transferred by book entry) to each Holder a new Senior Note equal in
principal amount to any unpurchased portion of the Senior Notes surrendered, if
any; provided that each such new Senior Note will be in a principal amount of
$1,000 or an integral multiple thereof. Prior to complying with the provisions
of this Section 4.15, but in any event within 90 days following a Change of
Control, the Company shall either repay all outstanding Senior Debt other than
the Senior Notes or obtain the requisite consents, if any, under all agreements
governing outstanding Senior Debt other than the Senior Notes to permit the
repurchase of Senior Notes required by this Section 4.15. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Change of Control provisions described above shall be
applicable whether or not any other provisions of this Senior Note Indenture are
applicable.
(c) Notwithstanding anything to the contrary in this Section
4.15, the Company will not be required to make a Change of Control Offer upon a
Change of Control 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 Senior Notes validly tendered and not withdrawn under such Change of Control
Offer or if the Company exercises its option to purchase the Senior Notes.
Section 4.16. Additional Senior 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 of the Senior Credit Facilities, then such newly
acquired or created Domestic Subsidiary shall execute a supplemental indenture
in form and substance substantially similar to Exhibit F hereto providing that
---------
such Domestic Subsidiary shall become a Senior Note Guarantor under this Senior
Note Indenture, provided, however, this Section 4.16 shall not apply to any
Domestic Subsidiary that has been properly designated as an Unrestricted
Subsidiary in accordance with this Senior Note Indenture for so long as it
continues to constitute an Unrestricted Subsidiary.
Section 4.17. Payments for consents
The Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Senior Notes for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Senior Note Indenture or the Senior Notes unless such
consideration is offered to be paid or is paid to all Holders of the Senior
Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
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ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the
Registration Rights Agreement, the Senior Notes and this Senior Note Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Senior Note Trustee; (iii) immediately after such transaction no Default or
Event of Default exists; and (iv) except in the case of a merger of the Company
with or into a Wholly Owned Restricted Subsidiary of the Company, immediately
after giving pro forma effect to such transaction, as if such transaction had
occurred at the beginning of the applicable four-quarter period, (A) the entity
surviving such consolidation or merger would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of Section 4.09 or (B) the Fixed Charge
Coverage Ratio for the Company or the entity or Person formed by or surviving
any such consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made would, immediately after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter period,
not be less than such Fixed Charge Coverage Ratio for the Company and its
Restricted Subsidiaries immediately prior to such transaction. The Company may
not, directly or indirectly, lease all or substantially all of its properties or
assets, in one or more related transactions, to any other Person. The provisions
of this Section 5.01 will not be applicable to a sale, assignment, transfer,
conveyance or other disposition of assets between or among the Company and its
Restricted Subsidiaries.
Notwithstanding the foregoing clause (iv), (i) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (ii) the Company may merge with an
Affiliate that has no significant assets or liabilities and was formed solely
for the purpose of changing the jurisdiction of organization of the Company in
another State of the United States or the form of organization of the Company so
long as the amount of Indebtedness of the Company and its Restricted
Subsidiaries is not increased thereby and provided that the successor assumes
all the obligations of the Company under the Registration Rights Agreement, the
Senior Notes and this Senior Note Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Senior Note Trustee.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Senior Note Indenture referring to the
"Company" shall refer instead to the successor corporation and not to the
Company), and may exercise
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every right and power of the Company under this Senior Note Indenture with the
same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Senior Notes except in
the case of a sale of all of the Company's assets that meets the requirements of
Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest
on, or Liquidated Damages, if any, with respect to, the Senior 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 Senior 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 Senior Notes as required by Sections
4.10 and/or 4.15 hereof;
(d) the Company fails to comply for 30 days after notice to the
Company by the Senior Note Trustee with any of the provisions of Sections 4.07
or 4.09 hereof; or the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Senior Note Indenture or the
Senior Notes for 60 days after notice to the Company by the Senior Note Trustee
or the Holders of at least 25% in aggregate principal amount of the Senior Notes
then outstanding voting as a single class;
(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 for money borrowed 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 Senior Note 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
$50.0 million or more;
(f) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction against the
Company or any of its that are Restricted Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary and such judgment or judgments remain undischarged for a period
(during which execution shall not be effectively stayed) of 60 days, provided
that the aggregate of all such undischarged judgments exceeds $50.0 million;
(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,
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(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
(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;
(i) except as permitted by this Senior Note Indenture, any
Senior 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 Senior Note Guarantor, or any Person acting on behalf of any
Senior Note Guarantor, shall deny or disaffirm its obligations under such Senior
Note Guarantor's Senior Subsidiary Guarantee; or
(j) the Company fails to deposit the required amounts into the
Escrow Account pursuant to the Escrow Letter or any failure of the proceeds of
the Escrow Account to be applied as required under the Escrow Letter.
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 as a whole, would constitute a Significant
Subsidiary) occurs and is continuing, the Senior Note Trustee or the Holders of
at least 25% in principal amount of the then outstanding Senior Notes may
declare all the Senior Notes to be due and payable immediately; provided, that
so long as any Indebtedness permitted to be incurred pursuant to the Senior
Credit Facilities shall be outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration under any such Indebtedness under the
Senior Credit Facilities or (ii) five Business Days after receipt by the Company
of written notice of such acceleration of the Senior Notes. Upon any such
declaration, the Senior Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of
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Default specified in clause (g) or (h) of Section 6.01 hereof occurs with
respect to the Company, 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, all outstanding Senior Notes shall be
due and payable without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Senior Notes by written
notice to the Senior Note 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.
If an Event of Default occurs on or after May 15, 2003, by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Senior Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Senior Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Senior Note Indenture or in the Senior
Notes to the contrary notwithstanding. If an Event of Default occurs prior to
May 15, 2003, by reason of any willful action (or inaction) taken (or not taken)
by or on behalf of the Company with the intention of avoiding paying the premium
upon redemption of the Senior Notes prior to such date, then, upon acceleration
of the Senior Notes, a premium shall also become and be immediately due and
payable in an amount, for each of the years beginning on May 15, of the years
set forth below, as set forth below (expressed as a percentage of the aggregate
principal amount to the date of payment that would otherwise be due but for the
provisions of this sentence):
Year Percentage
1998 ............................................... 111.833%
1999 ............................................... 110.354%
2000 ............................................... 108.875%
2001 ............................................... 107.396%
2002 ............................................... 105.917%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Senior Note
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest and Liquidated Damages, if any, on the Senior
Notes or to enforce the performance of any provision of the Senior Notes or this
Senior Note Indenture.
The Senior Note Trustee may maintain a proceeding even if it does
not possess any of the Senior Notes or does not produce any of them in the
proceeding. A delay or omission by the Senior Note Trustee or any Holder of a
Senior 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 Senior Notes by notice to the Senior Note Trustee may on
behalf of the Holders of all of the Senior 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 and Liquidated
Damages, if any, or interest on, the Senior Notes (including in connection with
an offer to purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Senior Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such
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acceleration). 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 Senior Note Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Senior Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Senior Note Trustee or exercising any
trust or power conferred on it. However, the Senior Note Trustee may refuse to
follow any direction that conflicts with law or this Senior Note Indenture that
the Senior Note Trustee determines may be unduly prejudicial to the rights of
other Holders of Senior Notes or that may involve the Senior Note Trustee in
personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Senior Note may pursue a remedy with respect to
this Senior Note Indenture or the Senior Notes only if:
(a) the Holder of a Senior Note gives to the Senior Note
Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Senior Notes make a written request to the Senior Note
Trustee to pursue the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes
offer and, if requested, provide to the Senior Note Trustee indemnity
satisfactory to the Senior Note Trustee against any loss, liability or
expense;
(d) the Senior Note 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
principal amount of the then outstanding Senior Notes do not give the
Senior Note Trustee a direction inconsistent with the request.
A Holder of a Senior Note may not use this Senior Note Indenture
to prejudice the rights of another Holder of a Senior Note or to obtain a
preference or priority over another Holder of a Senior Note.
Section 6.07. Rights of Holders of Senior Notes to Receive Payment.
Notwithstanding any other provision of this Senior Note
Indenture, the right of any Holder of a Senior Note to receive payment of
principal, premium and Liquidated Damages, if any, and interest on the Senior
Note, on or after the respective due dates expressed in the Senior 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 Senior Note Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Senior Note Trustee is authorized to recover judgment in
its own name and as Senior Note Trustee of an
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express trust against the Company for the whole amount of principal of, premium
and Liquidated Damages, if any, and interest remaining unpaid on the Senior
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 Senior Note Trustee, its agents and counsel.
Section 6.09. Senior Note Trustee May File Proofs of Claim.
The Senior Note 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 Senior Note Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Senior Note
Trustee, its agents and counsel) and the Holders of the Senior Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Senior 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 Senior Note
Trustee, and in the event that the Senior Note Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Senior Note
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Senior Note Trustee, its agents and counsel,
and any other amounts due the Senior Note Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Senior Note Trustee, its agents and counsel, and any other
amounts due the Senior Note Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Senior Note 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 Senior
Notes or the rights of any Holder, or to authorize the Senior Note Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Senior Note Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Senior Note Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Senior Note
Trustee and the costs and expenses of collection;
Second: to Holders of Senior Notes for amounts due and unpaid on
the Senior Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Senior Notes for principal, premium and
Liquidated Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Senior Note Trustee may fix a record date and payment date
for any payment to Holders of Senior Notes pursuant to this Section 6.10.
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Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Senior Note Indenture or in any suit against the Senior Note Trustee for any
action taken or omitted by it as a Senior Note 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 does not apply to a
suit by the Senior Note Trustee, a suit by a Holder of a Senior Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Senior Notes.
ARTICLE 7.
SENIOR NOTE TRUSTEE
Section 7.01. Duties of Senior Note Trustee.
(a) If an Event of Default has occurred and is continuing, the
Senior Note Trustee shall exercise such of the rights and powers vested in it by
this Senior Note Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Senior Note Trustee shall be
determined solely by the express provisions of this Senior Note Indenture
and the Senior Note Trustee need perform only those duties that are
specifically set forth in this Senior Note Indenture and no others, and no
implied covenants or obligations shall be read into this Senior Note
Indenture against the Senior Note Trustee; and
(ii) in the absence of bad faith on its part, the Senior
Note Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Senior Note Trustee and conforming to the
requirements of this Senior Note Indenture. However, the Senior Note
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Senior Note Indenture.
(c) The Senior Note Trustee may not be relieved from
liabilities for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Senior Note Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Senior Note Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Senior Note Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05 hereof.
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(d) Whether or not therein expressly so provided, every
provision of this Senior Note Indenture that in any way relates to the Senior
Note Trustee is subject to paragraphs (a), (b), (c), (e) and (f) of this Section
and Section 7.02.
(e) No provision of this Senior Note Indenture shall require
the Senior Note Trustee to expend or risk its own funds or incur any liability.
The Senior Note Trustee shall be under no obligation to exercise any of its
rights and powers under this Senior Note Indenture at the request of any
Holders, unless such Holder shall have offered to the Senior Note Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Senior Note Trustee shall not be liable for interest on
any money received by it except as the Senior Note Trustee may agree in writing
with the Company. Money held in trust by the Senior Note Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02. Rights of Senior Note Trustee.
(a) The Senior Note Trustee may conclusively rely upon any
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Senior Note Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Senior Note Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel or
both. The Senior Note Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officer's Certificate or Opinion
of Counsel. The Senior Note Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Senior Note Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Senior Note Trustee shall not be liable for any action
it takes or omits to take in good faith that it believes to be authorized or
within the rights or powers conferred upon it by this Senior Note Indenture.
(e) Unless otherwise specifically provided in this Senior Note
Indenture, any demand, request, direction or notice from the Company or any
Senior Note Guarantor shall be sufficient if signed by an Officer of the Company
or Senior Note Guarantor issuing such demand, request or notice.
(f) The Senior Note Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Senior Note Indenture
at the request or direction of any of the Holders unless such Holders shall have
offered to the Senior Note Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
Section 7.03. Individual Rights of Senior Note Trustee.
The Senior Note Trustee in its individual or any other capacity
may become the owner or pledgee of Senior Notes and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if it
were not Senior Note Trustee. However, in the event that the Senior Note Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the SEC for permission to continue as Senior Note Trustee or
resign. Any Agent may do the same with like rights and duties. The Senior Note
Trustee is also subject to Sections 7.10 and 7.11 hereof.
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Section 7.04. Senior Note Trustee's Disclaimer.
The Senior Note Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Senior Note Indenture or
the Senior Notes, it shall not be accountable for the Company's use of the
proceeds from the Senior Notes or any money paid to the Company or upon the
Company's direction under any provision of this Senior Note Indenture, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Senior Note Trustee, and it shall not be responsible
for any statement or recital herein or any statement in the Senior Notes or any
other document in connection with the sale of the Senior Notes or pursuant to
this Senior Note Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is known to the Senior Note Trustee, the Senior Note Trustee shall mail to
Holders of Senior Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Senior Note, the
Senior Note Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Senior Notes.
Section 7.06. Reports by Senior Note Trustee to Holders of the Senior Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Senior Note Indenture, and for so long as Senior
Notes remain outstanding, the Senior Note Trustee shall mail to the Holders of
the Senior Notes a brief report dated as of such reporting date that complies
with TIA (S) 313(a) (but if no event described in TIA (S) 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Senior Note Trustee also shall comply with TIA (S) 313(b)(2).
The Senior Note Trustee shall also transmit by mail all reports as required by
TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders
of Senior Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Senior Notes are listed in accordance with TIA (S)
313(d). The Company shall promptly notify the Senior Note Trustee when the
Senior Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company and the Senior Note Guarantors shall pay to the
Senior Note Trustee from time to time reasonable compensation for its acceptance
of this Senior Note Indenture and services hereunder. The Senior Note Trustee's
compensation shall not be limited by any law on compensation of a Senior Note
Trustee of an express trust. The Company and the Senior Note Guarantors shall
reimburse the Senior Note Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Senior Note Trustee's agents and
counsel.
The Company and the Senior Note Guarantors shall indemnify the
Senior Note Trustee against any and all losses, liabilities or expenses incurred
by it arising out of or in connection with the acceptance or administration of
its duties under this Senior Note Indenture, including the costs and expenses of
enforcing this Senior Note Indenture against the Company and the Senior Note
Guarantors (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company and the Senior Note Guarantors or any Holder or
any other person) or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent any such loss,
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liability or expense may be attributable to its negligence or bad faith. The
Senior Note Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Senior Note Trustee to so notify the Company
shall not relieve the Company and the Senior Note Guarantors of its obligations
hereunder. The Company shall defend the claim and the Senior Note Trustee shall
cooperate in the defense. The Senior Note Trustee may have separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company and the Senior Note Guarantors
under this Section 7.07 shall survive the satisfaction and discharge of this
Senior Note Indenture.
To secure the Company's and the Senior Note Guarantors' payment
obligations in this Section, the Senior Note Trustee shall have a Lien prior to
the Senior Notes on all money or property held or collected by the Senior Note
Trustee, except that held in trust to pay principal and interest on particular
Senior Notes. Such Lien shall survive the satisfaction and discharge of this
Senior Note Indenture.
When the Senior Note Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(g) or (h) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Senior Note Trustee shall comply with the provisions of TIA
(S) 313(b)(2) to the extent applicable.
Section 7.08. Replacement of Senior Note Trustee.
A resignation or removal of the Senior Note Trustee and
appointment of a successor Senior Note Trustee shall become effective only upon
the successor Senior Note Trustee's acceptance of appointment as provided in
this Section.
The Senior Note Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Senior Notes of a majority in principal amount of the then
outstanding Senior Notes may remove the Senior Note Trustee by so notifying the
Senior Note Trustee and the Company in writing. The Company may remove the
Senior Note Trustee if:
(a) the Senior Note Trustee fails to comply with Section
7.10 hereof;
(b) the Senior Note Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Senior Note
Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Senior Note Trustee or its property; or
(d) the Senior Note Trustee becomes incapable of acting.
If the Senior Note Trustee resigns or is removed or if a vacancy
exists in the office of Senior Note Trustee for any reason, the Company shall
promptly appoint a successor Senior Note Trustee. Within one year after the
successor Senior Note Trustee takes office, the Holders of a majority in
principal
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amount of the then outstanding Senior Notes may appoint a successor Senior Note
Trustee to replace the successor Senior Note Trustee appointed by the Company.
If a successor Senior Note Trustee does not take office within 60 days
after the retiring Senior Note Trustee resigns or is removed, the retiring
Senior Note Trustee, the Company, or the Holders of Senior Notes of at least 10%
in principal amount of the then outstanding Senior Notes may petition any court
of competent jurisdiction for the appointment of a successor Senior Note
Trustee.
If the Senior Note Trustee, after written request by any Holder of a
Senior Note who has been a Holder of a Senior Note for at least six months,
fails to comply with Section 7.10, such Holder of a Senior Note may petition any
court of competent jurisdiction for the removal of the Senior Note Trustee and
the appointment of a successor Senior Note Trustee.
A successor Senior Note Trustee shall deliver a written acceptance of
its appointment to the retiring Senior Note Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Senior Note Trustee shall
become effective, and the successor Senior Note Trustee shall have all the
rights, powers and duties of the Senior Note Trustee under this Senior Note
Indenture. The successor Senior Note Trustee shall mail a notice of its
succession to Holders of the Senior Notes. The retiring Senior Note Trustee
shall promptly transfer all property held by it as Senior Note Trustee to the
successor Senior Note Trustee, provided all sums owing to the Senior Note
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07 hereof. Notwithstanding replacement of the Senior Note Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Senior Note Trustee.
Section 7.09. Successor Senior Note Trustee by Merger, etc.
If the Senior Note Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Senior Note Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Senior Note Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate Senior Note Trustee power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital and
surplus of at least $100.0 million as set forth in its most recent published
annual report of condition.
This Senior Note Indenture shall always have a Senior Note Trustee who
satisfies the requirements of TIA (S) 310(a)(1), (2) and (5). The Senior Note
Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Senior Note Trustee is subject to TIA (S) 311(a), excluding any
creditor relationship listed in TIA (S) 311(b). A Senior Note Trustee who has
resigned or been removed shall be subject to TIA (S) 311(a) to the extent
indicated therein.
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officer's Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Senior Notes
upon compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Senior Notes and
to have each Senior Note Guarantor's obligation discharged with respect to its
Senior 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 Senior Notes, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Senior Note Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Senior Notes
and this Senior Note Indenture (and the Senior Note 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
Senior Notes to receive solely from the trust fund described in Section 8.04
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest and Liquidated Damages, if any, on
such Senior Notes when such payments are due, (b) the Company's obligations with
respect to such Senior Notes under Article 2 and Section 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Senior Note Trustee
hereunder and the Company's obligations in connection therewith and (d) this
Article 8. Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Senior Note Guarantor
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16 and 4.17 hereof
with respect to the outstanding Senior Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Senior 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 Senior Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Senior Notes, the Company and each Senior Note
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 Senior Note Indenture and such Senior
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section
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8.03 hereof, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, Sections 6.01(d) through 6.01(f) hereof shall not constitute Events
of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Senior Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Senior Note Trustee,
in trust, for the benefit of the Holders, cash in United States dollars, non-
callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on the outstanding Senior Notes on the stated date
for payment thereof or on the applicable redemption date, as the case may be,
and the Company must specify whether the Senior Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Senior Note Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Senior Note Trustee confirming that
(A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Senior Note 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 shall confirm
that, the Holders of the outstanding Senior 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 8.03 hereof, the Company
shall have delivered to the Senior Note Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Senior Note Trustee confirming that
the Holders of the outstanding Senior 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;
(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 Senior Notes pursuant to this Article 8
concurrently with such incurrence) or insofar as Sections 6.01(g) or 6.01(h)
hereof is 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 Senior Note 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 Senior Note Trustee an
Opinion of Counsel (which may be subject to customary exceptions) to the effect
that on the effective date of such defeasance, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally;
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(g) the Company shall have delivered to the Senior Note Trustee an
Officer's 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 other
creditors of the Company; and
(h) the Company shall have delivered to the Senior Note Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the Senior
Note Trustee (or other qualifying Senior Note Trustee, collectively for purposes
of this Section 8.05, the "Senior Note Trustee") pursuant to Section 8.04 hereof
in respect of the outstanding Senior Notes shall be held in trust and applied by
the Senior Note Trustee, in accordance with the provisions of such Senior Notes
and this Senior Note Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Senior Note
Trustee may determine, to the Holders of such Senior 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 Senior Note Guarantors shall pay and
indemnify the Senior Note Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.04 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 Senior Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Senior Note Trustee shall deliver or pay to the Company from time to time upon
the request of the Company any money or non-callable Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Senior Note Trustee (which may be the
opinion delivered under Section 8.04(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 8.06. Repayment to Company.
Any money deposited with the Senior Note 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 Senior 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 Senior Note
shall thereafter, as a secured creditor, look only to the Company for payment
thereof, and all liability of the Senior Note Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as Senior Note
Trustee thereof, shall thereupon cease; provided, however, that the Senior Note
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.
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Section 8.07. Reinstatement.
If the Senior Note Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in accordance with
Section 8.02 or 8.03 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 Company's obligations under
this Senior Note Indenture and the Senior Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Senior Note Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03 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 Senior Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Senior Notes to receive such payment from the money held by the Senior Note
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Senior Notes.
Notwithstanding Section 9.02 of this Senior Note Indenture, the
Company, the Senior Note Guarantors and the Senior Note Trustee may amend or
supplement this Senior Note Indenture, the Senior Subsidiary Guarantees or the
Senior Notes without the consent of any Holder of a Senior Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or
in place of certificated Senior Notes or to alter the provisions of Article
2 hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(c) to provide for the assumption of the Company's or a Senior
Note Guarantor's obligations to the Holders of the Senior Notes by a
successor to the Company or a Senior Note Guarantor pursuant to Article 5
or Article 10 hereof;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Senior Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Senior Note Indenture under the TIA;
(f) to provide for the issuance of Additional Senior Notes in
accordance with the limitations set forth in this Senior Note Indenture as
of the date hereof; or
(g) to allow any Senior Note Guarantor to execute a supplemental
Senior Note Indenture and/or a Senior Subsidiary Guarantee with respect to
the Senior 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
Senior Note Indenture, and upon receipt by the Senior Note Trustee of the
documents described in Section 7.02 hereof, the Senior Note Trustee shall join
with the Company and the Senior Note Guarantors in the execution of any amended
or supplemental Senior Note Indenture authorized or permitted by the terms of
this Senior Note Indenture
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and to make any further appropriate agreements and stipulations that may be
therein contained, but the Senior Note Trustee shall not be obligated to enter
into such amended or supplemental Senior Note Indenture that affects its own
rights, duties or immunities under this Senior Note Indenture or otherwise.
Section 9.02. With Consent of Holders of Senior Notes.
Except as provided below in this Section 9.02, the Company and
the Senior Note Trustee may amend or supplement this Senior Note Indenture
(including Sections 3.09, 3.10, 4.10 and 4.15 hereof), the Senior Subsidiary
Guarantees and the Senior Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the Senior Notes
(including Additional Senior Notes, if any) then outstanding voting as a single
class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Senior Notes), and, subject to Sections 6.04 and
6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on the Senior Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes (including Additional Senior Notes, if any)
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Senior Notes). Section
2.08 hereof shall determine which Senior Notes are considered to be
"outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Senior Note Indenture, and upon the filing with the Senior Note
Trustee of evidence satisfactory to the Senior Note Trustee of the consent of
the Holders of Senior Notes as aforesaid, and upon receipt by the Senior Note
Trustee of the documents described in Section 7.02 hereof, the Senior Note
Trustee shall join with the Company in the execution of such amended or
supplemental Senior Note Indenture unless such amended or supplemental Senior
Note Indenture directly affects the Senior Note Trustee's own rights, duties or
immunities under this Senior Note Indenture or otherwise, in which case the
Senior Note Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Senior Note Indenture.
It shall not be necessary for the consent of the Holders of
Senior Notes under this Section 9.02 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
becomes effective, the Company shall mail to the Holders of Senior Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Senior Note Indenture or waiver. Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate principal amount of the
Senior Notes (including Additional Senior 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 Senior Note Indenture or the Senior Notes. However,
without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Senior Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Senior Notes whose Holders
must consent to an amendment, supplement or waiver;
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(b) reduce the principal of or change the fixed maturity of any
Senior Note or alter or waive any of the provisions with respect to the
redemption of the Senior Notes except as provided above with respect to
Sections 3.09, 3.10, 4.10 and 4.15 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Senior Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if any,
on the Senior Notes (except a rescission of acceleration of the Senior
Notes by the Holders of at least a majority in aggregate principal amount
of the then outstanding Senior Notes (including Additional Senior Notes, if
any) and a waiver of the payment default that resulted from such
acceleration;
(e) make any Senior Note payable in money other than that stated
in the Senior Notes;
(f) make any change in the provisions of this Senior Note
Indenture relating to waivers of past Defaults or the rights of Holders of
Senior Notes to receive payments of principal of or premium, interest or
Liquidated Damages, if any, on the Senior Notes;
(g) waive a redemption payment with respect to any Senior Note
(other than a payment required pursuant to Section 4.10 or 4.15);
(h) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions; or
(i) release any Senior Note Guarantor from any of its obligations
under its Senior Subsidiary Guarantee or this Senior Note Indenture, except
in accordance with the terms of this Senior Note Indenture.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Senior Note Indenture or
the Senior Notes shall be set forth in a amended or supplemental Senior Note
Indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Senior Note is a continuing consent by the Holder
of a Senior Note and every subsequent Holder of a Senior Note or portion of a
Senior Note that evidences the same debt as the consenting Holder's Senior Note,
even if notation of the consent is not made on any Senior Note. However, any
such Holder of a Senior Note or subsequent Holder of a Senior Note may revoke
the consent as to its Senior Note if the Senior Note 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 9.05. Notation on or Exchange of Senior Notes.
The Senior Note Trustee may place an appropriate notation about
an amendment, supplement or waiver on any Senior Note thereafter authenticated.
The Company in exchange for all
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Senior Notes may issue and the Senior Note Trustee shall, upon receipt of an
Authentication Order, authenticate new Senior Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Senior
Note shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Senior Note Trustee to Sign Amendments, etc.
The Senior Note Trustee shall sign any amended or supplemental
Senior Note Indenture authorized pursuant to this Article 9 if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Senior Note Trustee. The Company may not sign an amendment or
supplemental Senior Note Indenture until the Board of Directors approves it. In
executing any amended or supplemental Senior Note Indenture, the Senior Note
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 12.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental Senior Note Indenture is
authorized or permitted by this Senior Note Indenture.
ARTICLE 10.
SENIOR SUBSIDIARY GUARANTEES
Section 10.01. Guarantee.
Subject to this Article 10, each of the Senior Note Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Senior Note authenticated and delivered by the Senior Note Trustee and to the
Senior Note Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Senior Note Indenture, the Senior Notes or the
obligations of the Company hereunder or thereunder, that: (a) the principal of
and interest on the Senior 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 Senior Notes, if any, if lawful, and
all other obligations of the Company to the Holders or the Senior Note 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 Senior 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 Senior
Note Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Senior Note Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
The Senior Note Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Senior Notes or this Senior Note Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Senior 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 Senior Note Guarantor. Each Senior Note Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Senior Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Senior Notes
and this Senior Note Indenture.
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If any Holder or the Senior Note Trustee is required by any court
or otherwise to return to the Company, the Senior Note Guarantors or any
custodian, Senior Note Trustee, liquidator or other similar official acting in
relation to either the Company or the Senior Note Guarantors, any amount paid by
either to the Senior Note Trustee or such Holder, this Senior Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Senior Note 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 Senior Note Guarantor further agrees that, as between
the Senior Note Guarantors, on the one hand, and the Holders and the Senior Note
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of
this Senior 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 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Senior Note
Guarantors for the purpose of this Senior Subsidiary Guarantee. The Senior Note
Guarantors shall have the right to seek contribution from any non-paying Senior
Note Guarantor so long as the exercise of such right does not impair the rights
of the Holders under the Senior Subsidiary Guarantee.
Section 10.02. Limitation on Senior Note Guarantor Liability.
Each Senior Note Guarantor, and by its acceptance of Senior
Notes, each Holder, hereby confirms that it is the intention of all such parties
that the Senior Subsidiary Guarantee of such Senior Note 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 Senior
Subsidiary Guarantee. To effectuate the foregoing intention, the Senior Note
Trustee, the Holders and the Senior Note Guarantors hereby irrevocably agree
that the obligations of such Senior Note Guarantor under its Senior Subsidiary
Guarantee and this Article 10 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 Senior Note 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 Senior Note Guarantor in respect
of the obligations of such other Senior Note Guarantor under this Article 10,
result in the obligations of such Senior Note Guarantor under its Senior
Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03. Execution and Delivery of Senior Subsidiary Guarantee.
To evidence its Senior Subsidiary Guarantee set forth in Section
10.01, each Senior Note Guarantor hereby agrees that a notation of such Senior
Subsidiary Guarantee substantially in the form included in Exhibit E shall be
endorsed by an Officer of such Senior Note Guarantor on each Senior Note
authenticated and delivered by the Senior Note Trustee and that this Senior Note
Indenture shall be executed on behalf of such Senior Note Guarantor by its
President or one of its Vice Presidents.
Each Senior Note Guarantor hereby agrees that its Senior
Subsidiary Guarantee set forth in Section 10.01 shall remain in full force and
effect notwithstanding any failure to endorse on each Senior Note a notation of
such Senior Subsidiary Guarantee.
If an Officer whose signature is on this Senior Note Indenture
or on the Senior Subsidiary Guarantee no longer holds that office at the time
the Senior Note Trustee authenticates the Senior Note on which a Senior
Subsidiary Guarantee is endorsed, the Senior Subsidiary Guarantee shall be valid
nevertheless.
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The delivery of any Senior Note by the Senior Note Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the
Senior Subsidiary Guarantee set forth in this Senior Note Indenture on behalf of
the Senior Note Guarantors.
In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Senior Note Indenture, if required
by Section 4.16 hereof, the Company shall cause such Subsidiaries to execute
supplemental Senior Note Indentures to this Senior Note Indenture and Senior
Subsidiary Guarantees in accordance with Section 4.16 hereof and this Article
10, to the extent applicable.
Section 10.04. Senior Note Guarantors May Consolidate, etc., on Certain Terms.
No Senior Note Guarantor may consolidate with or merge with or
into (whether or not such Senior Note Guarantor is the surviving Person) another
Person whether or not affiliated with such Senior Note Guarantor unless:
(a) subject to Section 10.04 hereof, the Person formed by or
surviving any such consolidation or merger (if other than a Senior Note
Guarantor or the Company) unconditionally assumes all the obligations of such
Senior Note Guarantor, pursuant to a supplemental Senior Note Indenture in form
and substance reasonably satisfactory to the Senior Note Trustee, under the
Senior Notes, this Senior Note Indenture, the Registration Rights Agreement and
the Senior Subsidiary Guarantee on the terms set forth herein or therein;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(c) the Company would be permitted, immediately after giving
effect to such transaction, to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental Senior Note
Indenture, executed and delivered to the Senior Note Trustee and satisfactory in
form to the Senior Note Trustee, of the Senior Subsidiary Guarantee endorsed
upon the Senior Notes and the due and punctual performance of all of the
covenants and conditions of this Senior Note Indenture to be performed by the
Senior Note Guarantor, such successor Person shall succeed to and be substituted
for the Senior Note Guarantor with the same effect as if it had been named
herein as a Senior Note Guarantor. Such successor Person thereupon may cause to
be signed any or all of the Senior Subsidiary Guarantees to be endorsed upon all
of the Senior Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Senior Note Trustee. All the Senior
Subsidiary Guarantees so issued shall in all respects have the same legal rank
and benefit under this Senior Note Indenture as the Senior Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of this Senior
Note Indenture as though all of such Senior Subsidiary Guarantees had been
issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses (a) and (b) above, nothing contained in this Senior Note
Indenture or in any of the Senior Notes shall prevent any consolidation or
merger of a Senior Note Guarantor with or into the Company or another Senior
Note Guarantor, or shall prevent any sale or conveyance of the property of a
Senior Note Guarantor as an entirety or substantially as an entirety to the
Company or another Senior Note Guarantor.
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Section 10.05. Releases Following Sale of Assets.
In the event of (a) a sale or other disposition of all of the
assets of any Senior Note Guarantor, by way of merger, consolidation or
otherwise, (b) a sale or other disposition of all of the capital stock of any
Senior Note Guarantor or (c) the designation of a Senior Note Guarantor as an
Unrestricted Subsidiary in accordance with the terms of the Senior Note
Indenture, then such Senior Note Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the capital
stock of such Senior Note Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all of the
assets of such Senior Note Guarantor) will be released and relieved of any
obligations under its Senior Subsidiary Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Senior Note Indenture, including without
limitation Section 4.10 hereof. Upon delivery by the Company to the Senior Note
Trustee of an Officer's Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
applicable provisions of this Senior Note Indenture, including without
limitation Section 4.10 hereof, the Senior Note Trustee shall execute any
documents reasonably required in order to evidence the release of any Senior
Note Guarantor from its obligations under its Senior Subsidiary Guarantee.
Any Senior Note Guarantor not released from its obligations
under its Senior Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Senior Notes and for the other obligations of
any Senior Note Guarantor under this Senior Note Indenture as provided in this
Article 10.
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Senior Note Indenture limits, qualifies
or conflicts with the duties imposed by TIA (S) 318(c), the imposed duties shall
control.
Section 11.02. Notices.
Any notice or communication by the Company, any Senior Note
Guarantor or the Senior Note Trustee to the others is duly given if in writing
and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address.
If to the Company and/or any Senior Note Guarantor:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Telecopier No.: (314) 342-3419
Attention: Chief Legal Officer
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
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Telecopier No. (212) 455-2502
Attention: Rise B. Norman
If to the Senior Note Trustee:
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut 06103
Telecopier No.: (860) 244-1897
Attention: Philip Kane
The Company, any Senior Note Guarantor or the Senior Note Trustee, by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA (S) 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Senior Note Trustee and each Agent at the same time.
Section 11.03. Communication by Holders of Senior Notes with Other Holders of
Senior Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other
Holders with respect to their rights under this Senior Note Indenture or the
Senior Notes. The Company, the Senior Note Trustee, the Registrar and anyone
else shall have the protection of TIA (S) 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Senior
Note Trustee to take any action under this Senior Note Indenture, the Company
shall furnish to the Senior Note Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Senior Note Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Senior Note
Indenture relating to the proposed action have been satisfied; and
76
<PAGE>
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Senior Note Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Senior Note Indenture (other than a
certificate provided pursuant to TIA (S) 314(a)(4)) shall comply with the
provisions of TIA (S) 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 11.06. Rules by Senior Note Trustee and Agents.
The Senior Note Trustee may make reasonable rules for action by
or at a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Senior Note Guarantor, as
such, shall have any liability for any obligations of the Company or such Senior
Note Guarantor under the Senior Notes, the Senior Subsidiary Guarantees, this
Senior Note Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Senior Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Notes.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SENIOR NOTE INDENTURE, THE SENIOR NOTES AND THE SENIOR
SUBSIDIARY GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
77
<PAGE>
Section 11.09. No Adverse Interpretation of Other Agreements.
This Senior Note Indenture may not be used to interpret any
other Senior Note Indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such Senior Note Indenture, loan or
debt agreement may not be used to interpret this Senior Note Indenture.
Section 11.10. Successors.
All agreements of the Company in this Senior Note Indenture and
the Senior Notes shall bind its successors. All agreements of the Senior Note
Trustee in this Senior Note Indenture shall bind its successors.
Section 11.11. Severability.
In case any provision in this Senior Note Indenture or in the
Senior Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Senior Note
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Senior Note Indenture have been inserted for
convenience of reference only, are not to be considered a part of this Senior
Note Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
[Signatures on following page]
78
<PAGE>
SIGNATURES
Dated as of May 18, 1998
P&L Coal Holdings Corporation
By:/s/ Felix Herlihy
-----------------------------
Name: Felix Herlihy
Title: Vice President, Treasurer and
Assistant Secretary
State Street Bank and Trust Company
By:/s/ Philip G. Kane, Jr.
-----------------------------
Name: Philip G. Kane, Jr.
Title: Vice President
Indenture signature page(s)
<PAGE>
EXHIBIT A1
(Face of Senior Note)
================================================================================
[Insert the Global Senior Note Legend, if applicable pursuant to the provisions
of the Senior Note Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Senior Note Indenture]
CUSIP/CINS
8-7/8% [Series A] [Series B] Senior Notes due 2008
No.___ $_______
P&L Coal Holdings Corporation
promises to pay to ____________ or registered assigns, the principal sum of
________________________ Dollars on ________ __,2008.
Interest Payment Dates: ________ __, and ________ __
Record Dates: ________ __ and ________ __
Dated: ________ __, 1998
P&L Coal Holdings Corporation
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
This is one of the [Global]
Senior Notes referred to in the
within-mentioned Senior Note Indenture:
State Street Bank and Trust Company,
as Senior Note Trustee
By:
-------------------
================================================================================
A1-1
<PAGE>
(Back of Senior Note)
8-7/8% [Series A] [Series B] Senior Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them in the
Senior Note Indenture referred to below unless otherwise indicated.
1. Interest. P&L Coal Holdings Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Senior Note
at 8-7/8% per annum from May 18, 1998 until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on May 15 and November 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 Senior Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Senior 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 November 15, 1998. 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 and
Liquidated Damages (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 of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Senior Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Senior Notes at the close of business on the May 1 or
November 1 next preceding the Interest Payment Date, even if such Senior Notes
are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Senior Note Indenture with respect to
defaulted interest. The Senior Notes will be payable as to principal, premium
and Liquidated Damages, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest and Liquidated
Damages may be made 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 and
interest, premium and Liquidated Damages on, all Global Senior Notes and all
other Senior Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. 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, State Street Bank and Trust
Company, the Senior Note Trustee under the Senior Note Indenture, will act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.
4. Senior Note Indenture. The Company issued the Senior Notes under an
Senior Note Indenture dated as of May 18, 1998 ("Senior Note Indenture") between
the Company and the Senior Note Trustee. The terms of the Senior Notes include
those stated in the Senior Note Indenture and those made part of the Senior Note
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code (S)(S) 77aaa-77bbbb). The Senior Notes are subject to all such terms, and
Holders are referred to the Senior Note Indenture and such Act for a statement
of such terms. To the extent any provision of this Senior Note conflicts with
the express provisions of the Senior Note Indenture, the provisions of the
A1-2
<PAGE>
Senior Note Indenture shall govern and be controlling. The Senior Notes are
obligations of the Company limited to $550.0 million in aggregate principal
amount.
5. Optional Redemption.
(a) The Senior Notes will be subject to redemption at any time at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice.
(b) Prior to May 15, 2003, the Senior Notes will be redeemable at a
redemption price equal to 100% of the principal amount thereof plus the
applicable Senior Notes Make Whole Premium, plus, to the extent not included in
the Senior Notes Make Whole Premium, accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption. For purposes of the foregoing,
"Senior Notes Make Whole Premium" means, with respect to a Senior Note, an
amount equal to the greater of (a) 104.438% of the outstanding principal amount
of such Senior Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior Note as if
such Senior Note were redeemed on May 15, 2003, computed using a discount rate
equal to the Treasury Rate plus 50 basis points, over (2) the outstanding
principal amount of such Senior Note.
(c) On or after May 15, 2003, the Senior Notes are redeemable at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on May 15 of the years indicated below:
Year Percentage
2003.............................. 104.438%
2004.............................. 102.958%
2005.............................. 101.479%
2006 and thereafter............... 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of this
Paragraph 5, during the first 36 months after the date of the closing of the
Acquisition, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Senior Notes issued under this Senior Note
Indenture at a redemption price of 108.875% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Senior Notes
issued remain outstanding immediately after the occurrence of such redemption
(excluding Senior Notes held by the Company and its Subsidiaries); and provided,
further, that such redemption shall occur within 120 days of the date of the
closing of such Equity Offering.
(e) Any redemption pursuant to this Paragraph 5 shall be made pursuant to
the provisions of Article 3 of the Senior Note Indenture.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be required
to make mandatory redemption payments with respect to the Senior Notes.
7. Special Mandatory Redemption.
In the event that the Escrow Account is released without the consummation
of the Acquisition (or if the Acquisition is not consummated within 30 days of
such deposit), the Company shall
A1-3
<PAGE>
redeem the Senior Notes at a redemption price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
redemption.
8. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Senior Notes
at a purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 10 days following any
Change of Control, the Company shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the Senior
Note Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company shall commence an offer to all Holders of
Senior Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the Senior Note
Indenture to purchase the maximum principal amount of Senior Notes (including
any Additional Senior Notes) that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date fixed for the closing of such offer, in accordance with the
procedures set forth in the Senior Note Indenture. To the extent that the
aggregate amount of Senior Notes (including any Additional Senior Notes)
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Subsidiary) may use such deficiency for general corporate
purposes. If the aggregate principal amount of Senior Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Senior Note Trustee
shall select the Senior Notes to be purchased on a pro rata basis. Holders of
Senior Notes that are the subject of an offer to purchase will receive an Asset
Sale Offer from the Company prior to any related purchase date and may elect to
have such Senior Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Senior Notes.
9. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Notes are to be redeemed at its registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Senior Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Senior Notes or portions thereof called for redemption.
10. Denominations, Transfer, Exchange. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and Senior
Notes may be exchanged as provided in the Senior Note Indenture. The Registrar
and the Senior Note Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Senior Note
Indenture. The Company need not exchange or register the transfer of any Senior
Note or portion of a Senior Note selected for redemption, except for the
unredeemed portion of any Senior Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Senior Notes for a period of
15 days before a selection of Senior Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
11. Persons Deemed Owners. The registered Holder of a Senior Note
may be treated as its owner for all purposes.
A1-4
<PAGE>
12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Senior Note Indenture, the Senior Subsidiary Guarantees or the
Senior Notes may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the then outstanding Senior Notes and
Additional Senior Notes, if any, voting as a single class, and any existing
default or compliance with any provision of the Senior Note Indenture, the
Senior Subsidiary Guarantees or the Senior Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Senior
Notes and Additional Senior Notes, if any, voting as a single class. Without the
consent of any Holder of a Senior Note, the Senior Note Indenture, the Senior
Subsidiary Guarantees or the Senior Notes may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for uncertificated Senior
Notes in addition to or in place of certificated Senior Notes, to provide for
the assumption of the Company's or Senior Note Guarantor's obligations to
Holders of the Senior 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 Senior Notes or that does not adversely affect the legal rights under the
Senior Note Indenture of any such Holder, to comply with the requirements of the
SEC in order to effect or maintain the qualification of the Senior Note
Indenture under the Trust Indenture Act, to provide for the Issuance of
Additional Senior Notes in accordance with the limitations set forth in the
Senior Note Indenture, or to allow any Senior Note Guarantor to execute a
supplemental Senior Note Indenture to the Senior Note Indenture and/or a Senior
Subsidiary Guarantee with respect to the Senior Notes.
13. Defaults and Remedies. An "Event of Default" occurs if: (i)
the Company defaults in the payment when due of interest on, or Liquidated
Damages, if any, with respect to, the Senior Notes and such default continues
for a period of 30 days; (ii) the Company defaults in the payment when due of
principal of or premium, if any, on the Senior Notes when the same becomes due
and payable at maturity, upon redemption (including in connection with an offer
to purchase) or otherwise; (iii) the Company or any of its Subsidiaries fails to
make the offer required or to purchase any of the Senior Notes as required by
Sections 4.10 and/or 4.15 of the Senior Note Indenture; (iv) the Company fails
to comply for 30 days after notice to the Company by the Senior Note Trustee
with any of the provisions of Sections 4.07 or 4.09 of the Senior Note
Indenture; or the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in the Senior Note Indenture or the
Senior Notes for 60 days after notice to the Company by the Senior Note Trustee
or the Holders of at least 25% in aggregate principal amount of the Senior Notes
then outstanding voting as a single class; (v) 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 for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of the Senior
Note 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 $50.0 million or more; (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any of its that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary and such judgment or judgments remain undischarged for
a period (during which execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such undischarged judgments exceeds $50.0
million; (vii) certain events of bankruptcy or insolvency occur with respect to
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; (viii) except as permitted by the Senior Note Indenture, any
Senior 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 Senior Note Guarantor, or any Person acting on behalf of any
Senior Note Guarantor, shall deny or disaffirm its obligations under such Senior
Note Guarantor's Senior Subsidiary Guarantee; or (ix) the Company fails to
deposit the required amounts into the Escrow Account pursuant to the Escrow
Letter or any failure of the proceeds of the Escrow Account to be applied as
required under the Escrow Letter.
A1-5
<PAGE>
If any Event of Default occurs and is continuing, the Senior Note
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Senior Notes may declare all the Senior Notes to be due and payable;
provided, that so long as any Indebtedness permitted to be incurred pursuant to
the Senior Credit Facilities shall be outstanding, such acceleration shall not
be effective until the earlier of (i) an acceleration under any such
Indebtedness under the Senior Credit Facilities or (ii) five Business Days after
receipt by the Company of written notice of such acceleration of the Senior
Notes. Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may not
enforce the Senior Note Indenture or the Senior Notes except as provided in the
Senior Note Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Senior Notes may direct the Senior Note
Trustee in its exercise of any trust or power. The Senior Note Trustee may
withhold from Holders of the Senior Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding by notice to the Senior Note Trustee may on behalf of the
Holders of all of the Senior Notes waive any existing Default or Event of
Default and its consequences under the Senior Note Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Senior Notes. The Company is required to deliver to the Senior Note Trustee
annually a statement regarding compliance with the Senior Note Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Senior Note Trustee a statement specifying such Default or
Event of Default.
14. Senior Note Trustee Dealings with Company. The Senior Note
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 Senior
Note Trustee.
15. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Senior Notes or the
Senior Note Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Senior Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
16. Authentication. This Senior Note shall not be valid until
authenticated by the manual signature of the Senior Note Trustee or an
authenticating agent.
17. 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).
18. Additional Rights of Holders of Restricted Global Senior Notes
and Restricted Definitive Senior Notes. In addition to the rights provided to
Holders of Senior Notes under the Senior Note Indenture, Holders of Restricted
Global Senior Notes and Restricted Definitive Senior Notes shall have all the
rights set forth in the A/B Exchange Registration Rights Agreement dated as of
May 18, 1998, between the Company and the parties named on the signature pages
thereof or, in the case of Additional Senior Notes, Holders of Restricted Global
Senior Notes and Restricted Definitive Senior Notes shall have the rights set
forth in one or more registration rights agreements, if any, between the Company
and the other parties thereto, relating to rights given by the Company to the
purchasers of any Additional Senior Notes (collectively, the "Registration
Rights Agreement").
A1-6
<PAGE>
19. 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 Senior Notes and the Senior Note 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 Senior 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 Senior Note Indenture and/or the Registration
Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Attention: Chief Legal Officer
A1-7
<PAGE>
Assignment Form
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint____________________________________________________
to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him.
Date:
-------------------
Your Signature:
-------------------------
(Sign exactly as your name appears on
the face of this Senior 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.
A1-8
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Senior Note Indenture, check the
box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Senior Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the Senior Note
Indenture, state the amount you elect to have purchased: $________
Date:
-------------------
Your Signature:
--------------------------
(Sign exactly as your name appears on
the face of this Senior 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.
A1-9
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL SENIOR NOTE/1/
The following exchanges of a part of this Global Senior Note for an
interest in another Global Senior Note or for a Definitive Senior Note, or
exchanges of a part of another Global Senior Note or Definitive Senior Note for
an interest in this Global Senior Note, have been made:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Global authorized
Principal Principal Senior Note officer of
Amount of Amount of following Senior Note
this Global this Global such decrease Trustee or
Date of Exchange Senior Note Senior Note (or increase) Custodian
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/1/ This should be included only if the Senior Note is issued in global form.
A1-10
<PAGE>
EXHIBIT A2
(Face of Regulation S Temporary Global Senior Note)
================================================================================
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SENIOR
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SENIOR NOTES, ARE AS SPECIFIED IN THE SENIOR NOTE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL SENIOR NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR NOTES
IN DEFINITIVE FORM, THIS SENIOR NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE 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.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE.
A2-1
<PAGE>
8-7/8% Series A Senior Notes due 2008
No.___ $____________
P&L Coal Holdings Corporation
promises to pay to ____________ or registered assigns, the principal sum of
________________________ Dollars on ________ __,2008.
Interest Payment Dates: ________ __, and ________ __
Record Dates: ________ __ and ________ __
Dated: ________ __, 1998
P&L Coal Holdings Corporation
By:---------------------------
Name:
Title:
By:---------------------------
Name:
Title:
This is one of the [Global]
Senior Notes referred to in the
within-mentioned Senior Note Indenture:
State Street Bank and Trust Company,
as Senior Note Trustee
By:
================================================================================
A2-2
<PAGE>
(Back of Regulation S Temporary Global Senior Note)
8-7/8% Series A Senior Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Senior Note Indenture referred to below unless otherwise indicated.
1. Interest. P&L Coal Holdings Corporation, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Senior
Note at 8-7/8% per annum from May 18, 1998 until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on May 15 and November 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 Senior Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Senior 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 November 15, 1998. 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 and
Liquidated Damages (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 of twelve 30-day months.
Until this Regulation S Temporary Global Senior Note is exchanged for
one or more Regulation S Permanent Global Senior Notes, the Holder hereof shall
not be entitled to receive payments of interest hereon; until so exchanged in
full, this Regulation S Temporary Global Senior Note shall in all other respects
be entitled to the same benefits as other Senior Notes under the Senior Note
Indenture.
2. Method of Payment. The Company will pay interest on the Senior
Notes (except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Senior Notes at the close of business on the May 1 or
November 1 next preceding the Interest Payment Date, even if such Senior Notes
are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Senior Note Indenture with respect to
defaulted interest. The Senior Notes will be payable as to principal, premium,
interest and Liquidated Damages at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Liquidated Damages may
be made 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 and interest,
premium and Liquidated Damages on, all Global Senior Notes and all other Senior
Notes the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent. 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, State Street Bank and
Trust Company, the Senior Note Trustee under the Senior Note Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
A2-3
<PAGE>
4. Senior Note Indenture. The Company issued the Senior Notes under
an Senior Note Indenture dated as of May 18, 1998 ("Senior Note Indenture")
between the Company and the Senior Note Trustee. The terms of the Senior Notes
include those stated in the Senior Note Indenture and those made part of the
Senior Note Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Senior Notes are subject to all
such terms, and Holders are referred to the Senior Note Indenture and such Act
for a statement of such terms. The Senior Notes are secured obligations of the
Company limited to $550.0 million in aggregate principal amount.
5. Optional Redemption.
(a) The Senior Notes will be subject to redemption at any time at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice.
(b) Prior to May 15, 2003, the Senior Notes will be redeemable at a
redemption price equal to 100% of the principal amount thereof plus the
applicable Senior Notes Make Whole Premium, plus, to the extent not included in
the Senior Notes Make Whole Premium, accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption. For purposes of the foregoing,
"Senior Notes Make Whole Premium" means, with respect to a Senior Note, an
amount equal to the greater of (a) 104.438% of the outstanding principal amount
of such Senior Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior Note as if
such Senior Note were redeemed on May 15, 2003, computed using a discount rate
equal to the Treasury Rate plus 50 basis points, over (2) the outstanding
principal amount of such Senior Note.
(c) On or after May 15, 2003, the Senior Notes are redeemable at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on May 15 of the years indicated below:
Year Percentage
2003 ................................... 104.438%
2004 ................................... 102.958%
2005 ................................... 101.479%
2006 and thereafter..................... 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of
this Paragraph 5, during the first 36 months after the date of the closing of
the Acquisition, the Company may on any one or more occasions redeem up to 35%
of the aggregate principal amount of Senior Notes issued under this Senior Note
Indenture at a redemption price of 108.875% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Senior Notes
issued remain outstanding immediately after the occurrence of such redemption
(excluding Senior Notes held by the Company and its Subsidiaries); and provided,
further, that such redemption shall occur within 120 days of the date of the
closing of such Equity Offering.
(e) Any redemption pursuant to this Paragraph 5 shall be made
pursuant to the provisions of Article 3 of the Senior Note Indenture.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Senior Notes.
A2-4
<PAGE>
7. Special Mandatory Redemption.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Notes at a
redemption price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of redemption.
8. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Senior Notes at a
purchase price 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 10 days following any Change of Control, the Company
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Senior Note Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company shall commence an offer to all Holders of
Senior Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the Senior Note
Indenture to purchase the maximum principal amount of Senior Notes that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date fixed for the closing of such offer, in accordance with the
procedures set forth in the Senior Note Indenture. To the extent that the
aggregate amount of Senior Notes tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Company (or such Subsidiary) may use such
deficiency for general corporate purposes. If the aggregate principal amount of
Senior Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Senior Note Trustee shall select the Senior Notes to be purchased
on a pro rata basis. Holders of Senior Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Senior Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Senior Notes.
9. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Notes are to be redeemed at its registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Senior Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Senior Notes or portions thereof called for redemption.
10. Denominations, Transfer, Exchange. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and Senior
Notes may be exchanged as provided in the Senior Note Indenture. The Registrar
and the Senior Note Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Senior Note
Indenture. The Company need not exchange or register the transfer of any Senior
Note or portion of a Senior Note selected for redemption, except for the
unredeemed portion of any Senior Note being redeemed in part. Also, it need not
exchange or register the transfer of any Senior Notes for a period of 15 days
before a selection of Senior Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
A2-5
<PAGE>
This Regulation S Temporary Global Senior Note is exchangeable in
whole or in part for one or more Global Senior Notes only (i) on or after the
termination of the 40-day restricted period (as defined in Regulation S) and
(ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Senior Note Indenture. Upon exchange
of this Regulation S Temporary Global Senior Note for one or more Global Senior
Notes, the Senior Note Trustee shall cancel this Regulation S Temporary Global
Senior Note.
11. Persons Deemed Owners. The registered Holder of a Senior Note
may be treated as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Senior Notes and Additional
Senior Notes, if any, voting as a single class, and any existing default or
compliance with any provision of the Senior Note Indenture, the Senior
Subsidiary Guarantees or the Senior Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Senior Notes
and Additional Senior Notes, if any, voting as a single class. Without the
consent of any Holder of a Senior Note, the Senior Note Indenture, the Senior
Subsidiary Guarantees or the Senior Notes may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for uncertificated Senior
Notes in addition to or in place of certificated Senior Notes, to provide for
the assumption of the Company's or Senior Note Guarantor's obligations to
Holders of the Senior 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 Senior Notes or that does not adversely affect the legal rights under the
Senior Note Indenture of any such Holder, to comply with the requirements of the
SEC in order to effect or maintain the qualification of the Senior Note
Indenture under the Trust Indenture Act, to provide for the Issuance of
Additional Senior Notes in accordance with the limitations set forth in the
Senior Note Indenture, or to allow any Senior Note Guarantor to execute a
supplemental Senior Note Indenture to the Senior Note Indenture and/or a Senior
Subsidiary Guarantee with respect to the Senior Notes.
13. Defaults and Remedies. An "Event of Default" occurs if: (i) the
Company defaults in the payment when due of interest on, or Liquidated Damages,
if any, with respect to, the Senior Notes and such default continues for a
period of 30 days; (ii) the Company defaults in the payment when due of
principal of or premium, if any, on the Senior Notes when the same becomes due
and payable at maturity, upon redemption (including in connection with an offer
to purchase) or otherwise; (iii) the Company or any of its Subsidiaries fails to
make the offer required or to purchase any of the Senior Notes as required by
Sections 4.10 and/or 4.15 of the Senior Note Indenture; (iv) the Company fails
to comply for 30 days after notice to the Company by the Senior Note Trustee
with any of the provisions of Sections 4.07 or 4.09 of the Senior Note
Indenture; or the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in the Senior Note Indenture or the
Senior Notes for 60 days after notice to the Company by the Senior Note Trustee
or the Holders of at least 25% in aggregate principal amount of the Senior Notes
then outstanding voting as a single class; (v) 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 for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of the Senior
Note 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 $50.0 million or more; (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any of its that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary and such judgment or judgments remain undischarged for
a period (during which execution shall not be effectively stayed) of 60 days,
provided
A2-6
<PAGE>
that the aggregate of all such undischarged judgments exceeds $50.0 million;
(vii) certain events of bankruptcy or insolvency occur with respect to 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;
(viii) except as permitted by the Senior Note Indenture, any Senior 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 Senior Note
Guarantor, or any Person acting on behalf of any Senior Note Guarantor, shall
deny or disaffirm its obligations under such Senior Note Guarantor's Senior
Subsidiary Guarantee; or (ix) the Company fails to deposit the required amounts
into the Escrow Account pursuant to the Escrow Letter or any failure of the
proceeds of the Escrow Account to be applied as required under the Escrow
Letter.
If any Event of Default occurs and is continuing, the Senior Note
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Senior Notes may declare all the Senior Notes to be due and payable;
provided, that so long as any Indebtedness permitted to be incurred pursuant to
the Senior Credit Facilities shall be outstanding, such acceleration shall not
be effective until the earlier of (i) an acceleration under any such
Indebtedness under the Senior Credit Facilities or (ii) five Business Days after
receipt by the Company of written notice of such acceleration of the Senior
Notes. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Senior
Notes will become due and payable without further action or notice. Holders may
not enforce the Senior Note Indenture or the Senior Notes except as provided in
the Senior Note Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Senior Notes may direct the
Senior Note Trustee in its exercise of any trust or power. The Senior Note
Trustee may withhold from Holders of the Senior Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount
of the Senior Notes then outstanding by notice to the Senior Note Trustee may on
behalf of the Holders of all of the Senior Notes waive any existing Default or
Event of Default and its consequences under the Senior Note Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Senior Notes. The Company is required to deliver to the
Senior Note Trustee annually a statement regarding compliance with the Senior
Note Indenture, and the Company is required upon becoming aware of any Default
or Event of Default, to deliver to the Senior Note Trustee a statement
specifying such Default or Event of Default.
14. Senior Note Trustee Dealings with Company. The Senior Note
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 Senior
Note Trustee.
15. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company or any of the Senior Note
Guarantors, as such, shall not have any liability for any obligations of the
Company or such Senior Note Guarantor under the Senior Notes, the Senior
Subsidiary Guarantees or the Senior Note Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Senior Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Senior Notes.
16. Authentication. This Senior Note shall not be valid until
authenticated by the manual signature of the Senior Note Trustee or an
authenticating agent.
17. 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
A2-7
<PAGE>
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).
18. Additional Rights of Holders of Restricted Global Senior Notes
and Restricted Definitive Senior Notes. In addition to the rights provided to
Holders of Senior Notes under the Senior Note Indenture, Holders of Restricted
Global Senior Notes and Restricted Definitive Senior Notes shall have all the
rights set forth in the A/B Exchange Registration Rights Agreement dated as of
May 18, 1998, between the Company and the parties named on the signature pages
thereof or, in the case of Additional Senior Notes, Holders of Restricted Global
Senior Notes and Restricted Definitive Senior Notes shall have the rights set
forth in one or more registration rights agreements, if any, between the Company
and the other parties thereto, relating to rights given by the Company to the
purchasers of any Additional Senior Notes (collectively, the "Registration
Rights Agreement").
19. 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 Senior Notes and the Senior Note 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 Senior 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 Senior Note Indenture and/or the Registration
Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Attention: Chief Legal Officer
A2-8
<PAGE>
Assignment Form
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
_____
to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date:___________
Your Signature:-------------------------------------
(Sign exactly as your name appears on the face of
this Senior 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.
A2-9
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Senior Note Indenture, check the
appropriate box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Senior Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Senior
Note Indenture, stat e the amount you elect to have purchased: $___________
- --------------------------------------------------------------------------------
Date:_____________
Your Signature:-----------------------------------------------
(Sign exactly as your name appears on the face of this
Senior 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.
A2-10
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE REGULATION S TEMPORARY GLOBAL SENIOR NOTE
The following exchanges of a part of this Regulation S Temporary
Global Senior Note for an interest in another Global Senior Note, or of other
Restricted Global Senior Notes for an interest in this Regulation S Temporary
Global Senior Note, have been made:
<TABLE>
<CAPTION> Principal Amount
Amount of of this Global Signature of
decrease in Amount of increase Senior Note authorized officer
Principal Amount in Principal following such of Senior Note
of this Global Amount of this decrease (or Trustee or
Date of Exchange Senior Note Global Senior Note increase) Custodian
<C> <S> <S> <S> <S>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
A2-11
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut
Re: 8-7/8% Senior Notes due 2008
----------------------------
(CUSIP __________)
Reference is hereby made to the Senior Note Indenture, dated as of May
18, 1998 (the "Senior Note Indenture"), between P&L Coal Holdings Corporation,
as issuer (the "Company"), and State Street Bank and Trust Company, as Senior
Note Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Senior Note Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Senior Note[s] or interest in such Senior Note[s] specified in Annex A hereto,
in the principal amount of $___________ in such Senior Note[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
144A Global Senior Note or a Definitive Senior Note Pursuant to Rule 144A. The
- -------------------------------------------------------------------------
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Senior Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Senior Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Senior Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Senior Note and/or the Definitive Senior Note and in the Senior
Note Indenture and the Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
Temporary Regulation S Global Senior Note, the Regulation S Global Senior Note
- ------------------------------------------------------------------------------
or a Definitive Senior Note pursuant to Regulation S. The Transfer is being
- ----------------------------------------------------
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the
<PAGE>
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act and, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Senior Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Senior Note, the Temporary Regulation S Global Senior
Note and/or the Definitive Senior Note and in the Senior Note Indenture and the
Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
-------------------------------------------------------------------
interest in the IAI Global Senior Note or a Definitive Senior Note pursuant to
- ------------------------------------------------------------------------------
any provision of the Securities Act other than Rule 144A or Regulation S. The
- ------------------------------------------------------------------------
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Senior Notes and
Restricted Definitive Senior Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Senior Note or Restricted Definitive Senior Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the Senior
Note Indenture and (2) if such Transfer is in respect of a principal amount of
Senior Notes at the time of transfer of less than $250,000, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such Transfer
is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Senior Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Senior Note and/or the Definitive Senior Notes and in the Senior
Note Indenture and the Securities Act.
B-2
<PAGE>
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Senior Note or of an Unrestricted Definitive Senior Note.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Senior
Note Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Senior Note
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Senior Note Indenture, the transferred
beneficial interest or Definitive Senior Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Senior Notes, on Restricted Definitive Senior Notes and in
the Senior Note Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Senior Note Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Senior Note Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Senior
Note Indenture, the transferred beneficial interest or Definitive Senior Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Senior Notes, on
Restricted Definitive Senior Notes and in the Senior Note Indenture.
(c) [_] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Senior Note Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Senior Note Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Senior Note Indenture, the
transferred beneficial interest or Definitive Senior Note will not be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Senior Notes or Restricted Definitive Senior Notes and
in the Senior Note Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
--------------------------------------
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated: ________ __, ____
B-3
<PAGE>
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Senior Note (CUSIP _________), or
(ii) [_] Regulation S Global Senior Note (CUSIP _________), or
(iii) [_] IAI Global Senior Note (CUSIP ________); or
(b) [_] a Restricted Definitive Senior Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Senior Note (CUSIP ________), or
(ii) [_] Regulation S Global Senior Note (CUSIP ________), or
(iii) [_] IAI Global Senior Note (CUSIP ________); or
(iv) [_] Unrestricted Global Senior Note (CUSIP ________); or
(b) [_] a Restricted Definitive Senior Note; or
(c) [_] an Unrestricted Definitive Senior Note,
in accordance with the terms of the Senior Note Indenture.
B-4
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut
Re: 8-7/8% Senior Notes due 2008
----------------------------
(CUSIP __________)
Reference is hereby made to the Senior Note Indenture, dated as of May
18, 1998 (the "Senior Note Indenture"), between P&L Coal Holdings Corporation,
as issuer (the "Company"), and State Street Bank and Trust Company, as Senior
Note Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Senior Note Indenture.
____________, (the "Owner") owns and proposes to exchange the Senior
Note[s] or interest in such Senior Note[s] specified herein, in the principal
amount of $____________ in such Senior Note[s] or interests (the "Exchange").
In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Senior Notes or Beneficial Interests in a
Restricted Global Senior Note for Unrestricted Definitive Senior Notes or
Beneficial Interests in an Unrestricted Global Senior Note
(a) [_] Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------
Global Senior Note to beneficial interest in an Unrestricted Global Senior Note.
- -------------------------------------------------------------------------------
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Senior Note for a beneficial interest in an Unrestricted
Global Senior Note in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Senior Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Senior
Note Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Senior Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) [_] Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------
Global Senior Note to Unrestricted Definitive Senior Note. In connection with
- ---------------------------------------------------------
the Exchange of the Owner's beneficial interest in a Restricted Global Senior
Note for an Unrestricted Definitive Senior Note, the Owner hereby certifies (i)
the Definitive Senior Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Senior Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Note Indenture and the Private Placement Legend are not
required in order
<PAGE>
to maintain compliance with the Securities Act and (iv) the Definitive Senior
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) [_] Check if Exchange is from Restricted Definitive Senior Note to
--------------------------------------------------------------
beneficial interest in an Unrestricted Global Senior Note. In connection with
- ---------------------------------------------------------
the Owner's Exchange of a Restricted Definitive Senior Note for a beneficial
interest in an Unrestricted Global Senior Note, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Senior Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Note Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(d) [_] Check if Exchange is from Restricted Definitive Senior Note to
--------------------------------------------------------------
Unrestricted Definitive Senior Note. In connection with the Owner's Exchange of
- -----------------------------------
a Restricted Definitive Senior Note for an Unrestricted Definitive Senior Note,
the Owner hereby certifies (i) the Unrestricted Definitive Senior Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Senior Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Senior Note
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Senior
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. Exchange of Restricted Definitive Senior Notes or Beneficial Interests in
Restricted Global Senior Notes for Restricted Definitive Senior Notes or
Beneficial Interests in Restricted Global Senior Notes
(a) [_] Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------
Global Senior Note to Restricted Definitive Senior Note. In connection with the
- -------------------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Senior Note
for a Restricted Definitive Senior Note with an equal principal amount, the
Owner hereby certifies that the Restricted Definitive Senior Note is being
acquired for the Owner's own account without transfer. Upon consummation of the
proposed Exchange in accordance with the terms of the Senior Note Indenture, the
Restricted Definitive Senior Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Senior Note and in the Senior Note Indenture and the
Securities Act.
(b) [_] Check if Exchange is from Restricted Definitive Senior Note to
--------------------------------------------------------------
beneficial interest in a Restricted Global Senior Note. In connection with the
- ------------------------------------------------------
Exchange of the Owner's Restricted Definitive Senior Note for a beneficial
interest in the [CHECK ONE] [_] 144A Global Senior Note, [_] Regulation S Global
Senior Note, [_] IAI Global Senior Note with an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Senior Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with the
terms of the Senior Note Indenture, the beneficial interest issued will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Senior Note and in the Senior
Note Indenture and the Securities Act.
C-2
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
--------------------------------------
[Insert Name of Owner]
By:
-----------------------------------
Name:
Title:
Dated: ________________, ____
C-3
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut
Re: 8-7/8% Senior Notes due 2008
----------------------------
(CUSIP __________)
Reference is hereby made to the Senior Note Indenture, dated as of May
18, 1998 (the "Senior Note Indenture"), between P&L Coal Holdings Corporation,
as issuer (the "Company"), and State Street Bank and Trust Company, as Senior
Note Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Senior Note Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Senior Note, or
(b) [_] a Definitive Senior Note,
we confirm that:
1. We understand that any subsequent transfer of the Senior Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Senior Note Indenture and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Senior Notes or any interest therein
except in compliance with, such restrictions and conditions and the United
States Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior Notes have
not been registered under the Securities Act, and that the Senior Notes and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Senior Notes or
any interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (c) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Senior Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to
<PAGE>
the effect that such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing the
Definitive Senior Note or beneficial interest in a Global Senior Note from us in
a transaction meeting the requirements of clauses (A) through (E) of this
paragraph a notice advising such purchaser that resales thereof are restricted
as stated herein.
3. We understand that, on any proposed resale of the Senior Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Senior Notes
purchased by us will bear a legend to the foregoing effect. We further
understand that any subsequent transfer by us of the Senior Notes or beneficial
interest therein acquired by us must be effected through one of the Placement
Agents.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Senior Notes, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Senior Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
------------------------------------------
[Insert Name of Accredited Investor]
By:
------------------------------------
Name:
Title:
Dated: __________________, ____
D-2
<PAGE>
EXHIBIT E
FORM OF NOTATION OF SENIOR SUBSIDIARY GUARANTEE
For value received, each Senior Note Guarantor (which term includes
any successor Person under the Senior Note Indenture) has, jointly and
severally, unconditionally guaranteed, to the extent set forth in the Senior
Note Indenture and subject to the provisions in the Senior Note Indenture dated
as of May 18, 1998 (the "Senior Note Indenture") among P&L Coal Holdings
Corporation, the Senior Note Guarantors listed on Schedule I thereto and State
Street Bank and Trust Company, as Senior Note Trustee (the "Senior Note
Trustee"), (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Senior Notes (as defined in the Senior Note 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 Senior Note Trustee all
in accordance with the terms of the Senior Note Indenture and (b) in case of any
extension of time of payment or renewal of any Senior 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 Senior Note
Guarantors to the Holders of Senior Notes and to the Senior Note Trustee
pursuant to the Senior Subsidiary Guarantee and the Senior Note Indenture are
expressly set forth in Article 10 of the Senior Note Indenture and reference is
hereby made to the Senior Note Indenture for the precise terms of the Senior
Subsidiary Guarantee. Each Holder of a Senior Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Senior Note Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Senior Note Indenture and (c) appoints the Senior Note Trustee attorney-in-fact
of such Holder for such purpose; provided, however, that the Indebtedness
evidenced by this Senior Subsidiary Guarantee shall cease to be so subordinated
and subject in right of payment upon any defeasance of this Senior Note in
accordance with the provisions of the Senior Note Indenture.
[Name of Senior Note Guarantor(s)]
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT F
FORM OF SUPPLEMENTAL SENIOR NOTE INDENTURE
TO BE DELIVERED BY SUBSEQUENT SENIOR NOTE GUARANTORS
Supplemental Senior Note Indenture (this "Supplemental Senior Note
Indenture"), dated as of ________________, among __________________ (the
"Guaranteeing Subsidiary"), a subsidiary of P&L Coal Holdings Corporation (or
its permitted successor), a Delaware corporation (the "Company"), the Company,
the other Senior Note Guarantors (as defined in the Senior Note Indenture
referred to herein) and State Street Bank and Trust Company, as Senior Note
Trustee under the Senior Note Indenture referred to below (the "Senior Note
Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Senior Note Trustee an Senior Note Indenture (the "Senior Note Indenture"),
dated as of May 18, 1998 providing for the issuance of an aggregate principal
amount of up to $550.0 million of 8-7/8% Senior Notes due 2008 (the "Senior
Notes");
WHEREAS, the Senior Note Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Senior Note Trustee a supplemental Senior Note Indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's
Obligations under the Senior Notes and the Senior Note Indenture on the terms
and conditions set forth herein (the "Senior Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Note Indenture, the
Senior Note Trustee is authorized to execute and deliver this Supplemental
Senior Note 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 Senior Note Trustee mutually covenant and agree
for the equal and ratable benefit of the Holders of the Senior Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Note
Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Senior Note Guarantors named in the Senior Note
Indenture, to jointly and severally Guarantee to each Holder of
a Senior Note authenticated and delivered by the Senior Note
Trustee and to the Senior Note Trustee and its successors and
assigns, irrespective of the validity and enforceability of the
Senior Note Indenture, the Senior Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest on the Senior 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 Senior
Notes, if any, if lawful, and all other obligations of
the Company to the Holders or the Senior Note Trustee
hereunder or thereunder will
<PAGE>
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 Senior 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
Senior Note 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 Senior
Notes or the Senior Note Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the
Senior 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 Senior Note 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 Senior Subsidiary Guarantee shall not be discharged except
by complete performance of the obligations contained in the
Senior Notes and the Senior Note Indenture.
(e) If any Holder or the Senior Note Trustee is required by any
court or otherwise to return to the Company, the Senior Note
Guarantors, or any custodian, Senior Note Trustee, liquidator
or other similar official acting in relation to either the
Company or the Senior Note Guarantors, any amount paid by
either to the Senior Note Trustee or such Holder, this Senior
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 Senior Note Guarantors, on the one hand, and the
Holders and the Senior Note Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Senior Note
Indenture for the purposes of this Senior 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 Senior Note Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the
Senior Note Guarantors for the purpose of this Senior
Subsidiary Guarantee.
F-2
<PAGE>
(h) The Senior Note Guarantors shall have the right to seek
contribution from any non-paying Senior Note Guarantor so long
as the exercise of such right does not impair the rights of the
Holders under the Senior Subsidiary Guarantee.
(i) Pursuant to Section 10.04 of the Senior Note 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 Senior Note
Guarantor in respect of the obligations of such other Senior
Note Guarantor under Article 10 of the Senior Note Indenture
shall result in the obligations of such Senior Note Guarantor
under its Senior Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees
that the Senior Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Senior 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 Senior Note Guarantor is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Senior Note Guarantor unless:
(i) subject to Section 10.04 of the Senior Note Indenture, the
Person formed by or surviving any such consolidation or merger
(if other than a Senior Note Guarantor or the Company)
unconditionally assumes all the obligations of such Senior Note
Guarantor, pursuant to a supplemental Senior Note Indenture in
form and substance reasonably satisfactory to the Senior Note
Trustee, under the Senior Notes, the Senior Note Indenture and
the Senior 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 exists.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
Senior Note Indenture, executed and delivered to the Senior Note
Trustee and satisfactory in form to the Senior Note Trustee, of the
Senior Subsidiary Guarantee endorsed upon the Senior Notes and the
due and punctual performance of all of the covenants and conditions
of the Senior Note Indenture to be performed by the Senior Note
Guarantor, such successor corporation shall succeed to and be
substituted for the Senior Note Guarantor with the same effect as if
it had been named herein as a Senior Note Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the Senior
Subsidiary Guarantees to be endorsed upon all of the Senior Notes
issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Senior Note Trustee. All the Senior
Subsidiary Guarantees so issued shall in all respects have the same
legal rank and benefit under the Senior Note Indenture as the Senior
Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of the Senior Note Indenture as though all of such
Senior Subsidiary Guarantees had been issued at the date of the
execution hereof.
F-3
<PAGE>
(c) Except as set forth in Articles 4 and 5 of the Senior Note
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in
the Senior Note Indenture or in any of the Senior Notes shall prevent any
consolidation or merger of a Senior Note Guarantor with or into the Company or
another Senior Note Guarantor, or shall prevent any sale or conveyance of the
property of a Senior Note Guarantor as an entirety or substantially as an
entirety to the Company or another Senior Note Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Senior Note Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the capital stock
of any Senior Note Guarantor, then such Senior Note Guarantor (in the
event of a sale or other disposition, by way of merger, consolidation
or otherwise, of all of the capital stock of such Senior Note
Guarantor) or the corporation acquiring the property (in the event of
a sale or other disposition of all or substantially all of the assets
of such Senior Note Guarantor) will be released and relieved of any
obligations under its Senior Subsidiary Guarantee; provided that the
Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Senior Note
Indenture, including without limitation Section 4.10 of the Senior
Note Indenture. Upon delivery by the Company to the Senior Note
Trustee of an Officer's Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Senior Note Indenture,
including without limitation Section 4.10 of the Senior Note
Indenture, the Senior Note Trustee shall execute any documents
reasonably required in order to evidence the release of any Senior
Note Guarantor from its obligations under its Senior Subsidiary
Guarantee.
(b) Any Senior Note Guarantor not released from its obligations under its
Senior Subsidiary Guarantee shall remain liable for the full amount
of principal of and interest on the Senior Notes and for the other
obligations of any Senior Note Guarantor under the Senior Note
Indenture as provided in Article 10 of the Senior Note 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 Senior Notes, any Senior
Subsidiary Guarantees, the Senior Note Indenture or this Supplemental Senior
Note Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Senior Notes by accepting a
Senior Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Senior 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 INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR NOTE
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
8. Counterparts The parties may sign any number of copies of this
Supplemental Senior Note Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
F-4
<PAGE>
9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. The Senior Note Trustee. The Senior Note Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Senior Note 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.
F-5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Senior Note Indenture to be duly executed and attested, all as of the date first
above written.
Dated: ________ __, ____
[Guaranteeing Subsidiary]
By:
--------------------------------
Name:
Title:
P&L Coal Holdings Corporation
By:
--------------------------------
Name:
Title:
[EXISTING SENIOR NOTE GUARANTORS]
By:
--------------------------------
Name:
Title:
State Street Bank and Trust Company
as Senior Note Trustee
By:
--------------------------------
Name:
Title:
F-6
<PAGE>
Schedule I
SCHEDULE OF SENIOR NOTE GUARANTORS
The following schedule lists each Senior Note Guarantor under the
Senior Note Indenture as of the Issue Date:
1. Arid Operations Inc., a Delaware corporation.
2. Darius Gold Mine, Inc., a Delaware corporation.
3. Gold Fields Chile, S.A., a Delaware corporation.
4. Gold Fields Mining Corporation, a Delaware corporation.
5. Gold Fields Operating Co. - Ortiz, a Delaware corporation.
6. Peabody America, Inc., a Delaware corporation.
7. Peabody Holding Company, Inc., a New York corporation.
8. Affinity Mining Company, a West Virginia corporation.
9. Big Sky Coal Company, a Delaware corporation.
10. Blackrock First Capital Corporation, a West Virginia corporation.
11. Bluegrass Coal Company, a Delaware corporation.
12. Caballo Coal Company, a Delaware corporation.
13. Charles Coal Company, a Delaware corporation.
14. Coal Properties Corp., a Delaware corporation.
15. Cook Mountain Coal Company, a Delaware corporation.
16. Cottonwood Land Company, a Delaware corporation.
17. EACC Camps, Inc., a West Virginia corporation.
18. Eastern Associated Coal Corp, a West Virginia corporation.
19. Eastern Royalty Corp., a Delaware corporation.
20. Grand Eagle Mining, Inc., a Kentucky corporation.
21. Hayden Gulch Terminal, Inc., a Delaware corporation.
22. Independence Material Handling Company, a Delaware corporation.
23. Interior Holdings Corp., a Delaware corporation.
24. James River Coal Terminal Company, a Delaware corporation.
25. Juniper Coal Company, a Delaware corporation.
26. Kayenta Mobile Home Park, Inc., a Delaware corporation.
27. Martinka Coal Company, a Delaware corporation.
28. Midco Supply and Equipment Corporation, an Illinois corporation.
29. Midwest Coal Resources, Inc., a Delaware corporation.
30. Mountain View Coal Company, a Delaware corporation.
31. North Page Coal Corp., a West Virginia corporation.
32. Ohio County Coal Company, a Kentucky corporation.
33. Patriot Coal Company, L.P., a Delaware limited partnership.
34. Peabody COALSALES Company, a Delaware corporation.
35. Peabody COALTRADE, Inc., a Delaware corporation.
36. Peabody Coal Company, a Delaware corporation.
37. Peabody Development Company, a Delaware corporation.
38. Peabody Energy Solutions, Inc., a Delaware corporation.
39. Peabody Natural Resources Company, a Delaware general partnership.
40. Peabody Terminals, Inc., a Delaware corporation.
41. Peabody Venezuela Coal Corp., a Delaware corporation.
42. Peabody Western Coal Company, a Delaware corporation.
43. Pine Ridge Coal Company, a Delaware corporation.
44. Powder River Coal Company, a Delaware corporation.
<PAGE>
45. Rio Escondido Coal Corp., a Delaware corporation.
46. Seneca Coal Company, a Delaware corporation.
47. Sentry Mining Company, a Delaware corporation.
48. Snowberry Land Company, a Delaware corporation.
49. Sterling Smokeless Coal Company, a West Virginia corporation.
50. Thoroughbred, L.L.C., a Delaware limited liability company.
51. Colony Bay Coal Company, a West Virginia partnership.
<PAGE>
EXHIBIT 4.2
Execution Copy
================================================================================
P&L Coal Holdings Corporation
SERIES A AND SERIES B
9-5/8% SENIOR SUBORDINATED NOTES DUE 2008
SENIOR SUBORDINATED NOTE INDENTURE
Dated as of May 18, 1998
State Street Bank and Trust Company
Senior Subordinated Note Trustee
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Senior Subordinated
Note Indenture Section
310 (a)(1)............................................................. 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.10
(i)(b)................................................................. 7.10
(ii)(c)................................................................ N.A.
311(a)................................................................. 7.11
(b).................................................................... 7.11
(iii)(c)............................................................... N.A.
312(a)................................................................. 2.05
(b).................................................................... 12.03
(iv)(c)................................................................ 12.03
313(a)................................................................. 7.06
(b)(2)................................................................. 7.07
(v)(c)................................................................. 7.06;
12.02
(vi)(d)................................................................ 7.06
314(a)................................................................. 4.03;
12.02
(c)(1)................................................................. 12.04
(c)(2)................................................................. 12.04
(c)(3)................................................................. N.A.
(vii)(e)............................................................... 12.05
(f).................................................................... NA
315(a)................................................................. 7.01
(b).................................................................... 7.05,
12.02
(A)(c)................................................................. 7.01
(d).................................................................... 7.01
(e).................................................................... 6.11
316(a)(last sentence).................................................. 2.09
(a)(1)(A).............................................................. 6.05
(a)(1)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.07
(B)(c)................................................................. 2.12
317(a)(1).............................................................. 6.08
(a)(2)................................................................. 6.09
(b).................................................................... 2.04
318(a)................................................................. 12.01
(b).................................................................... N.A.
(c).................................................................... 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Senior Subordinated Note
Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
Section 1.01. Definitions............................................... 1
Section 1.02. Other Definitions......................................... 18
Section 1.03. Incorporation by Reference of Trust Indenture Act......... 19
Section 1.04. Rules of Construction..................................... 19
ARTICLE 2.
THE SENIOR SUBORDINATED NOTES...................... 20
Section 2.01. Form and Dating........................................... 20
Section 2.02. Execution and Authentication.............................. 21
Section 2.03. Registrar and Paying Agent................................ 22
Section 2.04. Paying Agent to Hold Money in Trust....................... 22
Section 2.05. Holder Lists.............................................. 23
Section 2.06. Transfer and Exchange..................................... 23
Section 2.07. Replacement Senior Subordinated Notes..................... 36
Section 2.08. Outstanding Senior Subordinated Notes..................... 37
Section 2.09. Treasury Senior Subordinated Notes........................ 37
Section 2.10. Temporary Senior Subordinated Notes....................... 37
Section 2.11. Cancellation.............................................. 38
Section 2.12. Defaulted Interest........................................ 38
Section 2.13. CUSIP Numbers............................................. 38
ARTICLE 3.
REDEMPTION AND PREPAYMENT........................ 39
Section 3.01. Notices to Senior Subordinated Note Trustee............... 39
Section 3.02. Selection of Senior Subordinated Notes to Be Redeemed..... 39
Section 3.03. Notice of Redemption...................................... 39
Section 3.04. Effect of Notice of Redemption............................ 40
Section 3.05. Deposit of Redemption Price............................... 40
Section 3.06. Senior Subordinated Notes Redeemed in Part................ 41
Section 3.07. Optional Redemption....................................... 41
Section 3.08. Mandatory Redemption...................................... 42
Section 3.09. Offer to Purchase by Application of Excess Proceeds....... 42
Section 3.10. Special Mandatory Redemption.............................. 44
ARTICLE 4.
COVENANTS................................ 44
Section 4.01. Payment of Senior Subordinated Notes...................... 44
Section 4.02. Maintenance of Office or Agency........................... 44
Section 4.03. Reports................................................... 45
Section 4.04. Compliance Certificate.................................... 45
Section 4.05. Taxes..................................................... 46
Section 4.06. Stay, Extension and Usury Laws............................ 46
Section 4.07. Restricted Payments....................................... 46
i
<PAGE>
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries.............................................. 50
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock 51
Section 4.10. Asset Sales............................................... 54
Section 4.11. Transactions with Affiliates.............................. 55
Section 4.12. Liens..................................................... 56
Section 4.13. Business activities....................................... 56
Section 4.14. Corporate Existence....................................... 56
Section 4.15. Offer to Repurchase Upon Change of Control................ 56
Section 4.16. No Senior Subordinated Debt............................... 57
Section 4.17. Additional Subordinated Subsidiary Guarantees............. 58
Section 4.18. Payments for consents..................................... 58
ARTICLE 5.
SUCCESSORS................................ 58
Section 5.01. Merger, Consolidation, or Sale of Assets.................. 58
Section 5.02. Successor Corporation Substituted......................... 59
ARTICLE 6.
DEFAULTS AND REMEDIES.......................... 59
Section 6.01. Events of Default......................................... 59
Section 6.02. Acceleration.............................................. 61
Section 6.03. Other Remedies............................................ 62
Section 6.04. Waiver of Past Defaults................................... 62
Section 6.05. Control by Majority....................................... 63
Section 6.06. Limitation on Suits....................................... 63
Section 6.07. Rights of Holders of Senior Subordinated Notes to Receive
Payment................................................... 63
Section 6.08. Collection Suit by Senior Subordinated Note Trustee....... 64
Section 6.09. Senior Subordinated Note Trustee May File Proofs of Claim. 64
Section 6.10. Priorities................................................ 64
Section 6.11. Undertaking for Costs..................................... 65
ARTICLE 7.
SENIOR SUBORDINATED NOTE TRUSTEE..................... 65
Section 7.01. Duties of Senior Subordinated Note Trustee................ 65
Section 7.02. Rights of Senior Subordinated Note Trustee................ 66
Section 7.03. Individual Rights of Senior Subordinated Note Trustee..... 67
Section 7.04. Senior Subordinated Note Trustee's Disclaimer............. 67
Section 7.05. Notice of Defaults........................................ 67
Section 7.06. Reports by Senior Subordinated Note Trustee to Holders of
the Senior Subordinated Notes............................. 67
Section 7.07. Compensation and Indemnity................................ 68
Section 7.08. Replacement of Senior Subordinated Note Trustee........... 69
Section 7.09. Successor Senior Subordinated Note Trustee by Merger, etc. 70
Section 7.10. Eligibility; Disqualification............................. 70
Section 7.11. Preferential Collection of Claims Against Company......... 70
ii
<PAGE>
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE................. 70
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.. 70
Section 8.02. Legal Defeasance and Discharge............................ 71
Section 8.03. Covenant Defeasance....................................... 71
Section 8.04. Conditions to Legal or Covenant Defeasance................ 72
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions..................... 73
Section 8.06. Repayment to Company...................................... 73
Section 8.07. Reinstatement............................................. 74
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER..................... 74
Section 9.01. Without Consent of Holders of Senior Subordinated Notes... 74
Section 9.02. With Consent of Holders of Senior Subordinated Notes...... 75
Section 9.03. Compliance with Trust Indenture Act....................... 77
Section 9.04. Revocation and Effect of Consents......................... 77
Section 9.05. Notation on or Exchange of Senior Subordinated Notes...... 77
Section 9.06. Senior Subordinated Note Trustee to Sign Amendments, etc.. 78
ARTICLE 10.
SUBORDINATION.............................. 78
Section 10.01. Agreement to Subordinate.................................. 78
Section 10.02. Certain Definitions....................................... 78
Section 10.03. Liquidation; Dissolution; Bankruptcy...................... 79
Section 10.04. Default on Designated Senior Debt......................... 79
Section 10.05. Acceleration of Senior Subordinated Notes................. 80
Section 10.06. When Distribution Must Be Paid Over....................... 80
Section 10.07. Notice by Company......................................... 81
Section 10.08. Subrogation............................................... 81
Section 10.09. Relative Rights........................................... 81
Section 10.10. Subordination May Not Be Impaired by Company.............. 81
Section 10.11. Distribution or Notice to Representative.................. 82
Section 10.12. Rights of Senior Subordinated Note Trustee and Paying
Agent..................................................... 82
Section 10.13. Authorization to Effect Subordination..................... 82
Section 10.14. Amendments................................................ 82
ARTICLE 11.
SUBORDINATED SUBSIDIARY GUARANTEES.................... 83
Section 11.01. Guarantee................................................. 83
Section 11.02. Subordination of Subordinated Subsidiary Guarantee........ 84
Section 11.03. Limitation on Senior Subordinated Note Guarantor Liability 84
Section 11.04. Execution and Delivery of Subordinated Subsidiary
Guarantee................................................. 84
Section 11.05. Senior Subordinated Note Guarantors May Consolidate, etc.,
on Certain Terms.......................................... 85
Section 11.06. Releases Following Sale of Assets......................... 86
iii
<PAGE>
ARTICLE 12.
MISCELLANEOUS............................... 86
Section 12.01. Trust Indenture Act Controls.............................. 86
Section 12.02. Notices................................................... 87
Section 12.03. Communication by Holders of Senior Subordinated Notes with
Other Holders of Senior Subordinated Notes................ 88
Section 12.04. Certificate and Opinion as to Conditions Precedent........ 88
Section 12.05. Statements Required in Certificate or Opinion............. 88
Section 12.06. Rules by Senior Subordinated Note Trustee and Agents...... 89
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders.......................................... 89
Section 12.08. Governing Law............................................. 89
Section 12.09. No Adverse Interpretation of Other Agreements............. 89
Section 12.10. Successors................................................ 89
Section 12.11. Severability.............................................. 89
Section 12.12. Counterpart Originals..................................... 89
Section 12.13. Table of Contents, Headings, etc.......................... 90
EXHIBITS
Exhibit A1 FORM OF SENIOR SUBORDINATED NOTE
Exhibit A2 FORM OF TEMPORARY REGULATION S SENIOR SUBORDINATED NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF SUBORDINATED SUBSIDIARY GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
SCHEDULES
Schedule I Schedule of Senior Subordinated Note Guarantors
iv
<PAGE>
SENIOR SUBORDINATED NOTE INDENTURE dated as of May 18, 1998 between
P&L Coal Holdings Corporation, a Delaware corporation (the "Company"), and State
Street Bank and Trust Company, as Senior Subordinated Note Trustee (the "Senior
Subordinated Note Trustee").
The Company and the Senior Subordinated Note Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the 9-5/8% Series A Senior Subordinated Notes due 2008 (the "Series A
Senior Subordinated Notes") and the 9-5/8% Series B Senior Subordinated Notes
due 2008 (the "Series B Senior Subordinated Notes" and, together with the Series
A Senior Subordinated Notes, the "Senior Subordinated Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Senior Subordinated Note" means a global note in the
form of Exhibit A1 hereto bearing the Global Senior Subordinated Note Legend and
the Private Placement Legend and deposited with or on behalf of, and registered
in the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Senior
Subordinated Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the acquisition by the Company of: (i) all of the
common stock of Peabody Holding Company, (ii) all of the common stock of Gold
Fields Mining Corp., (iii) all of the membership interests of Citizens Power
LLC, (iv) the 1% interests in CL Hartford, L.L.C., a Delaware limited liability
company, and Citizens Power Sales, a Delaware general partnership, both
subsidiaries of Citizens Power LLC, (v) all of the shares of Darex Capital,
Inc., a company incorporated in the Republic of Panama, and (vi) all of the
ordinary shares of Peabody Australia , LTD., which together with Darex Capital,
Inc. owns Peabody Resources Limited.
"Additional Assets" means (i) any property or assets (other than
Capital Stock, Indebtedness or rights to receive payments over a period greater
than 180 days, other than with respect to coal supply contract restructurings)
that is usable by the Company or a Restricted Subsidiary in a Permitted Business
or (ii) the Capital Stock of a Person that is at the time, or becomes, a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary.
"Additional Senior Subordinated Notes" means up to $150.0 million in
aggregate principal amount of Senior Subordinated Notes (other than the Initial
Senior Subordinated Notes) issued under this Senior Subordinated Note Indenture
in accordance with Sections 2.02 and 4.09 hereof.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or
<PAGE>
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Senior Subordinated Note,
the rules and procedures of the Depositary, Euroclear and Cedel that apply to
such transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than sales of inventory in the ordinary course of
business consistent with past practices (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Section 4.15 and/or Section 5.01 hereof and not by the provisions
of Section 4.10 hereof), and (ii) the issue or sale by the Company or any of its
Restricted Subsidiaries of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $5.0 million or (b) for Net Proceeds in excess of $5.0
million. Notwithstanding the foregoing, the following items shall not be deemed
to be Asset Sales: (i) a transfer of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (ii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (iii) a Restricted Payment that
is permitted by, or an Investment that is not prohibited by Section 4.07 hereof,
(iv) a disposition of Cash Equivalents or obsolete equipment, (v) foreclosures
on assets, (vi) the sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof and (vii) the factoring of accounts
receivable arising in the ordinary course of business pursuant to arrangements
customary in the industry.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Bengalla Joint Venture" means Bengalla Mining Co. Pty Limited,
Bengalla Agricultural Co. Pty Limited and Bengalla Coal Sales Co. Pty Ltd.,
which are the joint venture companies related to the Bengalla mine in New South
Wales, Australia.
"Black Beauty Coal Company" means the Indiana general partnership
among Thoroughbred, L.L.C., Black Beauty Resources, Inc. and Pittsburg and
Midway Coal Mining Co., and any Person collectively owned by those three
partners including, but not limited to, Eagle Coal Company and Falcon Coal
Company.
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
2
<PAGE>
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"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.
"Cash Equivalents" means (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or insured by
the U.S. Government or any agency thereof, (b) certificates of deposit and time
deposits with maturities of one year or less from the date of acquisition and
overnight bank deposits of any lender under the Senior Credit Facilities or of
any commercial bank having capital and surplus in excess of $500.0 million, (c)
repurchase obligations of any lender under the Senior Credit Facilities or of
any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to securities
issued or fully guaranteed or insured by the U.S. Government, (d) commercial
paper of a domestic issuer rated at least A-2 by Standard & Poor's Rating Group
or P-2 by Moody's Investor Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of Standard & Poor's Rating Group
and Moody's Investor Service, Inc. cease publishing ratings of investments, (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by Standard &
Poor's Rating Group or A by Moody's Investor Service, Inc., (f) securities with
maturities of one year or less from the date of acquisition backed by standby
letters of credit issued by any lender under the Senior Credit Facilities or any
commercial bank satisfying the requirements of clause (b) of this definition or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
"Cedel" means Cedel Bank, SA.
"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, (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, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is currently exercisable or is exercisable
only upon the occurrence of a subsequent condition), directly or indirectly, of
more than 50% of the Voting Stock of the Company (measured by voting power
rather than number of shares) or (iv) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors.
3
<PAGE>
"Company" means P&L Coal Holdings Corporation, and any and all
successors thereto.
"Citizens Power" means Citizens Power LLC, a Delaware limited
liability company and its direct and indirect Subsidiaries.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i)
provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (ii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs, deferred financing fees and
original issue discount, noncash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (iii) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale (to the extent such losses were
deducted in computing such Consolidated Net Income), plus (iv) depreciation,
depletion, amortization (including amortization of goodwill and other
intangibles) and other noncash expenses (including, without limitation,
writedowns and impairment of property, plant and equipment and intangibles and
other long-lived assets) (excluding any such noncash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, depletion, amortization and other noncash expenses were deducted
in computing such Consolidated Net Income, minus (v) noncash items increasing
such Consolidated Net Income for such period (other than accruals in accordance
with GAAP), plus (vi) without duplication for amounts otherwise included in
Consolidated Cash Flow, the amount of the Company's and its Restricted
Subsidiaries' proportionate share of the Consolidated Cash Flow of Black Beauty
Coal Company and its Subsidiaries for such period (calculated in proportion to
the Company's and its Restricted Subsidiaries' common equity ownership), in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income or profits
of, and the depreciation, depletion and amortization and other noncash expenses
of, a Restricted Subsidiary that is not a Senior Subordinated Note Guarantor
shall be added to Consolidated Net Income to compute Consolidated Cash Flow only
to the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income of any Person that is not a Subsidiary or that
is accounted for by the equity method of accounting shall be included only to
the extent of the amount of dividends or distributions paid in cash to the
referent Person or a Restricted Subsidiary thereof, (ii) the Net Income of any
Restricted Subsidiary that is not a Senior Subordinated Note Guarantor shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms
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of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded, (iv) the cumulative effect of a change in accounting principles
shall be excluded, and (v) the Net Income (or loss) of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the Company or one
of its Restricted Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of the closing of the Acquisition or (ii) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Corporate Trust Office of the Senior Subordinated Note Trustee" shall
be at the address of the Senior Subordinated Note Trustee specified in Section
12.02 hereof or such other address as to which the Senior Subordinated Note
Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company or any of its
Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the Senior Credit Facilities) 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, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time. Indebtedness under Credit Facilities outstanding on the
date on which Senior Subordinated Notes are first issued and authenticated under
this Senior Subordinated Note Indenture shall be deemed to have been incurred on
such date in reliance on the exception provided by clause (i) of the definition
of Permitted Indebtedness.
"Custodian" means the Senior Subordinated Note Trustee, as custodian
with respect to the Senior Subordinated 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 Senior Subordinated Note" means a certificated Senior
Subordinated Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06 hereof, in the form of Exhibit A1 hereto except
that such Senior Subordinated Note shall not bear the Global Senior Subordinated
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Senior Subordinated Note" attached thereto.
"Depositary" means, with respect to the Senior Subordinated 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 Senior Subordinated
Notes, and any and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provision of this Senior
Subordinated Note Indenture.
"Designated Noncash Consideration" means the fair market value of
noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officer's Certificate, setting
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forth the basis of such valuation, executed by the principal executive officer
and the principal financial officer of the Company, less the amount of cash or
Cash Equivalents received in connection with a sale of such Designated Noncash
Consideration.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Senior Subordinated Notes mature; provided, however, that any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof.
"Domestic Subsidiary" means a Subsidiary that is (i) formed under the
laws of the United States of America or a state or territory 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 United States federal income tax purposes.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of equity
securities (excluding Disqualified Stock) of the Company, other than any private
sales to an Affiliate of the Company.
"Escrow Account" means the escrow account maintained pursuant to the
Escrow Letter.
"Escrow Letter" means that certain escrow letter dated March 2, 1998,
by and among Lazard Brothers & Co., Limited, The Energy Group PLC, Peabody
Investments Inc. and P&L Coal Holdings Corporation.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Exchange Senior Subordinated Notes" means the Senior Subordinated
Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.
"Existing Citizens Power Investment" means the Investments in Citizens
Power by the Company and its Restricted Subsidiaries as of the date of the
closing of the Acquisition.
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"Existing Indebtedness" means up to $292.5 million in aggregate
principal amount of Indebtedness of the Company and its Restricted Subsidiaries
(other than Indebtedness under the Senior Credit Facilities, the Senior Notes,
the Senior Subordinated Notes and related Guarantees) in existence on the date
of the closing of the Acquisition, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the
sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount, noncash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letters of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations, but excluding amortization of debt
issuance costs) and (ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) any
interest expense on the portion of Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon) and (iv) the product of (a) all
dividend payments, whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than dividend payments
on Equity Interests payable solely in Equity Interests of the Company (other
than Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, times (b) a fraction, the numerator of which is one and the denominator
of which is one minus the effective combined federal, state and local tax rate
of such Person for such period, expressed as a decimal, in each case, for the
Company and its Restricted Subsidiaries on a consolidated basis and in
accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person and its
Restricted Subsidiaries for any period, the ratio of the Consolidated Cash Flow
of such Person and its Restricted Subsidiaries for such period to the Fixed
Charges of such Person and its Restricted Subsidiaries for such period. In the
event that the referrent Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees or redeems any Indebtedness (other than revolving credit
borrowings) or issues or redeems preferred stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated but
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at the beginning of
the applicable four-quarter reference period. In addition, for purposes of
making the computation referred to above, (i) acquisitions that have been made
by the Company or any of its Restricted Subsidiaries, including through mergers
or consolidations and including any related financing transactions and including
pro forma cost savings permitted by Article 11 of Regulation S-X, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, and (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, and (iii) the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the referent Person
or any of its Restricted Subsidiaries following the Calculation Date.
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"Foreign Subsidiaries" means Subsidiaries of the Company that are not
Domestic Subsidiaries.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date hereof.
"Global Senior Subordinated Note Legend" means the legend set forth in
Section 2.06(g)(ii), which is required to be placed on all Global Senior
Subordinated Notes issued under this Senior Subordinated Note Indenture.
"Global Senior Subordinated Notes" means, individually and
collectively, each of the Restricted Global Senior Subordinated Notes and the
Unrestricted Global Senior Subordinated Notes, in the form of Exhibits A1 and A2
hereto issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or
2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"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.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange, interest rates or commodity prices,
in each case for the purpose of risk management and not for speculation.
"Holder" means a Person in whose name a Senior Subordinated Note is
registered.
"IAI Global Senior Subordinated Note" means the global Senior
Subordinated Note in the form of Exhibit A1 hereto bearing the Global Senior
Subordinated Note Legend and the Private Placement Legend and deposited with or
on behalf of and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Senior Subordinated Notes sold to Institutional Accredited Investors.
"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 or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations, if
and to the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien
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on any asset of such Person (whether or not such Indebtedness is assumed by such
Person) and, to the extent not otherwise included, the Guarantee by such Person
of any indebtedness of any other Person, but excluding from the definition of
"Indebtedness," any of the foregoing that constitutes (1) an accrued expense,
(2) trade payables and (3) Obligations in respect of reclamation, workers'
compensation, including black lung, pensions and retiree health care, in each
case to the extent not overdue for more than 90 days. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (ii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Senior Subordinated Note through a Participant.
"Initial Senior Subordinated Notes" means $500.0 million in aggregate
principal amount of Senior Subordinated Notes issued under this Senior
Subordinated Note Indenture on the date hereof.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees, other than performance guarantees provided
for the benefit of Citizens Power, of any portion of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal office of
the Trustee is located or at a place of payment are 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.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Senior Subordinated Notes for use
by such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
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"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Marketable Securities" means, with respect to any Asset Sale, any
readily marketable equity securities that are (i) traded on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market; and (ii)
issued by a corporation having a total equity market capitalization of not less
than $250.0 million; provided that the excess of (A) the aggregate amount of
securities of any one such corporation held by the Company and any Restricted
Subsidiary over (B) ten times the average daily trading volume of such
securities during the 20 immediately preceding trading days shall be deemed not
to be Marketable Securities; as determined on the date of the contract relating
to such Asset Sale.
"Net Income" means, with respect to any Person, the net income or loss
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain or loss,
together with any related provision for taxes on such gain or loss, realized in
connection with (a) any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions) or (b) the disposition of any
securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries and (ii) any extraordinary or nonrecurring gain or loss, together
with any related provision for taxes on such extraordinary or nonrecurring gain
or loss.
"Net Proceeds" means the aggregate proceeds (cash or property)
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any noncash consideration received in any Asset Sale) or
the sale or disposition of any Investment, net of the direct costs relating to
such Asset Sale, sale or disposition, (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"Non-Guarantor Subsidiaries" means (i) Citizens Power and its direct
and indirect Subsidiaries, (ii) the Company's future Unrestricted Subsidiaries
and (iii) the Company's current and future Foreign Subsidiaries.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) other than a pledge of the Equity Interests of any
Unrestricted Subsidiaries, (b) is directly or indirectly liable (as a guarantor
or otherwise) other than by virtue of a pledge of the Equity Interests of any
Unrestricted Subsidiaries, or (c) constitutes the lender; and (ii) no default
with respect to which (including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Senior Subordinated Notes being offered hereby) of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
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"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.
"Offering" means the offering of the Senior Subordinated Notes by the
Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officer's Certificate" means a certificate signed on behalf of the
Company by an Officer of the Company who must be a vice-president, the principal
financial officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Sections 12.04 and 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Senior Subordinated Note Trustee, that meets the
requirements of Sections 12.04 and 12.05 hereof. The counsel may be an employee
of or counsel to the Company, any Subsidiary of the Company or the Senior
Subordinated Note Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Permitted Business" means coal production, coal mining, coal
brokering, coal transportation, mine development, power marketing, electricity
generation, power/energy sales and trading, energy transactions/asset
restructurings, risk management products associated with energy, fuel/power
integration and other energy related businesses, ash disposal, environmental
remediation, coal, natural gas, petroleum or other fossil fuel exploration,
production, marketing, transportation and distribution and other related
businesses, and activities of the Company and its Subsidiaries as of the date of
the closing of the Acquisition and any business or activity that is reasonably
similar thereto or a reasonable extension, development or expansion thereof or
ancillary thereto.
"Permitted Investments" means (a) any Investment in the Company or in
a Restricted Subsidiary of the Company; (b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary of the Company in
a Person, if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary of the Company or (ii) such Person, in one transaction or a series of
related transactions, is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company; (d) any acquisition of
assets solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (e) any Investment existing on the date of
the closing of the Acquisition (an "Existing Investment") and any Investment
that replaces, refinances or refunds an Existing Investment, provided that the
new Investment is in an amount that does not exceed the amount replaced,
refinanced or refunded and is made in the same Person as the Investment
replaced, refinanced or refunded, (f) advances to employees not in excess of
$10.0 million outstanding at any one time; (g) Hedging Obligations permitted
under clause (ix) of Section 4.09 hereof; (h) loans and advances to officers,
directors
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and employees for business-related travel expenses, moving expenses and other
similar expenses, in each case incurred in the ordinary course of business; (i)
any Investment in a Permitted Business (whether or not an Investment in an
Unrestricted Subsidiary) having an aggregate fair market value, when taken
together with all other Investments made pursuant to this clause (i), does not
exceed in aggregate amount the sum of (1) 10% of Total Assets at the time of
such Investment (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value) plus (2)
100% of the Net Proceeds from the sale or disposition of any Investment
previously made pursuant to this clause (i) or 100% of the amount of any
dividend, distribution or payment from any such Investment, net of income taxes
paid or payable in respect thereof, in each case up to the amount of the
Investment that was made pursuant to this clause (i) and 50% of the amount of
such Net Proceeds or 50% of such dividends, distributions or payments, in each
case received in excess of the amount of the Investments made pursuant to this
clause (i); (j) guarantees (including Guarantees) of Indebtedness permitted by
Section 4.09 hereof; (k) any Investment acquired by the Company or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (B) as a result
of the transfer of title with respect to any secured Investment in default as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to such secured Investment; (l) any Investment in Black Beauty Coal
Company having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (l), that are at the time outstanding
not to exceed $50.0 million (with any write-down or write-off of any such
Investment deemed to remain outstanding); (m) Investments in Citizens Power
having an aggregate fair market value, taken together with all other Investments
made pursuant to this clause (m), that are at that time outstanding not to
exceed $50.0 million at the time of such Investment (with the fair market value
of each Investment being measured at the time made and without giving effect to
subsequent changes in value); (n) any Investment in the Bengalla Joint Venture
and the Warkworth Associates Joint Venture having an aggregate fair market
value, taken together with all other Investments made pursuant to this clause
(n), that are at the time outstanding, not to exceed $25.0 million (with any
write-down or write-off of any such Investment deemed to remain outstanding);
(o) that portion of any Investment by the Company or a Restricted Subsidiary in
a Permitted Business to the extent that the Company or such Restricted
Subsidiary will receive in a substantially concurrent transaction an amount in
cash equal to the amount of such Investment (or the fair market value of such
Investment), net of any obligation to pay taxes or other amounts in respect of
the receipt of such cash; provided that the receipt of such cash does not carry
any obligation by the Company or such Restricted Subsidiary to repay or return
such cash; and (p) the forgiveness or cancellation of any payable due from
Citizens Power and its direct and indirect Subsidiaries outstanding on the date
of the closing of the Acquisition; provided, however, that with respect to any
Investment, the Company may, in its sole discretion, allocate all or any portion
of any Investment to one or more of the above clauses so that the entire
Investment would be a Permitted Investment.
"Permitted Liens" means (i) Liens securing Indebtedness under Credit
Facilities that were permitted by the terms of this Senior Subordinated Note
Indenture to be incurred; (ii) Liens in favor of the Company; (iii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company; (iv) Liens on property
existing at the time of acquisition thereof by the Company or any Restricted
Subsidiary of the Company, provided that such Liens were in existence prior to
the contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or
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other obligations of a like nature incurred in the ordinary course of business;
(vi) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other kinds of
social security; (vii) Liens existing on the date of the closing of the
Acquisition; (viii) 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; (ix) Liens on assets of
Senior Subordinated Note Guarantors to secure Senior Debt of such Senior
Subordinated Note Guarantors that was permitted by this Senior Subordinated Note
Indenture to be incurred; (x) Liens incurred in the ordinary course of business
of the Company or any Restricted Subsidiary of the Company with respect to
obligations that (a) are not incurred in connection with the borrowing of money
or the obtaining of advances or credit (other than trade credit in the ordinary
course of business) and (b) do not in the aggregate materially detract from the
value of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary; (xi) Liens on assets of
Foreign Subsidiaries to secure Indebtedness that was permitted by this Senior
Subordinated Note Indenture to be incurred; (xii) statutory liens of landlords,
mechanics, suppliers, vendors, warehousemen, carriers or other like Liens
arising in the ordinary course of business; (xiii) judgment Liens not giving
rise to an Event of Default 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; (xiv) easements, rights-of-way, zoning and
similar restrictions and other similar encumbrances or title defects incurred or
imposed, as applicable, in the ordinary course of business and consistent with
industry practices which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the property
subject thereto (as such property is used by the Company or its Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or such
Subsidiaries; provided, however, that any such Liens are not incurred in
connection with any borrowing of money or any commitment to loan any money or to
extend any credit; (xv) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (vi) of the second paragraph of Section 4.09
hereof and other purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary acquired in the ordinary course of
business; provided that such Liens are only secured by such property or assets
so acquired or improved (including, in the case of the acquisition of Capital
Stock of a Person who becomes a Restricted Subsidiary, Liens on the assets of
the Person whose Capital Stock was so acquired); (xvi) Liens securing
Indebtedness under Hedging Obligations; provided that such Liens are only
secured by property or assets that secure the Indebtedness subject to the
Hedging Obligation; (xvii) Liens to secure Indebtedness permitted by clause (xv)
of the second paragraph of Section 4.09 hereof; and (xviii) Liens on the Equity
Interests of Unrestricted Subsidiaries securing Obligations of Unrestricted
Subsidiaries not otherwise prohibited by this Senior Subordinated Note
Indenture..
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest and premium, if any, on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
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refunded is subordinated in right of payment to the Senior Subordinated Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Senior
Subordinated Notes on terms at least as favorable to the Holders of Senior
Subordinated Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Principals" means Lehman Brothers Merchant Banking Partners II L.P.,
any of its respective Affiliates and executive officers of the Company as of the
date of the closing of the Acquisition.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture except where otherwise permitted by the
provisions of this Senior Subordinated Note Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of May 18, 1998, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Senior Subordinated Notes, one or more registration rights agreements between
the Company and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the
Company to the purchasers of Additional Senior Subordinated Notes to register
such Additional Senior Subordinated Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Senior Subordinated Note" means a Regulation S
Temporary Global Senior Subordinated Note or Regulation S Permanent Global
Senior Subordinated Note, as appropriate.
"Regulation S Permanent Global Senior Subordinated Note" means a
permanent global Senior Subordinated Note in the form of Exhibit A1 hereto
bearing the Global Senior Subordinated Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Senior Subordinated Note
upon expiration of the Restricted Period.
"Regulation S Temporary Global Senior Subordinated Note" means a
temporary global Senior Subordinated Note in the form of Exhibit A2 hereto
bearing the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Senior
Subordinated Notes initially sold in reliance on Rule 903 of Regulation S.
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"Related Party" with respect to any Principal means (A) any
controlling stockholder, 80% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) 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 Senior
Subordinated Note Trustee, means any officer within the Corporate Trust
Administration of the Senior Subordinated Note Trustee (or any successor group
of the Senior Subordinated Note Trustee) or any other officer of the Senior
Subordinated Note 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 Definitive Senior Subordinated Note" means a Definitive
Senior Subordinated Note bearing the Private Placement Legend.
"Restricted Global Senior Subordinated Note" means a Global Senior
Subordinated Note bearing the Private Placement Legend.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facilities" means those certain Senior Credit
Facilities, dated as of May 14, 1998 by and among the Company, the Senior Note
Guarantors, Lehman Commercial Paper Inc., as Arranger, Syndication Agent and the
Administrative Agent 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, exhibits or
schedules to any of the foregoing), and in each case as amended, modified,
supplemented, restated, renewed, refunded, replaced, restructured, repaid or
refinanced from time to time (whether with the original agents and lenders or
other agents and lenders or otherwise, and whether provided under the original
credit agreement or other credit agreements or otherwise).
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"Senior Note Indenture" means that certain Senior Note Indenture,
dated as of the date hereof, between the Company and State Street Bank and Trust
Company, as Senior Note Trustee, as amended or supplemented from time to time,
relating to the Senior Notes.
"Senior Notes" means the Company's 8-7/8% Senior Notes due 2008 issued
concurrently pursuant to the Senior Note Indenture.
"Senior Subordinated Note Guarantors" means each of (i) the Company's
Domestic Subsidiaries at the date of the closing of the Acquisition, other than
Citizens Power and the Subsidiaries of Citizens Power at the date of the Senior
Subordinated Note Indenture and (ii) any other subsidiary that executes a
Subordinated Subsidiary Guarantee in accordance with the provisions of this
Senior Subordinated Note Indenture, and their respective successors and assigns.
"Senior Subordinated Note Indenture" means this Senior Subordinated
Note Indenture, as amended or supplemented from time to time.
"Senior Subordinated Note Trustee" means the party named as such above
until a successor replaces it in accordance with the applicable provisions of
this Senior Subordinated Note Indenture and thereafter means the successor
serving hereunder.
"Senior Subordinated Notes" has the meaning assigned to it in the
preamble to this Senior Subordinated Note Indenture.
"Senior Subsidiary Guarantees" mean the guarantees endorsed on the
Senior Notes by the Senior Note Guarantors.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"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 Senior Subordinated Note Indenture.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Subsidiary Guarantees" mean the guarantees endorsed on
the Senior Subordinated Notes by the Senior Subordinated Note Guarantors.
"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 Senior
Subordinated Note 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
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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).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb) as in effect on the date on which this Senior Subordinated Note
Indenture is qualified under the TIA.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
GAAP, as shown on the most recently available consolidated balance sheet of the
Company and its Restricted Subsidiaries.
"Transaction Documents" means the documents related to (i) the
Acquisition (including, without limitation, the purchase agreement, the
participation agreement and the escrow agreement), (ii) the Senior Credit
Facilities and (iii) the offering of the Senior Notes and the Senior
Subordinated Notes.
"Treasury Rate" means the yield to maturity at the time of the
computation of the United States Treasury securities with a constant maturity
(as compiled by and published in the most recent Federal Reserve Statistical
Release H.15(519), which has become publicly available at least two Business
Days prior to the date fixed for redemption (or if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the then remaining average life to May 15, 2003; provided,
however, that if the average life of such Senior Subordinated Note is not equal
to the constant maturity of the United States Treasury security for which weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the average life of such Senior Subordinated Note is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Unrestricted Global Senior Subordinated Note" means a permanent
global Senior Subordinated Note in the form of Exhibit A1 attached hereto that
bears the Global Senior Subordinated Note Legend and that has the "Schedule of
Exchanges of Interests in the Global Senior Subordinated Note" attached thereto,
and that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Senior Subordinated Notes that do not bear
the Private Placement Legend.
"Unrestricted Definitive Senior Subordinated Note" means one or more
Definitive Senior Subordinated Notes that do not bear and are not required to
bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) Citizens Power and any direct or
indirect Subsidiary of Citizens Power on the date hereof and (ii) any Subsidiary
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution; but only to the extent that such Person: (a) has
no Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; (c) is a Person with respect to which
neither the Company nor any of its Restricted Subsidiaries has any obligation
(x) to subscribe for additional Equity Interests in Unrestricted Subsidiaries
(except with respect to Permitted Investments) or (y) to maintain or preserve
such Person's net worth; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any
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Indebtedness of the Company or any of its Restricted Subsidiaries; provided,
however, that the Company and its Restricted Subsidiaries may guarantee the
performance of Unrestricted Subsidiaries in the ordinary course of business
except for guarantees of Obligations in respect of borrowed money. Any such
designation by the Board of Directors shall be evidenced to the Senior
Subordinated Note Trustee by filing with the Senior Subordinated Note Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.07 hereof.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act .
"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.
"Warkworth Associates Joint Venture" means Warkworth Coal Sales
Ltd., Warkworth Pastoral Co. Pty, Limited and Warkworth Mining Limited, which
are the joint venture companies related to the Warkworth mine in New South
Wales, Australia.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
Section 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"................................... 4.11
"Asset Sale".............................................. 4.10
"Asset Sale Offer"........................................ 3.09
"Authentication Order".................................... 2.02
"Bankruptcy Law".......................................... 4.01
"Change of Control Offer"................................. 4.15
"Change of Control Payment"............................... 4.15
"Change of Control Payment Date".......................... 4.15
"Covenant Defeasance"..................................... 8.03
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"Event of Default"........................................ 6.01
"Excess Proceeds"......................................... 4.10
"incur"................................................... 4.09
"Legal Defeasance"........................................ 8.02
"Offer Amount"............................................ 3.09
"Offer Period"............................................ 3.09
"Paying Agent"............................................ 2.03
"Permitted Debt".......................................... 4.09
"Purchase Date"........................................... 3.09
"Registrar"............................................... 2.03
"Restricted Payments"..................................... 4.07
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Senior Subordinated Note Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a
part of this Senior Subordinated Note Indenture.
The following TIA terms used in this Senior Subordinated Note
Indenture have the following meanings:
"Indenture securities" means the Senior Subordinated Notes;
"Indenture security Holder" means a Holder of a Senior
Subordinated Note;
"Indenture to be qualified" means this Senior Subordinated Note
Indenture;
"Indenture Trustee" or "institutional Trustee" means the Senior
Subordinated Note Trustee; and
"obligor" on the Senior Subordinated Notes and the Subordinated
Subsidiary Guarantees means the Company and the Senior Subordinated Note
Guarantors, respectively, and any successor obligor upon the Senior Subordinated
Notes and the Subordinated Subsidiary Guarantees, respectively.
All other terms used in this Senior Subordinated Note 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;
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(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 of successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2.
THE SENIOR SUBORDINATED NOTES
Section 2.01. FORM AND DATING.
(a) General.
The Senior Subordinated Notes and the Senior Subordinated Note
Trustee's certificate of authentication shall be substantially in the form of
Exhibits A1 and A2 hereto. The Senior Subordinated Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Senior Subordinated Note shall be dated the date of its authentication. The
Senior Subordinated Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Senior Subordinated
Notes shall constitute, and are hereby expressly made, a part of this Senior
Subordinated Note Indenture and the Company, the Senior Subordinated Note
Guarantors and the Senior Subordinated Note Trustee, by their execution and
delivery of this Senior Subordinated Note Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent any
provision of any Senior Subordinated Note conflicts with the express provisions
of this Senior Subordinated Note Indenture, the provisions of this Senior
Subordinated Note Indenture shall govern and be controlling.
(b) Global Senior Subordinated Notes.
Senior Subordinated Notes issued in global form shall be
substantially in the form of Exhibits A1 or A2 attached hereto (including the
Global Senior Subordinated Note Legend thereon and the "Schedule of Exchanges of
Interests in the Global Senior Subordinated Note" attached thereto). Senior
Subordinated Notes issued in definitive form shall be substantially in the form
of Exhibit A1 attached hereto (but without the Global Senior Subordinated Note
Legend thereon and without the "Schedule of Exchanges of Interests in the Global
Senior Subordinated Note" attached thereto). Each Global Senior Subordinated
Note shall represent such of the outstanding Senior Subordinated Notes as shall
be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Senior Subordinated Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Senior Subordinated Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Senior Subordinated Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Senior
Subordinated Notes represented thereby shall be made by the Senior Subordinated
Note Trustee or the Custodian, at the direction of the Senior Subordinated Note
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
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(c) Temporary Global Senior Subordinated Notes.
Senior Subordinated Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Senior Subordinated Note, which shall be deposited on behalf of the
purchasers of the Senior Subordinated Notes represented thereby with the Senior
Subordinated Note Trustee, at its New York office, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear
or Cedel Bank, duly executed by the Company and authenticated by the Senior
Subordinated Note Trustee as hereinafter provided. The Restricted Period shall
be terminated upon the receipt by the Senior Subordinated Note Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedel Bank certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Senior Subordinated Note (except to
the extent of any beneficial owners thereof who acquired an interest therein
during the Restricted Period pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Global Senior Subordinated Note or an IAI Global Senior
Subordinated Note bearing a Private Placement Legend, all as contemplated by
Section 2.06(a)(ii) hereof), and (ii) an Officer's Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Senior Subordinated Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Senior Subordinated Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Senior Subordinated Notes, the Senior Subordinated
Note Trustee shall cancel the Regulation S Temporary Global Senior Subordinated
Note. The aggregate principal amount of the Regulation S Temporary Global Senior
Subordinated Note and the Regulation S Permanent Global Senior Subordinated
Notes may from time to time be increased or decreased by adjustments made on the
records of the Senior Subordinated Note Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall
be applicable to transfers of beneficial interests in the Regulation S Temporary
Global Senior Subordinated Note and the Regulation S Permanent Global Senior
Subordinated Notes that are held by Participants through Euroclear or Cedel
Bank.
Section 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Senior Subordinated Notes for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Senior Subordinated Note no
longer holds that office at the time a Senior Subordinated Note is
authenticated, the Senior Subordinated Note shall nevertheless be valid.
A Senior Subordinated Note shall not be valid until authenticated
by the manual signature of the Senior Subordinated Note Trustee. The signature
shall be conclusive evidence that the Senior Subordinated Note has been
authenticated under this Senior Subordinated Note Indenture.
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The Senior Subordinated Note Trustee shall, upon a written order
of the Company signed by one Officer (an "Authentication Order"), authenticate
Senior Subordinated Notes for original issue up to the aggregate principal
amount stated in paragraph 4 of the Senior Subordinated Notes. The aggregate
principal amount of Senior Subordinated Notes outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
The Senior Subordinated Note Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Senior Subordinated Notes. An
authenticating agent may authenticate Senior Subordinated Notes whenever the
Senior Subordinated Note Trustee may do so. Each reference in this Senior
Subordinated Note Indenture to authentication by the Senior Subordinated Note
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.
Section 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Senior
Subordinated Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Senior Subordinated Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Senior Subordinated Notes and of their transfer and exchange. The Company
may 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 Senior
Subordinated Note Trustee in writing of the name and address of any Agent not a
party to this Senior Subordinated Note Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Senior
Subordinated Note Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Senior Subordinated
Notes.
The Company initially appoints the Senior Subordinated Note
Trustee to act as the Registrar and Paying Agent and to act as Custodian with
respect to the Global Senior Subordinated Notes.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Senior
Subordinated Note Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Senior Subordinated Note Trustee all
money held by the Paying Agent for the payment of principal, premium or
Liquidated Damages, if any, or interest on the Senior Subordinated Notes, and
will notify the Senior Subordinated Note Trustee of any default by the Company
in making any such payment. While any such default continues, the Senior
Subordinated Note Trustee may require a Paying Agent to pay all money held by it
to the Senior Subordinated Note Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Senior Subordinated Note
Trustee. Upon payment over to the Senior Subordinated Note 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 Senior Subordinated Note
Trustee shall serve as Paying Agent for the Senior Subordinated Notes.
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Section 2.05. HOLDER LISTS.
The Senior Subordinated Note 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 (S)
312(a). If the Senior Subordinated Note Trustee is not the Registrar, the
Company shall furnish to the Senior Subordinated Note Trustee at least seven
Business Days before each interest payment date and at such other times as the
Senior Subordinated Note Trustee may request in writing, a list in such form and
as of such date as the Senior Subordinated Note Trustee may reasonably require
of the names and addresses of the Holders of Senior Subordinated Notes and the
Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Senior Subordinated Notes.
A Global Senior Subordinated 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 Senior Subordinated Notes will be
exchanged by the Company for Definitive Senior Subordinated Notes if (i) the
Company delivers to the Senior Subordinated Note Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary or (ii) the Company in
its sole discretion determines that the Global Senior Subordinated Notes (in
whole but not in part) should be exchanged for Definitive Senior Subordinated
Notes and delivers a written notice to such effect to the Senior Subordinated
Note Trustee; provided that in no event shall the Regulation S Temporary Global
Senior Subordinated Note be exchanged by the Company for Definitive Senior
Subordinated Notes prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Senior Subordinated Notes
shall be issued in such names as the Depositary shall instruct the Senior
Subordinated Note Trustee. Global Senior Subordinated Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Senior Subordinated Note authenticated and delivered in
exchange for, or in lieu of, a Global Senior Subordinated Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Senior
Subordinated Note. A Global Senior Subordinated Note may not be exchanged for
another Senior Subordinated Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Senior Subordinated Note may be
transferred and exchanged as provided in Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Senior Subordinated Notes.
The transfer and exchange of beneficial interests in the Global
Senior Subordinated Notes shall be effected through the Depositary, in
accordance with the provisions of this Senior Subordinated Note Indenture and
the Applicable Procedures. Beneficial interests in the Restricted Global Senior
Subordinated Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers
of beneficial interests in the Global Senior Subordinated
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Notes also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Senior
Subordinated Note. Beneficial interests in any Restricted Global Senior
Subordinated Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted Global Senior
Subordinated Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, transfers of beneficial interests in
the Temporary Regulation S Global Senior Subordinated Note may not be made
to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Beneficial interests in any Unrestricted Global
Senior Subordinated Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Senior Subordinated Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Senior Subordinated Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must deliver
to the Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Senior Subordinated Note
in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Senior Subordinated Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Senior Subordinated Note shall be registered to
effect the transfer or exchange referred to in (1) above; provided that in
no event shall Definitive Senior Subordinated Notes be issued upon the
transfer or exchange of beneficial interests in the Regulation S Temporary
Global Senior Subordinated Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon consummation
of an Exchange Offer by the Company in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Senior Subordinated Notes.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Senior Subordinated Notes contained in this
Senior Subordinated Note Indenture and the Senior Subordinated Notes or
otherwise applicable under the Securities Act, the Senior Subordinated Note
Trustee shall adjust the principal amount of the relevant Global Senior
Subordinated Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Senior Subordinated Note. A beneficial interest in any Restricted
Global Senior Subordinated Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted
Global Senior Subordinated Note if the transfer complies with the
requirements of Section 2.06(b)(ii) above and the Registrar receives the
following:
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(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Senior Subordinated Note, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Senior
Subordinated Note or the Regulation S Global Senior Subordinated Note,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Senior Subordinated Note, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Senior Subordinated Note for Beneficial Interests in the
Unrestricted Global Senior Subordinated Note. A beneficial interest in any
Restricted Global Senior Subordinated Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Senior
Subordinated Note or transferred to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Senior
Subordinated Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal or via the
Depositary's book-entry system that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the Exchange Senior
Subordinated Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to exchange
such beneficial interest for a beneficial interest in an
Unrestricted Global Senior Subordinated Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
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Unrestricted Global Senior Subordinated Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities
Act and state "blue sky" laws and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Senior Subordinated Note has not yet
been issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Senior Subordinated Note
Trustee shall authenticate one or more Unrestricted Global Senior Subordinated
Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Senior Subordinated
Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Senior
Subordinated Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Senior
Subordinated Notes.
(i) Beneficial Interests in Restricted Global Senior Subordinated
Notes to Restricted Definitive Senior Subordinated Notes. If any holder of
a beneficial interest in a Restricted Global Senior Subordinated Note
proposes to exchange such beneficial interest for a Restricted Definitive
Senior Subordinated Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Senior Subordinated Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to exchange such
beneficial interest for a Restricted Definitive Senior Subordinated
Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
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(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Senior Subordinated Note Trustee shall cause the aggregate principal
amount of the applicable Global Senior Subordinated Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Senior Subordinated Note Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Senior
Subordinated Note in the appropriate principal amount. Any Definitive
Senior Subordinated Note issued in exchange for a beneficial interest in a
Restricted Global Senior Subordinated Note 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 Senior Subordinated Note
Trustee shall deliver such Definitive Senior Subordinated Notes to the
Persons in whose names such Senior Subordinated Notes are so registered.
Any Definitive Senior Subordinated Note issued in exchange for a beneficial
interest in a Restricted Global Senior Subordinated Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Senior
Subordinated Note may not be exchanged for a Definitive Senior Subordinated
Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Senior Subordinated Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, except
in the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(ii) Beneficial Interests in Restricted Global Senior
Subordinated Notes to Unrestricted Definitive Senior Subordinated Notes. A
holder of a beneficial interest in a Restricted Global Senior Subordinated
Note may exchange such beneficial interest for an Unrestricted Definitive
Senior Subordinated Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Senior Subordinated Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a
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Person participating in the distribution of the Exchange Senior
Subordinated Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to exchange
such beneficial interest for a Definitive Senior Subordinated
Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Senior Subordinated Note that
does not bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and state "blue sky" laws and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Senior
Subordinated Notes to Unrestricted Definitive Senior Subordinated Notes.
If any holder of a beneficial interest in an Unrestricted Global Senior
Subordinated Note proposes to exchange such beneficial interest for a
Definitive Senior Subordinated Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive Senior
Subordinated Note, then, upon satisfaction of the conditions set forth in
Section 2.06(b)(ii) hereof, the Senior Subordinated Note Trustee shall
cause the aggregate principal amount of the applicable Global Senior
Subordinated Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Senior Subordinated Note
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Senior Subordinated Note in the appropriate
principal amount. Any Definitive Senior Subordinated Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
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 Senior Subordinated Note
Trustee shall deliver such Definitive Senior Subordinated Notes to the
Persons
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in whose names such Senior Subordinated Notes are so registered. Any
Definitive Senior Subordinated Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Senior Subordinated Notes for
Beneficial Interests.
(i) Restricted Definitive Senior Subordinated Notes to Beneficial
Interests in Restricted Global Senior Subordinated Notes. If any Holder of
a Restricted Definitive Senior Subordinated Note proposes to exchange such
Senior Subordinated Note for a beneficial interest in a Restricted Global
Senior Subordinated Note or to transfer such Restricted Definitive Senior
Subordinated Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Senior Subordinated Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Senior
Subordinated Note proposes to exchange such Senior Subordinated Note
for a beneficial interest in a Restricted Global Senior Subordinated
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Senior Subordinated Note
is being transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Senior Subordinated Note
is being transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Senior Subordinated Note
is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Senior Subordinated Note
is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through
(D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Senior Subordinated Note
is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Senior Subordinated Note
is being transferred pursuant to an effective registration statement
under the Securities Act, a
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<PAGE>
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Senior Subordinated Note Trustee shall cancel the Restricted Definitive
Senior Subordinated Note, increase or cause to be increased the aggregate
principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Senior Subordinated Note, in the case of clause (B)
above, the 144A Global Senior Subordinated Note, in the case of clause (c)
above, the Regulation S Global Senior Subordinated Note, and in all other
cases, the IAI Global Senior Subordinated Note.
(ii) Restricted Definitive Senior Subordinated Notes to
Beneficial Interests in Unrestricted Global Senior Subordinated Notes. A
Holder of a Restricted Definitive Senior Subordinated Note may exchange
such Senior Subordinated Note for a beneficial interest in an Unrestricted
Global Senior Subordinated Note or transfer such Restricted Definitive
Senior Subordinated Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Senior Subordinated Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Senior Subordinated Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Senior
Subordinated Notes proposes to exchange such Senior Subordinated
Notes for a beneficial interest in the Unrestricted Global Senior
Subordinated Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive Senior
Subordinated Notes proposes to transfer such Senior Subordinated
Notes to a Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Senior
Subordinated Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and state "blue sky" laws and
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that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Senior Subordinated Note Trustee shall cancel the
Definitive Senior Subordinated Notes and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Senior
Subordinated Note.
(iii) Unrestricted Definitive Senior Subordinated Notes to
Beneficial Interests in Unrestricted Global Senior Subordinated Notes. A
Holder of an Unrestricted Definitive Senior Subordinated Note may exchange
such Senior Subordinated Note for a beneficial interest in an Unrestricted
Global Senior Subordinated Note or transfer such Definitive Senior
Subordinated Notes to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Subordinated Note at
any time. Upon receipt of a request for such an exchange or transfer, the
Senior Subordinated Note Trustee shall cancel the applicable Unrestricted
Definitive Senior Subordinated Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Senior
Subordinated Notes.
If any such exchange or transfer from a Definitive Senior
Subordinated Note to a beneficial interest is effected pursuant to
subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Global Senior Subordinated Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Senior Subordinated Note Trustee
shall authenticate one or more Unrestricted Global Senior Subordinated
Notes in an aggregate principal amount equal to the principal amount of
Definitive Senior Subordinated Notes so transferred.
(e) Transfer and Exchange of Definitive Senior Subordinated Notes for
Definitive Senior Subordinated Notes.
Upon request by a Holder of Definitive Senior Subordinated Notes and
such Holder's compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Senior
Subordinated Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Senior Subordinated Notes duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such Holder
or by his attorney, duly authorized in writing. In addition, the requesting
Holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Senior Subordinated Notes to Restricted
Definitive Senior Subordinated Notes. Any Restricted Definitive Senior
Subordinated Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive
Senior Subordinated Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (1)
thereof;
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(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Senior Subordinated Notes to
Unrestricted Definitive Senior Subordinated Notes. Any Restricted
Definitive Senior Subordinated Note may be exchanged by the Holder thereof
for an Unrestricted Definitive Senior Subordinated Note or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Senior Subordinated Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Senior Subordinated Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Senior
Subordinated Notes proposes to exchange such Senior Subordinated
Notes for an Unrestricted Definitive Senior Subordinated Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Senior
Subordinated Notes proposes to transfer such Senior Subordinated
Notes to a Person who shall take delivery thereof in the form of
an Unrestricted Definitive Senior Subordinated Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and state "blue
sky" laws and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
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(iii) Unrestricted Definitive Senior Subordinated Notes to
Unrestricted Definitive Senior Subordinated Notes. A Holder of
Unrestricted Definitive Senior Subordinated Notes may transfer such Senior
Subordinated Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Senior Subordinated Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Senior Subordinated Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer.
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Senior Subordinated
Note Trustee shall authenticate (i) one or more Unrestricted Global Senior
Subordinated Notes in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Restricted Global Senior Subordinated
Notes tendered for acceptance by Persons that certify in the applicable Letters
of Transmittal that (x) they are not broker-dealers, (y) they are not
participating in a distribution of the Exchange Senior Subordinated Notes and
(z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange in the Exchange Offer and (ii) Definitive Senior
Subordinated Notes in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Senior Subordinated Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Senior
Subordinated Notes, the Senior Subordinated Note Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Senior
Subordinated Notes to be reduced accordingly, and the Company shall execute and
the Senior Subordinated Note Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Senior Subordinated Notes so
accepted Definitive Senior Subordinated Notes in the appropriate principal
amount.
(g) Legends
The following legends shall appear on the face of all Global Senior
Subordinated Notes and Definitive Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture unless specifically stated otherwise in the
applicable provisions of this Senior Subordinated Note Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Senior Subordinated Note and each Definitive Senior
Subordinated Note (and all Senior Subordinated Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
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HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904
UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Senior
Subordinated Note or Definitive Senior Subordinated Note issued
pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all
Senior Subordinated Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Senior Subordinated Note Legend. Each Global Senior
Subordinated Note shall bear a legend in substantially the following form:
"THIS GLOBAL SENIOR SUBORDINATED NOTE IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE SENIOR SUBORDINATED NOTE INDENTURE
GOVERNING THIS SENIOR SUBORDINATED 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 SENIOR
SUBORDINATED NOTE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE SENIOR SUBORDINATED NOTE
INDENTURE, (II) THIS GLOBAL SENIOR SUBORDINATED NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE SENIOR
SUBORDINATED NOTE INDENTURE, (III) THIS GLOBAL SENIOR SUBORDINATED
NOTE MAY BE DELIVERED TO THE SENIOR SUBORDINATED NOTE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE SENIOR SUBORDINATED NOTE
INDENTURE AND (IV) THIS GLOBAL SENIOR SUBORDINATED NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY."
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(iii) Regulation S Temporary Global Senior Subordinated Note
Legend. The Regulation S Temporary Global Senior Subordinated Note shall
bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL SENIOR SUBORDINATED NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED SENIOR SUBORDINATED NOTES, ARE
AS SPECIFIED IN THE SENIOR SUBORDINATED NOTE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL SENIOR SUBORDINATED NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Senior Subordinated
Notes.
At such time as all beneficial interests in a particular Global Senior
Subordinated Note have been exchanged for Definitive Senior Subordinated Notes
or a particular Global Senior Subordinated Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Senior Subordinated Note
shall be returned to or retained and canceled by the Senior Subordinated Note
Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Senior Subordinated Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Senior Subordinated Note or for
Definitive Senior Subordinated Notes, the principal amount of Senior
Subordinated Notes represented by such Global Senior Subordinated Note shall be
reduced accordingly and an endorsement shall be made on such Global Senior
Subordinated Note by the Senior Subordinated Note Trustee or by the Depositary
at the direction of the Senior Subordinated Note 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 Senior Subordinated Note, such other Global Senior
Subordinated Note shall be increased accordingly and an endorsement shall be
made on such Global Senior Subordinated Note by the Senior Subordinated Note
Trustee or by the Depositary at the direction of the Senior Subordinated Note
Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Senior Subordinated Note Trustee shall
authenticate Global Senior Subordinated Notes and Definitive Senior
Subordinated Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Senior Subordinated Note or to a Holder of a
Definitive Senior Subordinated Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06,
3.09, 4.10, 4.15 and 9.05 hereof).
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(iii) The Registrar shall not be required to register the
transfer of or exchange any Senior Subordinated Note selected for
redemption in whole or in part, except the unredeemed portion of any Senior
Subordinated Note being redeemed in part.
(iv) All Global Senior Subordinated Notes and Definitive Senior
Subordinated Notes issued upon any registration of transfer or exchange of
Global Senior Subordinated Notes or Definitive Senior Subordinated Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Senior Subordinated Note
Indenture, as the Global Senior Subordinated Notes or Definitive Senior
Subordinated Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Senior Subordinated Notes
during a period beginning at the opening of business 15 days before the day
of any selection of Senior Subordinated 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 Senior Subordinated Note
so selected for redemption in whole or in part, except the unredeemed
portion of any Senior Subordinated Note being redeemed in part or (c) to
register the transfer of or to exchange a Senior Subordinated Note between
a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Senior Subordinated Note, the Senior Subordinated Note
Trustee, any Agent and the Company may deem and treat the Person in whose
name any Senior Subordinated Note is registered as the absolute owner of
such Senior Subordinated Note for the purpose of receiving payment of
principal of and interest on such Senior Subordinated Notes and for all
other purposes, and none of the Senior Subordinated Note Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Senior Subordinated Note Trustee shall authenticate
Global Senior Subordinated Notes and Definitive Senior Subordinated Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07. Replacement Senior Subordinated Notes
If any mutilated Senior Subordinated Note is surrendered to the Senior
Subordinated Note Trustee or the Company and the Senior Subordinated Note
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Senior Subordinated Note, the Company shall issue and the Senior
Subordinated Note Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Senior Subordinated Note if the Senior Subordinated
Note Trustee's requirements are met. If required by the Senior Subordinated
Note Trustee or the Company, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Senior Subordinated Note Trustee and
the Company to protect the Company, the Senior Subordinated Note Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Senior Subordinated Note is replaced. The Company may charge for its expenses
in replacing a Senior Subordinated Note.
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Every replacement Senior Subordinated Note is an additional obligation
of the Company and shall be entitled to all of the benefits of this Senior
Subordinated Note Indenture equally and proportionately with all other Senior
Subordinated Notes duly issued hereunder.
Section 2.08. Outstanding Senior Subordinated Notes.
The Senior Subordinated Notes outstanding at any time are all the
Senior Subordinated Notes authenticated by the Senior Subordinated Note Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Senior Subordinated Note effected by the
Senior Subordinated Note Trustee in accordance with the provisions hereof, and
those described in this Section as not outstanding. Except as set forth in
Section 2.09 hereof, a Senior Subordinated Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Senior Subordinated
Note.
If a Senior Subordinated Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Senior Subordinated Note Trustee
receives proof satisfactory to it that the replaced Senior Subordinated Note is
held by a bona fide purchaser.
If the principal amount of any Senior Subordinated Note is considered
paid under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
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 Senior Subordinated Notes payable on that date, then on and
after that date such Senior Subordinated Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
Section 2.09. Treasury Senior Subordinated Notes.
In determining whether the Holders of the required principal amount of
Senior Subordinated Notes have concurred in any direction, waiver or consent,
Senior Subordinated 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 Senior Subordinated Note
Trustee shall be protected in relying on any such direction, waiver or consent,
only Senior Subordinated Notes that the Senior Subordinated Note Trustee knows
are so owned shall be so disregarded.
Section 2.10. Temporary Senior Subordinated Notes
Until certificates representing Senior Subordinated Notes are ready
for delivery, the Company may prepare and the Senior Subordinated Note Trustee,
upon receipt of an Authentication Order, shall authenticate temporary Senior
Subordinated Notes. Temporary Senior Subordinated Notes shall be substantially
in the form of certificated Senior Subordinated Notes but may have variations
that the Company considers appropriate for temporary Senior Subordinated Notes
and as shall be reasonably acceptable to the Senior Subordinated Note Trustee.
Without unreasonable delay, the Company shall prepare and the Senior
Subordinated Note Trustee shall authenticate definitive Senior Subordinated
Notes in exchange for temporary Senior Subordinated Notes.
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Holders of temporary Senior Subordinated Notes shall be entitled to
all of the benefits of this Senior Subordinated Note Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Senior Subordinated Notes to the
Senior Subordinated Note Trustee for cancellation. The Registrar and Paying
Agent shall forward to the Senior Subordinated Note Trustee any Senior
Subordinated Notes surrendered to them for registration of transfer, exchange or
payment. The Senior Subordinated Note Trustee and no one else shall cancel all
Senior Subordinated Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy canceled Senior
Subordinated Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Senior Subordinated Notes
shall be delivered to the Company. The Company may not issue new Senior
Subordinated Notes to replace Senior Subordinated Notes that it has paid or that
have been delivered to the Senior Subordinated Note Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Senior
Subordinated Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Senior Subordinated Notes and in Section 4.01 hereof. The
Company shall notify the Senior Subordinated Note Trustee in writing of the
amount of defaulted interest proposed to be paid on each Senior Subordinated
Note and the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment date
for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Senior
Subordinated Note Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
Section 2.13. CUSIP Numbers.
The Company in issuing the Senior Subordinated Notes may use "CUSIP"
numbers (if then generally in use), and, if so, the Senior Subordinated Note
Trustee shall use CUSIP numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Senior
Subordinated Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Senior Subordinated Notes, and any such redemption shall not be affected by any
defect in or the omission of such numbers. The Company will promptly notify the
Senior Subordinated Note Trustee of any change in the CUSIP numbers.
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Senior Subordinated Note Trustee.
If the Company elects or is required to redeem Senior Subordinated
Notes pursuant to the redemption provisions of Sections 3.07 or 3.10 hereof,
respectively, it shall furnish to the Senior Subordinated Note Trustee, at least
30 days but not more than 60 days before a redemption date, an Officer's
Certificate setting forth (i) the clause of this Senior Subordinated Note
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Senior Subordinated Notes to be redeemed,
(iv) the redemption price and (v) the CUSIP numbers of the Senior Subordinated
Notes to be redeemed.
Section 3.02. Selection of Senior Subordinated Notes to Be Redeemed
If less than all of the Senior Subordinated Notes are to be redeemed
or purchased in an offer to purchase at any time, the Senior Subordinated Note
Trustee shall select the Senior Subordinated Notes to be redeemed or purchased
among the Holders of the Senior Subordinated Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Senior Subordinated Notes are listed or, if the Senior Subordinated Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Senior Subordinated Note Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Senior Subordinated Notes
to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the redemption date by the Senior
Subordinated Note Trustee from the outstanding Senior Subordinated Notes not
previously called for redemption.
The Senior Subordinated Note Trustee shall promptly notify the Company
in writing of the Senior Subordinated Notes selected for redemption and, in the
case of any Senior Subordinated Note selected for partial redemption, the
principal amount thereof to be redeemed. Senior Subordinated Notes and portions
of Senior Subordinated Notes selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Senior Subordinated Notes of a
Holder are to be redeemed, the entire outstanding amount of Senior Subordinated
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 Senior
Subordinated Note Indenture that apply to Senior Subordinated Notes called for
redemption also apply to portions of Senior Subordinated Notes called for
redemption.
Section 3.03. Notice of Redemption
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Senior Subordinated Notes are to be redeemed at its registered address.
The notice shall identify the Senior Subordinated Notes to be
redeemed, including the CUSIP numbers, and shall state:
(a) the redemption date;
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(b) the redemption price;
(c) if any Senior Subordinated Note is being redeemed in part,
the portion of the principal amount of such Senior Subordinated Note to be
redeemed and that, after the redemption date upon surrender of such Senior
Subordinated Note, a new Senior Subordinated Note or Senior Subordinated
Notes in principal amount equal to the unredeemed portion shall be issued
upon cancellation of the original Senior Subordinated Note;
(d) the name and address of the Paying Agent;
(e) that Senior Subordinated Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Senior Subordinated Notes called for redemption ceases
to accrue on and after the redemption date;
(g) the paragraph of the Senior Subordinated Notes and/or
Section of this Senior Subordinated Note Indenture pursuant to which the
Senior Subordinated 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 Senior Subordinated Notes.
At the Company's request, the Senior Subordinated Note Trustee shall
give the notice of redemption in the Company's name and at its expense;
provided, however, that the Company shall have delivered to the Senior
Subordinated Note Trustee, at least 45 days prior to the redemption date, an
Officer's Certificate requesting that the Senior Subordinated Note Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Senior Subordinated 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 Senior Subordinated Note Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Senior
Subordinated Notes to be redeemed on that date. The Senior Subordinated Note
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Senior Subordinated Note 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 Senior Subordinated 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 Senior Subordinated Notes or the portions of
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Senior Subordinated Notes called for redemption. If a Senior Subordinated 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 Senior Subordinated Note was registered at the close
of business on such record date. If any Senior Subordinated 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 Senior Subordinated Notes
and in Section 4.01 hereof.
Section 3.06. Senior Subordinated Notes Redeemed in Part.
Upon surrender of a Senior Subordinated Note that is redeemed in part,
the Company shall issue and, upon the Company's written request, the Senior
Subordinated Note Trustee shall authenticate for the Holder at the expense of
the Company a new Senior Subordinated Note equal in principal amount to the
unredeemed portion of the Senior Subordinated Note surrendered.
Section 3.07. Optional Redemption.
(a) The Senior Subordinated Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice.
(b) Prior to May 15, 2003, the Senior Subordinated Notes will be
redeemable at a redemption price equal to 100% of the principal amount thereof
plus the applicable Senior Subordinated Notes Make Whole Premium, plus, to the
extent not included in the Senior Subordinated Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Subordinated Notes Make Whole Premium"
means, with respect to a Senior Subordinated Note, an amount equal to the
greater of (a) 104.813% of the outstanding principal amount of such Senior
Subordinated Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior
Subordinated Note as if such Senior Subordinated Note were redeemed on May 15,
2003, computed using a discount rate equal to the Treasury Rate plus basis 50
points, over (2) the outstanding principal amount of such Senior Subordinated
Note.
(c) On or after May 15, 2003, the Senior Subordinated Notes are
redeemable at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2003............................................ 104.813%
2004............................................ 103.208%
2005............................................ 101.604%
2006 and thereafter............................. 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of this
Section 3.07, during the first 36 months after the date of the closing of the
Acquisition, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture at a redemption price of 109.625% of the
principal
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amount thereof, plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that at least 65% of the aggregate principal amount of
Senior Subordinated Notes issued remain outstanding immediately after the
occurrence of such redemption (excluding Senior Subordinated Notes held by the
Company and its Subsidiaries); and provided, further, that such redemption shall
occur within 120 days of the date of the closing of such Equity Offering.
(e) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
Except as set forth in Section 3.10 hereof, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Senior Subordinated Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Senior Subordinated
Notes (an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Senior Subordinated
Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Senior
Subordinated Notes tendered in response to the Asset Sale Offer. Payment for
any Senior Subordinated Notes so purchased shall be made in the same manner as
interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Senior Subordinated Note is registered at
the close of business on such record date, and no additional interest shall be
payable to Holders who tender Senior Subordinated Notes pursuant to the Asset
Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Senior Subordinated Note Trustee and each
of the Holders. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Senior Subordinated Notes pursuant to
the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The
notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Senior Subordinated Note not tendered or accepted
for payment shall continue to accrete or accrue interest;
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(d) that, unless the Company defaults in making such payment,
any Senior Subordinated Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrete or accrue interest after the Purchase
Date;
(e) that Holders electing to have a Senior Subordinated Note
purchased pursuant to an Asset Sale Offer may only elect to have all of
such Senior Subordinated Note purchased and may not elect to have only a
portion of such Senior Subordinated Note purchased;
(f) that Holders electing to have a Senior Subordinated Note
purchased pursuant to any Asset Sale Offer shall be required to surrender
the Senior Subordinated Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Senior Subordinated Note completed,
or transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Senior Subordinated Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Senior Subordinated Note purchased;
(h) that, if the aggregate principal amount of Senior
Subordinated Notes surrendered by Holders exceeds the Offer Amount, the
Company shall select the Senior Subordinated Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Senior Subordinated Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(i) that Holders whose Senior Subordinated Notes were purchased
only in part shall be issued new Senior Subordinated Notes equal in
principal amount to the unpurchased portion of the Senior Subordinated
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Senior Subordinated Notes or portions thereof tendered pursuant
to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Senior Subordinated Notes tendered, and shall deliver to the Senior Subordinated
Note Trustee an Officer's Certificate stating that such Senior Subordinated
Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Senior Subordinated Notes tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly
issue a new Senior Subordinated Note, and the Senior Subordinated Note Trustee,
upon written request from the Company shall authenticate and mail or deliver
such new Senior Subordinated Note to such Holder, in a principal amount equal to
any unpurchased portion of the Senior Subordinated Note surrendered. Any Senior
Subordinated Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Asset Sale Offer on the Purchase Date.
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Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.10. Special Mandatory Redemption.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Subordinated Notes
at a redemption price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of redemption.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Senior Subordinated Notes.
The Company or a Senior Subordinated Note Guarantor shall pay or cause
to be paid the principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Senior Subordinated Notes on the dates and in the manner
provided in the Senior Subordinated Notes. Principal, premium, if any, and
interest and Liquidated Damages, 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 and Liquidated Damages, if any,
then due. The Company shall pay all Liquidated Damages, if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
The Company or a Senior Subordinated Note 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
Senior Subordinated 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 and Liquidated Damages (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Senior Subordinated
Note Trustee or an affiliate of the Senior Subordinated Note Trustee, Registrar
or co-registrar) where Senior Subordinated 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 Senior Subordinated Notes and this Senior
Subordinated Note Indenture may be served. The Company shall give prompt
written notice to the Senior Subordinated Note 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 Senior Subordinated Note Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Senior Subordinated Note Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Subordinated 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
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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 Senior Subordinated Note
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 Corporate Trust Office of the Senior
Subordinated Note Trustee as one such office or agency of the Company in
accordance with Section 2.03.
Section 4.03. Reports.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Senior Subordinated Notes are outstanding, the Company shall
furnish to the Holders of Senior Subordinated Notes (i) all quarterly and annual
financial information that would be required to be contained in a filing with
the SEC on Forms 10-Q and 10-K if the Company were required to file such forms,
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Company and its Restricted Subsidiaries separate from the
financial condition and results of operations of the Unrestricted Subsidiaries
of the Company) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants and (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports, in each case, within the time
periods specified in the SEC's rules and regulations. In addition, following
consummation of the Exchange Offer, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such information
and reports with the SEC for public availability within the time periods
specified in the SEC's rules and regulations (unless the SEC will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. The Company shall at all times comply with
TIA (S) 314(a).
(b) For so long as any Senior Subordinated Notes remain outstanding,
the Company and the Senior Subordinated Note Guarantors shall furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company and each Senior Subordinated Note Guarantor (to the
extent that such Senior Subordinated Note Guarantor is so required under the
TIA) shall deliver to the Senior Subordinated Note Trustee, within 90 days after
the end of each fiscal year, an Officer's Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Senior Subordinated Note 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 Senior Subordinated Note Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Senior Subordinated Note 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
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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 Senior Subordinated Notes is prohibited or if such
event has occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Senior Subordinated Notes
are outstanding, deliver to the Senior Subordinated Note 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, an Officer's Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, 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 Senior Subordinated Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each of the Senior Subordinated Note 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 Senior Subordinated Note Indenture; and the Company and each of the Senior
Subordinated Note 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 Senior Subordinated Note Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries'
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Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or
indirect parent of the Company; (iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Senior Subordinated Notes or any
Subordinated Subsidiary Guarantee, except a payment of interest or principal at
Stated Maturity or Indebtedness permitted under clause (viii) of Section 4.09
hereof or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Subsidiaries after the
date of the closing of the Acquisition (excluding Restricted Payments permitted
by clauses (ii), (iii), (iv), (v), and (ix) of the next succeeding paragraph),
is less than the sum, without duplication, of (i) 50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the date of the closing
of the Acquisition to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash
proceeds or the fair market value of property other than cash received by the
Company since the date of the closing of the Acquisition as a contribution to
its common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of
Disqualified Stock or debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests (or Disqualified Stock
or convertible debt securities) sold to a Subsidiary of the Company), plus (iii)
to the extent that either any Existing Citizens Power Investment or any
Restricted Investment that reduced the amount available for Restricted Payments
under this clause (c) is sold for cash or otherwise liquidated or repaid for
cash or any dividend or payment is received by the Company or a Restricted
Subsidiary after the date of the closing of the Acquisition in respect of such
Investment, 100% of the amount of Net Proceeds or dividends or payments
(including the fair market value of property) received in connection therewith,
up to the amount of the Existing Citizens Power Investment on the date of the
closing of the Acquisition or the Restricted Investment that reduced this clause
(c), as the case may be, and thereafter 50% of the amount of Net Proceeds or
dividends or payments (including the fair market value of property) received in
connection therewith (except that the amount of dividends or payments received
in respect of payments of Obligations in respect of such Investments, such as
taxes, shall not increase the amounts under this clause (c)), plus (iv) to the
extent that any Unrestricted Subsidiary of the Company is redesignated as a
Restricted Subsidiary after the date of the closing of the Acquisition, 100% of
the fair market value of the Company's Investment in such Subsidiary as of the
date of such redesignation up to the amount of the Restricted Investments made
in such Subsidiary that reduced this clause (c) and 50% of the excess of the
fair market value of the Company's Investment in such Subsidiary as of the date
of such redesignation
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over (1) the amount of the Restricted Investment that reduced this clause (c)
and (2) any amounts that increased the amount available as a Permitted
Investment; provided, further, that if Citizens Power or any of its Subsidiaries
is designated as a Restricted Subsidiary, the amount of the fair market value of
the Investment therein on the date hereof shall also be credited to this clause
(c); provided, further, that any amounts that increase this clause (c) shall not
duplicatively increase amounts available as Permitted Investments.
The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of the this Senior Subordinated Note
Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of, other Equity Interests of the Company (other than any
Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)(ii) of
the preceding paragraph;
(iii) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;
(iv) dividends or distributions by a Restricted Subsidiary of the
Company so long as, in the case of any dividend or distribution payable on
or in respect of any class or series of securities issued by a Restricted
Subsidiary, the Company or a Restricted Subsidiary receives at least its
pro rata share of such dividend or distribution in accordance with its
Equity Interests in such class or series of securities;
(v) Investments in Unrestricted Subsidiaries having an aggregate
fair market value not to exceed the amount, at the time of such Investment,
substantially concurrently contributed in cash or Cash Equivalents to the
common equity capital of the Company after the date of the closing of the
Acquisition; provided that any such amount contributed shall be excluded
from the calculation made pursuant to clause (c) above;
(vi) the payment of dividends on the Company's Common Stock,
following the first public offering of the Company's Common Stock after the
date of the closing of the Acquisition, of up to 6% per annum of the net
proceeds received by the Company in such public offering, other than public
offerings with respect to the Company's Common Stock registered on Form S-
8;
(vii) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any present or former employee
or director of the Company (or any of its Restricted Subsidiaries) pursuant
to any management equity subscription agreement or stock option agreement
or any other management or employee benefit plan in effect as of the date
of the closing of the Acquisition;
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provided that (A) the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed $2.0
million in any twelve-month period (with unused amounts in any calendar
year being carried over to succeeding calendar years subject to a maximum
(without giving effect to the following proviso) of $5.0 million in any
calendar year); provided further that such amount in any calendar year may
be increased by an amount not to exceed (x) the cash proceeds from the sale
of Equity Interests of the Company or a Restricted Subsidiary to members of
management and directors of the Company and its Subsidiaries that occurs
after the date of the closing of the Acquisition, plus (y) the cash
proceeds of key-man life insurance policies received by the Company and its
Restricted Subsidiaries after the date of the closing of the Acquisition,
less (z) the amount of any Restricted Payments previously made pursuant to
clauses (x) and (y) of this subparagraph (vii); and, provided further, that
cancellation of Indebtedness owing to the Company from members of
management of the Company or any of its Restricted Subsidiaries in
connection with a repurchase of Equity Interests of the Company or a
Restricted Subsidiary will not be deemed to constitute a Restricted Payment
for purposes of this covenant or any other provision of this Senior
Subordinated Note Indenture and (B) no Default or Event of Default shall
have occurred and be continuing immediately after such transaction;
(viii) repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options; and
(ix) other Restricted Payments not otherwise prohibited by this
Section 4.07 in an aggregate amount not to exceed $25.0 million under this
clause (ix).
As of the date of the closing of the Acquisition, all of the Company's
Subsidiaries other than Citizen's Power and its Subsidiaries will be Restricted
Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated shall be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this Section 4.07. All such outstanding
Investments shall be deemed to constitute Investments in an amount equal to the
fair market value of such Investments at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
If, at any time, any Unrestricted Subsidiary would fail to meet the
requirements in the definition of "Unrestricted Subsidiary" as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Senior Subordinated Note Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period, and (ii) no Default or Event of Default would be in existence
following such designation.
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The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any noncash Restricted Payment or any adjustment made
pursuant to paragraph (c) of this Section 4.07 shall be determined by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Senior Subordinated Note Trustee, such determination to be based upon an opinion
or appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $25.0 million. Not later
than the date of making any Restricted Payment, the Company shall deliver to the
Senior Subordinated Note Trustee an Officer's Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed.
If any Restricted Investment is sold or otherwise liquidated or repaid
or any dividend or payment is received by the Company or a Restricted Subsidiary
and such amounts may be credited to clause (c) above, then such amounts will be
credited only to the extent of amounts not otherwise included in Consolidated
Net Income and that do not otherwise increase the amount available as a
Permitted Investment.
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary that is not a Senior Subordinated Note Guarantor to (i)(a)
pay dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits, or (b) pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Company or any of its Restricted Subsidiaries or
(iii) transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries. However, the foregoing restrictions will not apply to
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date of the Senior Subordinated Note Indenture
and/or the closing of the Acquisition, (b) the Senior Credit Facilities as in
effect as of the date of the Senior Subordinated Note Indenture and/or the
closing of the Acquisition, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacement or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other payment
restrictions than those contained in the Senior Credit Facilities as in effect
on the date of the Senior Subordinated Note Indenture and/or the closing of the
Acquisition, (c) the Senior Note Indenture, this Senior Subordinated Note
Indenture, the Senior Notes and the Senior Subordinated Notes, (d) applicable
law or any applicable rule, regulation or order, (e) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Senior
Subordinated Note Indenture to be incurred, (f) customary non-assignment
provisions in leases and other agreements entered into in the ordinary course of
business and consistent with past practices, (g) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired, (h) any
agreement for the sale of a
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Restricted Subsidiary that restricts distributions by that Restricted Subsidiary
pending its sale, (i) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced, (j) secured
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
Section 4.12 hereof that limits the right of the debtor to dispose of the assets
securing such Indebtedness, (k) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business, (l) restrictions on
cash or other deposits or net worth imposed by customers or lessors under
contracts or leases entered into in the ordinary course of business and (m) any
encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in clauses
(a) through (l) above, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Company's Board of
Directors, not materially more restrictive in the aggregate with respect to such
dividend and other payment restrictions than those (considered as a whole)
contained in the dividend or other payment restrictions prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company shall issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock and the Company's Restricted Subsidiaries may incur
Indebtedness or issue Disqualified Stock or preferred stock if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified
Stock or preferred stock is issued would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock or preferred stock had been issued, as the case may be, at
the beginning of such four-quarter period.
The provisions of the first paragraph of this Section 4.09 will not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Company of term Indebtedness under
Credit Facilities (and the Guarantee thereof by the Senior Subordinated
Note Guarantors); provided that the aggregate principal amount of all term
Indebtedness outstanding under this clause (i) after giving effect to such
incurrence does not exceed an amount equal to $920.0 million;
(ii) the incurrence by the Company of revolving credit
Indebtedness and letters of credit (with letters of credit being deemed to
have a principal amount equal to the maximum potential liability of the
Company and its Restricted Subsidiaries thereunder) under Credit Facilities
(and the Guarantee thereof by the Senior Subordinated Note Guarantors);
provided that the aggregate principal amount of all revolving credit
Indebtedness outstanding under this clause (ii) after giving effect to such
incurrence does not exceed an amount equal to $480.0 million;
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(iii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company, the Senior Subordinated
Note Guarantors and the Senior Note Guarantors of Indebtedness represented
by the Senior Notes, the Senior Subordinated Notes, the Senior Subsidiary
Guarantees and the Subordinated Subsidiary Guarantees limited in aggregate
principal amount, without duplication, to amounts outstanding under the
Senior Note Indenture and this Senior Subordinated Note Indenture as of
their respective dates;
(v) (A) the guarantee by the Company or any of the Senior
Subordinated Note Guarantors of Indebtedness of the Company or a Restricted
Subsidiary of the Company or (B) the incurrence of Indebtedness of a
Restricted Subsidiary to the extent that such Indebtedness is supported by
a letter of credit, in each case that was permitted to be incurred by
another provision of this covenant;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (including Capital Lease Obligations) to
finance the acquisition (including by direct purchase, by lease or
indirectly by the acquisition of the Capital Stock of a Person that becomes
a Restricted Subsidiary as a result of such acquisition) or improvement of
property (real or personal) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then
outstanding pursuant to this clause (vi) and including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (vi), does not exceed an
amount equal to 5% of Total Assets at the time of such incurrence;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by this Senior
Subordinated Note Indenture to be incurred under the first paragraph hereof
or clauses (iii), (iv) or (vii) of this paragraph;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Senior Subordinated Notes and (ii)(A) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary thereof shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(viii);
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the ordinary
course of business for the purpose of risk management and not for the
purpose of speculation;
(x) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt
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of an Unrestricted Subsidiary, such event shall be deemed to constitute an
incurrence of Indebtedness by a Restricted Subsidiary of the Company that
was not permitted by this clause (x), and the issuance of preferred stock
by Unrestricted Subsidiaries;
(xi) the incurrence of Indebtedness solely in respect of
performance, surety and similar bonds or completion or performance
guarantees (including, without limitation, performance guarantees pursuant
to coal supply agreements or equipment leases), to the extent that such
incurrence does not result in the incurrence of any obligation for the
payment of borrowed money to others;
(xii) the incurrence of Indebtedness arising from agreements of
the Company or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or a
Subsidiary; provided, however that (i) such Indebtedness is not reflected
on the balance sheet of the Company or any Restricted Subsidiary
(contingent obligations referred to in a footnote to financial statements
and not otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this clause (i)) and (ii)
the maximum assumable liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds including noncash proceeds (the fair
market value of such noncash proceeds being measured at the time received
and without giving effect to any subsequent changes in value) actually
received by the Company and its Restricted Subsidiaries in connection with
such disposition;
(xiii) the guarantee by the Company or any of the Senior
Subordinated Note Guarantors of additional Indebtedness relating to Black
Beauty Coal Company not to exceed $50.0 million in aggregate principal
amount outstanding at any one time under this clause (xiii);
(xiv) the incurrence of Indebtedness relating to the Bengalla
Joint Venture or the Warkworth Associates Joint Venture in an aggregate
amount not to exceed $100.0 million in aggregate principal amount
outstanding at any one time under this clause (xiv); and
(xv) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace
any Indebtedness incurred pursuant to this clause (xv), not to exceed
$250.0 million.
For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xv) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify or reclassify such item of
Indebtedness in any manner that complies with this Section 4.09. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be deemed to
be an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section 4.09; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued.
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Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value as determined in good
faith by the Company (evidenced by a resolution of the Board of Directors set
forth in an Officer's Certificate delivered to the Senior Subordinated Note
Trustee with respect to any Asset Sale determined to have a value greater that
$25.0 million) of the assets or Equity Interests issued or sold or otherwise
disposed of and (ii) at least 75% of the consideration therefor received by the
Company or such Subsidiary is in the form of cash, Cash Equivalents or
Marketable Securities; provided that the following amounts shall be deemed to be
cash: (w) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Senior Subordinated Notes or any guarantee thereof)
that are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Company or such Restricted Subsidiary from
further liability, (x) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash within 180 days
following the closing of such Asset Sale (to the extent of the cash received),
(y) any Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale; provided that the aggregate fair
market value (as determined above) of such Designated Noncash Consideration,
taken together with the fair market value at the time of receipt of all other
Designated Noncash Consideration received pursuant to this clause (y) less the
amount of Net Proceeds previously realized in cash from prior Designated Noncash
Consideration is less than 5% of Total Assets at the time of the receipt of such
Designated Noncash Consideration (with the fair market value of each item of
Designated Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value) and (z) Additional Assets received
in an exchange of assets transaction.
Within 360 days after the receipt of any cash Net Proceeds from an
Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply
such cash Net Proceeds, at its option, (a) to repay Senior Debt of the Company
or any Restricted Subsidiary including, without limitation, Indebtedness under a
Credit Facility and the Senior Notes, (b) to the acquisition of a majority of
the assets of, or a majority of the Voting Stock of, another Permitted Business,
the making of a capital expenditure or the acquisition of other assets or
Investments that are used or useful in a Permitted Business or (c) to apply the
cash Net Proceeds from such Asset Sale to an Investment in Additional Assets.
Any cash Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall be required to make an offer to all Holders of Senior
Subordinated Notes and all holders of other Indebtedness that is not Senior Debt
containing provisions similar to those set forth herein with respect to offers
to purchase or redeem with the proceeds of sales of assets (an "Asset Sale
Offer") to purchase the maximum principal amount of Senior Subordinated Notes
and such other Indebtedness that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase, in accordance with the procedures set forth herein and
such other Indebtedness. To the extent that any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by this Senior Subordinated Note
Indenture. If the aggregate principal amount of Senior Subordinated Notes and
such other Indebtedness tendered into such Asset Sale Offer surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Senior Subordinated
Note Trustee shall select
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the Senior Subordinated Notes and such other Indebtedness to be purchased on a
pro rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction") involving
aggregate payments or consideration in excess of $5.0 million, unless (i) such
Affiliate Transaction is on terms that are materially no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Senior
Subordinated Note Trustee (a) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, a resolution of the Board of Directors set forth in an
Officer's Certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has been approved by a
majority of the members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $25.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing.
Notwithstanding the foregoing, the following items shall not be deemed
to be Affiliate Transactions: (i) any employment agreement or other compensation
plan or arrangement for employees entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company or such Restricted Subsidiary; (ii)
transactions between or among the Company and/or its Restricted Subsidiaries,
(iii) payment of reasonable fees to officers, directors, employees or
consultants of the Company; (iv) Restricted Payments that are permitted by, and
Investments that are not prohibited by, Section 4.07 hereof; (v) indemnification
payments made to officers, directors and employees of the Company or any
Restricted Subsidiary pursuant to charter, bylaw, statutory or contractual
provisions; (vi) the payment of customary annual management, consulting and
advisory fees and related expenses to Lehman Merchant Bank and its Affiliates;
(vii) payments by the Company or any of its Restricted Subsidiaries to Lehman
Merchant Bank and its Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which payments are approved by a majority of the Board of Directors
of the Company in good faith; (viii) the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its obligations under the terms
of, any stockholders' agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the date of the
closing of the Acquisition and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of obligations under any future
amendment to any such existing agreement or under any similar agreement entered
into after the date of the closing of the Acquisition shall only be permitted by
this clause (viii) to the extent that the terms of any such amendment or new
agreement are not otherwise disadvantageous to the Holders in any material
respect; (ix) transactions pursuant to the terms of the Transaction Documents in
effect on the date of the closing of the Acquisition; (x) transactions with
Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners
or purchasers or sellers of goods or services, in each case in the ordinary
course of business (including, without limitation, pursuant to joint venture
agreements) and otherwise in compliance
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with the terms of this Senior Subordinated Note Indenture which are, in the
aggregate (taking into account all the costs and benefits associated with such
transactions), materially no less favorable to the Company or its Restricted
Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person, in the reasonable determination of the Board of Directors of the Company
or the senior management thereof, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party; (xi)
guarantees of performance by the Company and its Restricted Subsidiaries of
Unrestricted Subsidiaries in the ordinary course of business, except for
guarantees of Obligations in respect of borrowed money; and (xii) pledges of
Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of
Unrestricted Subsidiaries.
Section 4.12. Liens.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind securing
Indebtedness or trade payables (other than Permitted Liens) upon any of their
property or assets, now owned or hereafter acquired, unless all payments due
under this Senior Subordinated Note Indenture and the Senior Subordinated Notes
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligations are no longer secured by a Lien.
Section 4.13. Business activities.
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Restricted Subsidiaries
taken as a whole.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Senior Subordinated Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of Senior
Subordinated Notes will have the right to require the Company to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Senior Subordinated 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 and Liquidated Damages
thereon, if any, to the date of purchase (the "Change of Control Payment").
Within ten days following any Change of Control, the Company will mail a notice
to each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase Senior Subordinated Notes on the
date specified in such notice, which
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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 herein 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 Senior
Subordinated Notes as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Senior Subordinated 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 Senior Subordinated Notes or portions thereof so tendered and (3)
deliver or cause to be delivered to the Senior Subordinated Note Trustee the
Senior Subordinated Notes so accepted together with an Officer's Certificate
stating the aggregate principal amount of Senior Subordinated Notes or portions
thereof being purchased by the Company. The Paying Agent will promptly mail to
each Holder of Senior Subordinated Notes so tendered the Change of Control
Payment for such Senior Subordinated Notes, and, upon receipt of an
Authentication Order, the Senior Subordinated Note Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Senior Subordinated Note equal in principal amount to any unpurchased
portion of the Senior Subordinated Notes surrendered, if any; provided that each
such new Senior Subordinated Note will be in a principal amount of $1,000 or an
integral multiple thereof. Prior to complying with the provisions of this
Section 4.15, but in any event within 90 days following a Change of Control, the
Company shall either repay all outstanding Senior Debt other than the Senior
Notes or obtain the requisite consents, if any, under all agreements governing
outstanding Senior Debt other than the Senior Notes to permit the repurchase of
Senior Subordinated Notes required by this Section 4.15. With respect to the
Senior Subordinated Notes, the Company may effect a Change of Control hereunder
pursuant to the terms of this Senior Subordinated Note Indenture; provided that
the Company complies with the provisions of the Senior Note Indenture pursuant
to Section 4.15 thereunder. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Senior Subordinated Note Indenture
are applicable.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will not be required to make a Change of Control Offer upon a Change of
Control 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
Senior Subordinated Notes validly tendered and not withdrawn under such Change
of Control Offer or if the Company exercises its option to purchase the Senior
Subordinated Notes.
Section 4.16. No Senior Subordinated Debt.
(i) The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt and senior in any respect in right of
payment to the Senior Subordinated Notes, and (ii) no Senior Subordinated Note
Guarantor shall incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is subordinate or junior in right of payment to
the Senior Subsidiary Guarantees and senior in any respect in right of payment
to the Subordinated Subsidiary Guarantees.
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Section 4.17. Additional Subordinated 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 of the Senior Credit Facilities, then such newly
acquired or created Domestic Subsidiary shall execute a supplemental indenture
in form and substance substantially similar to Exhibit F hereto providing that
---------
such Domestic Subsidiary shall become a Senior Subordinated Note Guarantor under
this Senior Subordinated Note Indenture, provided, however, this Section 4.17
shall not apply to any Domestic Subsidiary that has been properly designated as
an Unrestricted Subsidiary in accordance with this Senior Subordinated Note
Indenture for so long as it continues to constitute an Unrestricted Subsidiary.
Section 4.18. Payments for consents
The Company nor any of its Restricted Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Senior Subordinated Notes for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Senior Subordinated Note Indenture or the Senior Subordinated
Notes unless such consideration is offered to be paid or is paid to all Holders
of the Senior Subordinated Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the
Registration Rights Agreement, the Senior Subordinated Notes and this Senior
Subordinated Note Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Senior Subordinated Note Trustee; (iii)
immediately after such transaction no Default or Event of Default exists; and
(iv) except in the case of a merger of the Company with or into a Wholly Owned
Restricted Subsidiary of the Company, immediately after giving pro forma effect
to such transaction, as if such transaction had occurred at the beginning of the
applicable four-quarter period, (A) the entity surviving such consolidation or
merger would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 or (B) the Fixed Charge Coverage Ratio for the Company
or the entity or Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made would, immediately after
giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, not be less than such Fixed
Charge
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Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior
to such transaction. The Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. The provisions of this Section 5.01 will not
be applicable to a sale, assignment, transfer, conveyance or other disposition
of assets between or among the Company and its Restricted Subsidiaries.
Notwithstanding the foregoing clause (iv), (i) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (ii) the Company may merge with an
Affiliate that has no significant assets or liabilities and was formed solely
for the purpose of changing the jurisdiction of organization of the Company in
another State of the United States or the form of organization of the Company so
long as the amount of Indebtedness of the Company and its Restricted
Subsidiaries is not increased thereby and provided that the successor assumes
all the obligations of the Company under the Registration Rights Agreement, the
Senior Subordinated Notes and this Senior Subordinated Note Indenture pursuant
to a supplemental indenture in a form reasonably satisfactory to the Senior
Subordinated Note Trustee.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Senior Subordinated Note Indenture referring to the "Company"
shall refer instead to the successor corporation and not to the Company), and
may exercise every right and power of the Company under this Senior Subordinated
Note Indenture with the same effect as if such successor Person had been named
as the Company herein; provided, however, that the predecessor Company shall not
be relieved from the obligation to pay the principal of and interest on the
Senior Subordinated Notes except in the case of a sale of all of the Company's
assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on, or
Liquidated Damages, if any, with respect to, the Senior Subordinated Notes and
such default continues for a period of 30 days (whether or not prohibited by the
subordination provisions of Article 10);
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Senior Subordinated Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise (whether or not prohibited by the subordination
provisions of Article 10);
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(c) the Company or any of its Subsidiaries fails to make the offer
required or to purchase any of the Senior Subordinated Notes as required by
Sections 4.10 and/or 4.15 hereof;
(d) the Company fails to comply for 30 days after notice to the
Company by the Senior Subordinated Note Trustee with any of the provisions of
Sections 4.07 or 4.09 hereof; or the Company fails to observe or perform any
other covenant, representation, warranty or other agreement in this Senior
Subordinated Note Indenture or the Senior Subordinated Notes for 60 days after
notice to the Company by the Senior Subordinated Note Trustee or the Holders of
at least 25% in aggregate principal amount of the Senior Subordinated Notes then
outstanding voting as a single class;
(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 for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or
is created after the date of this Senior Subordinated Note 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
$50.0 million or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any of its that are Restricted Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
and such judgment or judgments remain undischarged for a period (during which
execution shall not be effectively stayed) of 60 days, provided that the
aggregate of all such undischarged judgments exceeds $50.0 million;
(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; or
(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;
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(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;
(i) except as permitted by this Senior Subordinated Note Indenture,
any Subordinated 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 Senior Subordinated Note Guarantor, or any Person acting on behalf
of any Senior Subordinated Note Guarantor, shall deny or disaffirm its
obligations under such Senior Subordinated Note Guarantor's Subordinated
Subsidiary Guarantee; or
(j) the Company fails to deposit the required amounts into the Escrow
Account pursuant to the Escrow Letter or any failure of the proceeds of the
Escrow Account to be applied as required under the Escrow Letter.
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 as a whole, would constitute a Significant
Subsidiary) occurs and is continuing, the Senior Subordinated Note Trustee or
the Holders of at least 25% in principal amount of the then outstanding Senior
Subordinated Notes may declare all the Senior Subordinated Notes to be due and
payable immediately; provided, that so long as any Designated Senior Debt is
outstanding, such acceleration shall not be effective until the earlier of (i)
an acceleration under any Designated Senior Debt or (ii) five Business Days
after receipt by the Company and the Representative of the Designated Senior
Debt of written notice of such acceleration of the Senior Subordinated Notes.
Upon any such declaration, the Senior Subordinated 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 with respect to the
Company, 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, all outstanding Senior Subordinated Notes shall be due
and payable without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Senior Subordinated Notes by
written notice to the Senior Subordinated Note 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.
If an Event of Default occurs on or after May 15, 2003, by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Senior
Subordinated Notes pursuant to Section 3.07 hereof, then, upon acceleration of
the Senior
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Subordinated Notes, an equivalent premium shall also become and be immediately
due and payable, to the extent permitted by law, anything in this Senior
Subordinated Note Indenture or in the Senior Subordinated Notes to the contrary
notwithstanding. If an Event of Default occurs prior to May 15, 2003, by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding paying the premium upon redemption of the
Senior Subordinated Notes prior to such date, then, upon acceleration of the
Senior Subordinated Notes, a premium shall also become and be immediately due
and payable in an amount, for each of the years beginning on May 15 of the years
set forth below, as set forth below (expressed as a percentage of the aggregate
principal amount to the date of payment that would otherwise be due but for the
provisions of this sentence):
Year Percentage
1998............................... 112.833%
1999............................... 111.229%
2000............................... 109.625%
2001............................... 108.021%
2002............................... 106.417%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Senior
Subordinated Note Trustee may pursue any available remedy to collect the payment
of principal, premium, if any, and interest and Liquidated Damages, if any, on
the Senior Subordinated Notes or to enforce the performance of any provision of
the Senior Subordinated Notes or this Senior Subordinated Note Indenture.
The Senior Subordinated Note Trustee may maintain a proceeding even if
it does not possess any of the Senior Subordinated Notes or does not produce any
of them in the proceeding. A delay or omission by the Senior Subordinated Note
Trustee or any Holder of a Senior Subordinated 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 Senior Subordinated Notes by notice to the Senior
Subordinated Note Trustee may on behalf of the Holders of all of the Senior
Subordinated 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 and Liquidated Damages, if any, or interest
on, the Senior Subordinated Notes (including in connection with an offer to
purchase) (provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Senior Subordinated Notes may rescind
an acceleration and its consequences, including any related payment default that
resulted from such acceleration). 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 Senior Subordinated Note Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
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Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Senior Subordinated
Note Trustee or exercising any trust or power conferred on it. However, the
Senior Subordinated Note Trustee may refuse to follow any direction that
conflicts with law or this Senior Subordinated Note Indenture that the Senior
Subordinated Note Trustee determines may be unduly prejudicial to the rights of
other Holders of Senior Subordinated Notes or that may involve the Senior
Subordinated Note Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Senior Subordinated Note may pursue a remedy with
respect to this Senior Subordinated Note Indenture or the Senior Subordinated
Notes only if:
(a) the Holder of a Senior Subordinated Note gives to the Senior
Subordinated Note Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Senior Subordinated Notes make a written request to the Senior
Subordinated Note Trustee to pursue the remedy;
(c) such Holder of a Senior Subordinated Note or Holders of
Senior Subordinated Notes offer and, if requested, provide to the Senior
Subordinated Note Trustee indemnity satisfactory to the Senior Subordinated
Note Trustee against any loss, liability or expense;
(d) the Senior Subordinated Note 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
principal amount of the then outstanding Senior Subordinated Notes do not
give the Senior Subordinated Note Trustee a direction inconsistent with the
request.
A Holder of a Senior Subordinated Note may not use this Senior
Subordinated Note Indenture to prejudice the rights of another Holder of a
Senior Subordinated Note or to obtain a preference or priority over another
Holder of a Senior Subordinated Note.
Section 6.07. Rights of Holders of Senior Subordinated Notes to Receive
Payment.
Notwithstanding any other provision of this Senior Subordinated Note
Indenture, the right of any Holder of a Senior Subordinated Note to receive
payment of principal, premium and Liquidated Damages, if any, and interest on
the Senior Subordinated Note, on or after the respective due dates expressed in
the Senior Subordinated 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.
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Section 6.08. Collection Suit by Senior Subordinated Note Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Senior Subordinated Note Trustee is authorized to recover
judgment in its own name and as Senior Subordinated Note Trustee of an express
trust against the Company for the whole amount of principal of, premium and
Liquidated Damages, if any, and interest remaining unpaid on the Senior
Subordinated 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 Senior Subordinated Note Trustee, its agents
and counsel.
Section 6.09. Senior Subordinated Note Trustee May File Proofs of Claim.
The Senior Subordinated Note 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 Senior Subordinated Note Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Senior Subordinated Note Trustee, its agents and counsel) and the Holders of the
Senior Subordinated Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Senior Subordinated 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 Senior Subordinated Note Trustee, and in the
event that the Senior Subordinated Note Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Senior Subordinated Note
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Senior Subordinated Note Trustee, its agents
and counsel, and any other amounts due the Senior Subordinated Note Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Senior Subordinated
Note Trustee, its agents and counsel, and any other amounts due the Senior
Subordinated Note Trustee under Section 7.07 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Senior Subordinated Note 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 Senior
Subordinated Notes or the rights of any Holder, or to authorize the Senior
Subordinated Note Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10. Priorities.
If the Senior Subordinated Note Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Senior Subordinated Note Trustee, its agents and
attorneys for amounts due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Senior Subordinated Note Trustee and the costs and expenses of collection;
Second: to Holders of Senior Subordinated Notes for amounts due and
unpaid on the Senior Subordinated Notes for principal, premium and Liquidated
Damages, if any, and interest, ratably,
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without preference or priority of any kind, according to the amounts due and
payable on the Senior Subordinated Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Senior Subordinated Note Trustee may fix a record date and payment
date for any payment to Holders of Senior Subordinated 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
Senior Subordinated Note Indenture or in any suit against the Senior
Subordinated Note Trustee for any action taken or omitted by it as a Senior
Subordinated Note 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 does not apply to a suit by the Senior Subordinated Note
Trustee, a suit by a Holder of a Senior Subordinated Note pursuant to Section
6.07 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Senior Subordinated Notes.
ARTICLE 7.
SENIOR SUBORDINATED NOTE TRUSTEE
Section 7.01. Duties of Senior Subordinated Note Trustee.
(a) If an Event of Default has occurred and is continuing, the Senior
Subordinated Note Trustee shall exercise such of the rights and powers vested in
it by this Senior Subordinated Note Indenture, and use the same degree of care
and skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Senior Subordinated Note Trustee shall
be determined solely by the express provisions of this Senior Subordinated
Note Indenture and the Senior Subordinated Note Trustee need perform only
those duties that are specifically set forth in this Senior Subordinated
Note Indenture and no others, and no implied covenants or obligations shall
be read into this Senior Subordinated Note Indenture against the Senior
Subordinated Note Trustee; and
(ii) in the absence of bad faith on its part, the Senior
Subordinated Note Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Senior Subordinated Note Trustee
and conforming to the requirements of this Senior Subordinated Note
Indenture. However, the Senior Subordinated Note Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Senior Subordinated Note Indenture.
(c) The Senior Subordinated Note Trustee may not be relieved from
liabilities for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
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(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Senior Subordinated Note Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Senior Subordinated Note Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Senior Subordinated Note Trustee shall not be liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Senior Subordinated Note Indenture that in any way relates to the Senior
Subordinated Note Trustee is subject to paragraphs (a), (b), (c), (e) and (f) of
this Section and Section 7.02.
(e) No provision of this Senior Subordinated Note Indenture shall
require the Senior Subordinated Note Trustee to expend or risk its own funds or
incur any liability. The Senior Subordinated Note Trustee shall be under no
obligation to exercise any of its rights and powers under this Senior
Subordinated Note Indenture at the request of any Holders, unless such Holder
shall have offered to the Senior Subordinated Note Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(f) The Senior Subordinated Note Trustee shall not be liable for
interest on any money received by it except as the Senior Subordinated Note
Trustee may agree in writing with the Company. Money held in trust by the
Senior Subordinated Note Trustee need not be segregated from other funds except
to the extent required by law.
Section 7.02. Rights of Senior Subordinated Note Trustee.
(a) The Senior Subordinated Note Trustee may conclusively rely upon
any document believed by it to be genuine and to have been signed or presented
by the proper Person. The Senior Subordinated Note Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Senior Subordinated Note Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel or
both. The Senior Subordinated Note Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officer's
Certificate or Opinion of Counsel. The Senior Subordinated Note Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Senior Subordinated Note Trustee may act through its attorneys
and agents and shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Senior Subordinated Note Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be authorized
or within the rights or powers conferred upon it by this Senior Subordinated
Note Indenture.
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(e) Unless otherwise specifically provided in this Senior Subordinated
Note Indenture, any demand, request, direction or notice from the Company or any
Senior Subordinated Note Guarantor shall be sufficient if signed by an Officer
of the Company or Senior Subordinated Note Guarantor issuing such demand,
request or notice.
(f) The Senior Subordinated Note Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Senior Subordinated
Note Indenture at the request or direction of any of the Holders unless such
Holders shall have offered to the Senior Subordinated Note Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Senior Subordinated Note Trustee.
The Senior Subordinated Note Trustee in its individual or any other
capacity may become the owner or pledgee of Senior Subordinated Notes and may
otherwise deal with the Company or any Affiliate of the Company with the same
rights it would have if it were not Senior Subordinated Note Trustee. However,
in the event that the Senior Subordinated Note Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Senior Subordinated Note Trustee or resign. Any Agent
may do the same with like rights and duties. The Senior Subordinated Note
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Senior Subordinated Note Trustee's Disclaimer.
The Senior Subordinated Note Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Senior
Subordinated Note Indenture or the Senior Subordinated Notes, it shall not be
accountable for the Company's use of the proceeds from the Senior Subordinated
Notes or any money paid to the Company or upon the Company's direction under any
provision of this Senior Subordinated Note Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Senior Subordinated Note Trustee, and it shall not be responsible
for any statement or recital herein or any statement in the Senior Subordinated
Notes or any other document in connection with the sale of the Senior
Subordinated Notes or pursuant to this Senior Subordinated Note Indenture other
than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Senior Subordinated Note Trustee, the Senior Subordinated Note
Trustee shall mail to Holders of Senior Subordinated Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Senior Subordinated Note, the Senior Subordinated Note Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Senior Subordinated Notes.
Section 7.06. Reports by Senior Subordinated Note Trustee to Holders of the
Senior Subordinated Notes.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Senior Subordinated Note Indenture, and for so long as Senior
Subordinated Notes remain outstanding,
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the Senior Subordinated Note Trustee shall mail to the Holders of the Senior
Subordinated Notes a brief report dated as of such reporting date that complies
with TIA (S) 313(a) (but if no event described in TIA (S) 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Senior Subordinated Note Trustee also shall comply with TIA
(S) 313(b)(2). The Senior Subordinated Note Trustee shall also transmit by mail
all reports as required by TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders of
Senior Subordinated Notes shall be mailed to the Company and filed with the SEC
and each stock exchange on which the Senior Subordinated Notes are listed in
accordance with TIA (S) 313(d). The Company shall promptly notify the Senior
Subordinated Note Trustee when the Senior Subordinated Notes are listed on any
stock exchange.
Section 7.07. Compensation and Indemnity.
The Company and the Senior Subordinated Note Guarantors shall pay to
the Senior Subordinated Note Trustee from time to time reasonable compensation
for its acceptance of this Senior Subordinated Note Indenture and services
hereunder. The Senior Subordinated Note Trustee's compensation shall not be
limited by any law on compensation of a Senior Subordinated Note Trustee of an
express trust. The Company and the Senior Subordinated Note Guarantors shall
reimburse the Senior Subordinated Note Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Senior Subordinated
Note Trustee's agents and counsel.
The Company and the Senior Subordinated Note Guarantors shall
indemnify the Senior Subordinated Note Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Senior Subordinated Note
Indenture, including the costs and expenses of enforcing this Senior
Subordinated Note Indenture against the Company and the Senior Subordinated Note
Guarantors (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company and the Senior Subordinated Note Guarantors or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Senior Subordinated Note Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Senior Subordinated
Note Trustee to so notify the Company shall not relieve the Company and the
Senior Subordinated Note Guarantors of its obligations hereunder. The Company
shall defend the claim and the Senior Subordinated Note Trustee shall cooperate
in the defense. The Senior Subordinated Note Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company and the Senior Subordinated Note
Guarantors under this Section 7.07 shall survive the satisfaction and discharge
of this Senior Subordinated Note Indenture.
To secure the Company's and the Senior Subordinated Note Guarantors'
payment obligations in this Section, the Senior Subordinated Note Trustee shall
have a Lien prior to the Senior Subordinated Notes on all money or property held
or collected by the Senior Subordinated Note Trustee, except that held in trust
to pay principal and interest on particular Senior Subordinated Notes. Such Lien
shall survive the satisfaction and discharge of this Senior Subordinated Note
Indenture.
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When the Senior Subordinated Note Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.01(g) or (h) hereof
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Senior Subordinated Note Trustee shall comply with the provisions
of TIA (S) 313(b)(2) to the extent applicable.
Section 7.08. Replacement of Senior Subordinated Note Trustee.
A resignation or removal of the Senior Subordinated Note Trustee and
appointment of a successor Senior Subordinated Note Trustee shall become
effective only upon the successor Senior Subordinated Note Trustee's acceptance
of appointment as provided in this Section.
The Senior Subordinated Note Trustee may resign in writing at any time
and be discharged from the trust hereby created by so notifying the Company. The
Holders of Senior Subordinated Notes of a majority in principal amount of the
then outstanding Senior Subordinated Notes may remove the Senior Subordinated
Note Trustee by so notifying the Senior Subordinated Note Trustee and the
Company in writing. The Company may remove the Senior Subordinated Note Trustee
if:
(a) the Senior Subordinated Note Trustee fails to comply with
Section 7.10 hereof;
(b) the Senior Subordinated Note Trustee is adjudged a bankrupt
or an insolvent or an order for relief is entered with respect to the
Senior Subordinated Note Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Senior
Subordinated Note Trustee or its property; or
(d) the Senior Subordinated Note Trustee becomes incapable of
acting.
If the Senior Subordinated Note Trustee resigns or is removed or if a
vacancy exists in the office of Senior Subordinated Note Trustee for any reason,
the Company shall promptly appoint a successor Senior Subordinated Note Trustee.
Within one year after the successor Senior Subordinated Note Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes may appoint a successor Senior Subordinated Note
Trustee to replace the successor Senior Subordinated Note Trustee appointed by
the Company.
If a successor Senior Subordinated Note Trustee does not take office
within 60 days after the retiring Senior Subordinated Note Trustee resigns or is
removed, the retiring Senior Subordinated Note Trustee, the Company, or the
Holders of Senior Subordinated Notes of at least 10% in principal amount of the
then outstanding Senior Subordinated Notes may petition any court of competent
jurisdiction for the appointment of a successor Senior Subordinated Note
Trustee.
If the Senior Subordinated Note Trustee, after written request by any
Holder of a Senior Subordinated Note who has been a Holder of a Senior
Subordinated Note for at least six months, fails to comply with Section 7.10,
such Holder of a Senior Subordinated Note may petition any court of competent
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jurisdiction for the removal of the Senior Subordinated Note Trustee and the
appointment of a successor Senior Subordinated Note Trustee.
A successor Senior Subordinated Note Trustee shall deliver a written
acceptance of its appointment to the retiring Senior Subordinated Note Trustee
and to the Company. Thereupon, the resignation or removal of the retiring Senior
Subordinated Note Trustee shall become effective, and the successor Senior
Subordinated Note Trustee shall have all the rights, powers and duties of the
Senior Subordinated Note Trustee under this Senior Subordinated Note Indenture.
The successor Senior Subordinated Note Trustee shall mail a notice of its
succession to Holders of the Senior Subordinated Notes. The retiring Senior
Subordinated Note Trustee shall promptly transfer all property held by it as
Senior Subordinated Note Trustee to the successor Senior Subordinated Note
Trustee, provided all sums owing to the Senior Subordinated Note Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Senior Subordinated Note Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Senior Subordinated Note
Trustee.
Section 7.09. Successor Senior Subordinated Note Trustee by Merger, etc.
If the Senior Subordinated Note Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Senior Subordinated Note Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Senior Subordinated Note Trustee
hereunder that is a corporation organized and doing business under the laws of
the United States of America or of any state thereof that is authorized under
such laws to exercise corporate Senior Subordinated Note Trustee power, that is
subject to supervision or examination by federal or state authorities and that
has a combined capital and surplus of at least $100.0 million as set forth in
its most recent published annual report of condition.
This Senior Subordinated Note Indenture shall always have a Senior
Subordinated Note Trustee who satisfies the requirements of TIA (S) 310(a)(1),
(2) and (5). The Senior Subordinated Note Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Senior Subordinated Note Trustee is subject to TIA (S) 311(a),
excluding any creditor relationship listed in TIA (S) 311(b). A Senior
Subordinated Note Trustee who has resigned or been removed shall be subject to
TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officer's Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied
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to all outstanding Senior Subordinated Notes upon compliance with the conditions
set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Senior
Subordinated Notes and to have each Senior Subordinated Note Guarantor's
obligation discharged with respect to its Subordinated 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 Senior Subordinated Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Senior Subordinated Note Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Senior
Subordinated Notes and this Senior Subordinated Note Indenture (and the Senior
Subordinated Note 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 Senior Subordinated Notes to
receive solely from the trust fund described in Section 8.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest and Liquidated Damages, if any, on such Senior
Subordinated Notes when such payments are due, (b) the Company's obligations
with respect to such Senior Subordinated Notes under Article 2 and Section 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Senior
Subordinated Note Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Senior Subordinated Note
Guarantor shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from their obligations under the covenants
contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17
and 4.18 hereof with respect to the outstanding Senior Subordinated Notes on and
after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, "Covenant Defeasance"), and the Senior Subordinated 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
Senior Subordinated Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Senior Subordinated Notes, the Company and each Senior Subordinated
Note 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 Senior Subordinated Note
Indenture and such Senior Subordinated Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to
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this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(d) through 6.01(f) hereof shall not
constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Senior Subordinated Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Senior Subordinated
Note Trustee, in trust, for the benefit of the Holders, cash in United States
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on the outstanding Senior Subordinated Notes on
the stated date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Senior Subordinated Notes
are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Senior Subordinated Note Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Senior Subordinated
Note Trustee confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B) since the date
of this Senior Subordinated Note 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 shall confirm that, the Holders of the
outstanding Senior Subordinated 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 8.03 hereof, the Company
shall have delivered to the Senior Subordinated Note Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Senior Subordinated
Note Trustee confirming that the Holders of the outstanding Senior Subordinated
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;
(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 Senior Subordinated Notes pursuant to this
Article 8 concurrently with such incurrence) or insofar as Sections 6.01(g) or
6.01(h) hereof is 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 Senior Subordinated Note 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;
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(f) the Company shall have delivered to the Senior Subordinated Note
Trustee an Opinion of Counsel (which may be subject to customary exceptions) to
the effect that on the effective date of such defeasance, 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 Senior Subordinated Note
Trustee an Officer's 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 other creditors of the Company; and
(h) the Company shall have delivered to the Senior Subordinated Note
Trustee an Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Senior
Subordinated Note Trustee (or other qualifying Senior Subordinated Note Trustee,
collectively for purposes of this Section 8.05, the "Senior Subordinated Note
Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Senior
Subordinated Notes shall be held in trust and applied by the Senior Subordinated
Note Trustee, in accordance with the provisions of such Senior Subordinated
Notes and this Senior Subordinated Note Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Senior Subordinated Note Trustee may determine, to the Holders of
such Senior Subordinated 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 Senior Subordinated Note Guarantors shall pay and
indemnify the Senior Subordinated Note Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 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 Senior
Subordinated Notes.
Anything in this Article 8 to the contrary notwithstanding, the Senior
Subordinated Note Trustee shall deliver or pay to the Company from time to time
upon the request of the Company any money or non-callable Government Securities
held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Senior Subordinated Note Trustee
(which may be the opinion delivered under Section 8.04(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 8.06. Repayment to Company.
Any money deposited with the Senior Subordinated Note 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 Senior Subordinated 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
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by the Company) shall be discharged from such trust; and the Holder of such
Senior Subordinated Note shall thereafter, as a secured creditor, look only to
the Company for payment thereof, and all liability of the Senior Subordinated
Note Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as Senior Subordinated Note Trustee thereof, shall
thereupon cease; provided, however, that the Senior Subordinated Note 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 8.07. Reinstatement.
If the Senior Subordinated Note Trustee or Paying Agent is unable to
apply any United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 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 Company's
obligations under this Senior Subordinated Note Indenture and the Senior
Subordinated Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Senior
Subordinated Note Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 8.02 or 8.03 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 Senior Subordinated Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Senior Subordinated Notes to receive such payment from the money held by
the Senior Subordinated Note Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Senior Subordinated Notes.
Notwithstanding Section 9.02 of this Senior Subordinated Note
Indenture, the Company, the Senior Subordinated Note Guarantors and the Senior
Subordinated Note Trustee may amend or supplement this Senior Subordinated Note
Indenture, the Subordinated Subsidiary Guarantees or the Senior Subordinated
Notes without the consent of any Holder of a Senior Subordinated Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated Notes or to
alter the provisions of Article 2 hereof (including the related
definitions) in a manner that does not materially adversely affect any
Holder;
(c) to provide for the assumption of the Company's or a Senior
Subordinated Note Guarantor's obligations to the Holders of the Senior
Subordinated Notes by a successor to the Company or a Senior Subordinated
Note Guarantor pursuant to Article 5 or Article 11 hereof;
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(d) to make any change that would provide any additional rights
or benefits to the Holders of the Senior Subordinated Notes or that does
not adversely affect the legal rights hereunder of any Holder of the Senior
Subordinated Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Senior Subordinated Note Indenture under
the TIA;
(f) to provide for the issuance of Additional Senior
Subordinated Notes in accordance with the limitations set forth in this
Senior Subordinated Note Indenture as of the date hereof; or
(g) to allow any Senior Subordinated Note Guarantor to execute a
supplemental Senior Subordinated Note Indenture and/or a Subordinated
Subsidiary Guarantee with respect to the Senior Subordinated 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
Senior Subordinated Note Indenture, and upon receipt by the Senior Subordinated
Note Trustee of the documents described in Section 7.02 hereof, the Senior
Subordinated Note Trustee shall join with the Company and the Senior
Subordinated Note Guarantors in the execution of any amended or supplemental
Senior Subordinated Note Indenture authorized or permitted by the terms of this
Senior Subordinated Note Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Senior
Subordinated Note Trustee shall not be obligated to enter into such amended or
supplemental Senior Subordinated Note Indenture that affects its own rights,
duties or immunities under this Senior Subordinated Note Indenture or otherwise.
Section 9.02. WITH CONSENT OF HOLDERS OF SENIOR SUBORDINATED NOTES.
Except as provided below in this Section 9.02, the Company and the
Senior Subordinated Note Trustee may amend or supplement this Senior
Subordinated Note Indenture (including Sections 3.09, 3.10, 4.10 and 4.15
hereof), the Subordinated Subsidiary Guarantees and the Senior Subordinated
Notes may be amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Senior Subordinated Notes (including
Additional Senior Subordinated Notes, if any) then outstanding voting as a
single class (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Senior Subordinated Notes), and, subject
to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Senior Subordinated Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes (including Additional Senior Subordinated Notes, if
any) voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Senior Subordinated
Notes). Without the consent of at least 75% in principal amount of the Senior
Subordinated Notes then outstanding (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, such Senior
Subordinated Notes), no waiver or amendment to this Senior Subordinated Note
Indenture may make any change in the provisions of Article 10 hereof that
adversely affects the rights of any Holder of Senior Subordinated Notes.
Section 2.08 hereof shall
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determine which Senior Subordinated Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Senior Subordinated Note Indenture, and upon the filing with the Senior
Subordinated Note Trustee of evidence satisfactory to the Senior Subordinated
Note Trustee of the consent of the Holders of Senior Subordinated Notes as
aforesaid, and upon receipt by the Senior Subordinated Note Trustee of the
documents described in Section 7.02 hereof, the Senior Subordinated Note Trustee
shall join with the Company in the execution of such amended or supplemental
Senior Subordinated Note Indenture unless such amended or supplemental Senior
Subordinated Note Indenture directly affects the Senior Subordinated Note
Trustee's own rights, duties or immunities under this Senior Subordinated Note
Indenture or otherwise, in which case the Senior Subordinated Note Trustee may
in its discretion, but shall not be obligated to, enter into such amended or
supplemental Senior Subordinated Note Indenture.
It shall not be necessary for the consent of the Holders of Senior
Subordinated Notes under this Section 9.02 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
becomes effective, the Company shall mail to the Holders of Senior Subordinated
Notes affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Senior Subordinated Note Indenture or waiver. Subject to
Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal
amount of the Senior Subordinated Notes (including Additional Senior
Subordinated 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
Senior Subordinated Note Indenture or the Senior Subordinated Notes. However,
without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Senior Subordinated Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Senior Subordinated Notes
whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Senior Subordinated Note or alter or waive any of the provisions with
respect to the redemption of the Senior Subordinated Notes except as
provided above with respect to Sections 3.09, 3.10, 4.10 and 4.15 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Senior Subordinated Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if any,
on the Senior Subordinated Notes (except a rescission of acceleration of
the Senior Subordinated Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Senior Subordinated
Notes (including Additional Senior Subordinated Notes, if any) and a waiver
of the payment default that resulted from such acceleration;
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(e) make any Senior Subordinated Note payable in money other
than that stated in the Senior Subordinated Notes;
(f) make any change in the provisions of this Senior
Subordinated Note Indenture relating to waivers of past Defaults or the
rights of Holders of Senior Subordinated Notes to receive payments of
principal of or premium, interest or Liquidated Damages, if any, on the
Senior Subordinated Notes;
(g) waive a redemption payment with respect to any Senior
Subordinated Note (other than a payment required by Sections 4.10 or 4.15);
(h) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions; or
(i) release any Senior Subordinated Note Guarantor from any of
its obligations under its Subordinated Subsidiary Guarantee or this Senior
Subordinated Note Indenture, except in accordance with the terms of this
Senior Subordinated Note Indenture.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Senior Subordinated Note
Indenture or the Senior Subordinated Notes shall be set forth in a amended or
supplemental Senior Subordinated Note Indenture that complies with the TIA as
then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Senior Subordinated Note is a continuing consent
by the Holder of a Senior Subordinated Note and every subsequent Holder of a
Senior Subordinated Note or portion of a Senior Subordinated Note that evidences
the same debt as the consenting Holder's Senior Subordinated Note, even if
notation of the consent is not made on any Senior Subordinated Note. However,
any such Holder of a Senior Subordinated Note or subsequent Holder of a Senior
Subordinated Note may revoke the consent as to its Senior Subordinated Note if
the Senior Subordinated Note 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 9.05. NOTATION ON OR EXCHANGE OF SENIOR SUBORDINATED NOTES.
The Senior Subordinated Note Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Senior Subordinated
Note thereafter authenticated. The Company in exchange for all Senior
Subordinated Notes may issue and the Senior Subordinated Note Trustee shall,
upon receipt of an Authentication Order, authenticate new Senior Subordinated
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior
Subordinated Note shall not affect the validity and effect of such amendment,
supplement or waiver.
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Section 9.06. SENIOR SUBORDINATED NOTE TRUSTEE TO SIGN AMENDMENTS, ETC.
The Senior Subordinated Note Trustee shall sign any amended or
supplemental Senior Subordinated Note Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Senior Subordinated Note Trustee. The
Company may not sign an amendment or supplemental Senior Subordinated Note
Indenture until the Board of Directors approves it. In executing any amended or
supplemental Senior Subordinated Note Indenture, the Senior Subordinated Note
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 12.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental Senior Subordinated Note
Indenture is authorized or permitted by this Senior Subordinated Note Indenture.
ARTICLE 10.
SUBORDINATION
Section 10.01. AGREEMENT TO SUBORDINATE.
The Company and the Senior Subordinated Note Guarantors agree,
and each Holder by accepting a Senior Subordinated Note agrees, that the
Indebtedness evidenced by the Senior Subordinated Notes is subordinated in right
of payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full in cash of all Senior Debt (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
Section 10.02. CERTAIN DEFINITIONS.
"Designated Senior Debt" means (i) any Indebtedness of the
Company or any of its Restricted Subsidiaries outstanding under Credit
Facilities, (ii) any Indebtedness outstanding under the Senior Note Indenture
and (iii) any other Senior Debt permitted under this Senior Subordinated Note
Indenture the principal amount of which is $25.0 million or more and that has
been designated by the Company as "Designated Senior Debt."
"Permitted Junior Securities" means Equity Interests in the
Company or any Senior Subordinated Note Guarantor or debt securities that are
subordinated to all Senior Debt (and any debt securities issued in exchange for
Senior Debt) to substantially the same extent as, or to a greater extent than,
the Senior Subordinated Notes and the Subordinated Subsidiary Guarantees are
subordinated to Senior Debt pursuant to Article 10 of this Senior Subordinated
Note Indenture.
"Representative" means the Senior Subordinated Note Trustee or
other trustee, agent or representative for any Senior Debt.
"Senior Debt" means (i) all Indebtedness of the Company or any of
its Restricted Subsidiaries outstanding under Credit Facilities and all Hedging
Obligations with respect thereto, (ii) any other Indebtedness permitted to be
incurred by the Company or any of its Restricted Subsidiaries under the terms of
this Senior Subordinated Note Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Senior Subordinated Notes or any
Guarantee of the Senior Subordinated Notes and (iii) all Obligations with
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respect to the foregoing. Notwithstanding anything to the contrary in the
foregoing, Senior Debt will not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company or any Subsidiary, (x) any
Indebtedness of the Company or any Subsidiary to any Subsidiaries of the Company
or to the Company, (y) any trade payables or (z) any Indebtedness that is
incurred in violation of this Senior Subordinated Note Indenture.
A distribution may consist of cash, securities or other property,
by set-off or otherwise.
Section 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment
in full in cash of all Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at the rate specified in
the agreement or instrument governing the applicable Senior Debt, whether or not
an allowable claim in such proceeding) before Holders of the Senior Subordinated
Notes shall be entitled to receive any payment with respect to the Senior
Subordinated Notes (except that Holders may receive and retain (i) Permitted
Junior Securities and (ii) payments and other distributions made from any
defeasance trust created pursuant to Section 8.01 hereof); and
(2) until all Obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full in cash, any distribution to
which Holders would be entitled but for this Article 10 shall be made to holders
of Senior Debt (except that Holders of Senior Subordinated Notes may receive (i)
Permitted Junior Securities and (ii) payments and other distributions made from
any defeasance trust created pursuant to Section 8.01 hereof), as their
interests may appear.
Section 10.04. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any payment or distribution to the
Senior Subordinated Note Trustee or any Holder in respect of Obligations upon or
in respect of the Senior Subordinated Notes and may not acquire from the Senior
Subordinated Note Trustee or any Holder any Senior Subordinated Notes for cash
or property (other than (i) in Permitted Junior Securities and (ii) from
payments and other distributions made from any defeasance trust created pursuant
to Section 8.01 hereof) until all principal and other Obligations with respect
to the Senior Debt have been paid in full in cash if:
(i) a default in the payment of any principal or other
Obligations with respect to Designated Senior Debt occurs and is
continuing; or
(ii) any other default occurs and is continuing with respect to
Designated Senior Debt that permits holders of the Designated Senior Debt
as to which such default relates to accelerate its maturity (or that would
permit such holders to accelerate with the giving of notice or the passage
of time or both) and the Senior Subordinated Note Trustee receives a notice
of the default (a "Payment Blockage Notice") from a Person who may give it
pursuant to Section 10.12 hereof. If the Senior Subordinated Note Trustee
receives any such Payment Blockage Notice, no subsequent Payment Blockage
Notice shall be effective for purposes of this Section unless and
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until (i) at least 360 days shall have elapsed since the effectiveness of
the immediately prior Payment Blockage Notice and (ii) all scheduled
payments of principal, premium, if any, and interest and Liquidated
Damages, if any, on the Senior Subordinated Notes that have come due have
been paid in full in cash. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Senior Subordinated Note Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been
waived for a period of not less than 90 days.
The Company may and shall resume payments on and distributions in
respect of the Senior Subordinated Notes and may acquire them upon the earlier
of:
(1) the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 10.04(ii)
hereof, 179 days after the date on which the applicable Payment Blockage Notice
is received, unless the maturity of any Designated Senior Debt has been
accelerated,
if this Article 10 otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.05. ACCELERATION OF SENIOR SUBORDINATED NOTES.
If payment of the Senior Subordinated Notes is accelerated
because of an Event of Default, the Company shall promptly notify holders of
Senior Debt of such acceleration.
Section 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Senior Subordinated Note Trustee or any
Holder receives any payment of any Obligations with respect to the Senior
Subordinated Notes at a time when the Senior Subordinated Note Trustee or such
Holder, as applicable, has actual knowledge that such payment is prohibited by
Article 10 hereof, such payment shall be held by the Senior Subordinated Note
Trustee or such Holder, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the Senior Subordinated
Note Indenture or other agreement (if any) pursuant to which Senior Debt may
have been issued, as their respective interests may appear, for application to
the payment of all Obligations with respect to Senior Debt remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
With respect to the holders of Senior Debt, the Senior
Subordinated Note Trustee undertakes to perform only such obligations on the
part of the Senior Subordinated Note Trustee as are specifically set forth in
this Article 10, and no implied covenants or obligations with respect to the
holders of Senior Debt shall be read into this Senior Subordinated Note
Indenture against the Senior Subordinated Note Trustee. The Senior Subordinated
Note Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt, and shall not be liable to any such holders if the Senior
Subordinated Note Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 10, except if such
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payment is made as a result of the willful misconduct or gross negligence of the
Senior Subordinated Note Trustee.
Section 10.07. NOTICE BY COMPANY.
The Company shall promptly notify the Senior Subordinated Note
Trustee and the Paying Agent of any facts known to the Company that would cause
a payment of any Obligations with respect to the Senior Subordinated Notes to
violate this Article 10, but failure to give such notice shall not affect the
subordination of the Senior Subordinated Notes to the Senior Debt as provided in
this Article 10.
Section 10.08. SUBROGATION.
After all Senior Debt is paid in full in cash and until the
Senior Subordinated Notes are paid in full, Holders of Senior Subordinated Notes
shall be subrogated (equally and ratably with all other Indebtedness pari passu
with the Senior Subordinated Notes) to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders of Senior Subordinated Notes have been applied
to the payment of Senior Debt. A distribution made under this Article 10 to
holders of Senior Debt that otherwise would have been made to Holders of Senior
Subordinated Notes is not, as between the Company and Holders, a payment by the
Company on the Senior Subordinated Notes.
Section 10.09. RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders of Senior
Subordinated Notes and holders of Senior Debt. Nothing in this Senior
Subordinated Note Indenture shall:
(1) impair, as between the Company and Holders of Senior
Subordinated Notes, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Senior Subordinated Notes
in accordance with their terms;
(2) affect the relative rights of Holders of Senior Subordinated
Notes and creditors of the Company other than their rights in relation to
holders of Senior Debt; or
(3) prevent the Senior Subordinated Note Trustee or any Holder of
Senior Subordinated Notes from exercising its available remedies upon a Default
or Event of Default, subject to (i) the rights of holders and owners of Senior
Debt to receive distributions and payments otherwise payable to Holders of
Senior Subordinated Notes and (ii) the notice provisions of Section 6.02 hereof.
If the Company fails because of this Article 10 to pay principal
of or interest on a Senior Subordinated Note on the due date, the failure is
still a Default or Event of Default.
Section 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Senior Subordinated Notes
shall be impaired by any act or failure to act by the Company or any Holder or
by the failure of the Company or any Holder to comply with this Senior
Subordinated Note Indenture.
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Section 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Senior Subordinated Note Trustee and the
Holders of Senior Subordinated Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon any certificate of
such Representative or of the liquidating Senior Subordinated Note Trustee or
agent or other Person making any distribution to the Senior Subordinated Note
Trustee or to the Holders of Senior Subordinated Notes for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10.
Section 10.12. RIGHTS OF SENIOR SUBORDINATED NOTE TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Senior Subordinated Note Indenture, the Senior Subordinated
Note Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment or distribution by the Senior
Subordinated Note Trustee, and the Senior Subordinated Note Trustee and the
Paying Agent may continue to make payments on the Senior Subordinated Notes,
unless the Senior Subordinated Note Trustee shall have received at its Corporate
Trust Office at least five Business Days prior to the date of such payment
written notice of facts that would cause the payment of any Obligations with
respect to the Senior Subordinated Notes to violate this Article 10. Only the
Company or a Representative may give the notice. Nothing in this Article 10
shall impair the claims of, or payments to, the Senior Subordinated Note Trustee
under or pursuant to Section 7.07 hereof.
The Senior Subordinated Note Trustee in its individual or any
other capacity may hold Senior Debt with the same rights it would have if it
were not Senior Subordinated Note Trustee. Any Agent may do the same with like
rights.
Section 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Senior Subordinated Notes, by the Holder's
acceptance thereof, authorizes and directs the Senior Subordinated Note Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article 10, and appoints the
Senior Subordinated Note Trustee to act as such Holder's attorney-in-fact for
any and all such purposes. If the Senior Subordinated Note Trustee does not file
a proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, the credit agents are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Senior Subordinated
Notes.
Section 10.14. AMENDMENTS.
The provisions of this Article 10 shall not be amended or
modified without the written consent of the holders of all Senior Debt.
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ARTICLE 11.
SUBORDINATED SUBSIDIARY GUARANTEES
Section 11.01. GUARANTEE.
Subject to this Article 11, each of the Senior Subordinated Note
Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Senior Subordinated Note authenticated and delivered by the Senior
Subordinated Note Trustee and to the Senior Subordinated Note Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Senior Subordinated Note Indenture, the Senior Subordinated Notes or the
obligations of the Company hereunder or thereunder, that: (a) the principal of
and interest on the Senior Subordinated 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 Senior Subordinated Notes, if
any, if lawful, and all other obligations of the Company to the Holders or the
Senior Subordinated Note 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 Senior
Subordinated 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 Senior Subordinated Note Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Senior Subordinated
Note Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Senior Subordinated Note Guarantors hereby agree that their
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Senior Subordinated Notes or this Senior
Subordinated Note Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Senior Subordinated 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 Senior
Subordinated Note Guarantor. Each Senior Subordinated Note Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Subordinated Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Senior
Subordinated Notes and this Senior Subordinated Note Indenture.
If any Holder or the Senior Subordinated Note Trustee is required
by any court or otherwise to return to the Company, the Senior Subordinated Note
Guarantors or any custodian, Senior Subordinated Note Trustee, liquidator or
other similar official acting in relation to either the Company or the Senior
Subordinated Note Guarantors, any amount paid by either to the Senior
Subordinated Note Trustee or such Holder, this Subordinated Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Senior Subordinated Note 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 Senior Subordinated Note Guarantor further agrees that,
as between the Senior Subordinated Note Guarantors, on the one hand, and the
Holders and the Senior Subordinated Note Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article 6 hereof for the purposes of this Subordinated Subsidiary Guarantee,
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notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Senior Subordinated Note Guarantors for
the purpose of this Subordinated Subsidiary Guarantee. The Senior Subordinated
Note Guarantors shall have the right to seek contribution from any non-paying
Senior Subordinated Note Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Subordinated Subsidiary
Guarantee.
Section 11.02. Subordination of Subordinated Subsidiary Guarantee.
The Obligations of each Senior Subordinated Note Guarantor under
its Subordinated Subsidiary Guarantee pursuant to this Article 11 shall be
junior and subordinated to the Senior Debt of such Senior Subordinated Note
Guarantor on the same basis as the Senior Subordinated Notes are junior and
subordinated to Senior Debt of the Company. For the purposes of the foregoing
sentence, the Senior Subordinated Note Trustee and the Holders shall have the
right to receive and/or retain payments by any of the Senior Subordinated Note
Guarantors only at such times as they may receive and/or retain payments in
respect of the Senior Subordinated Notes pursuant to this Senior Subordinated
Note Indenture, including Article 11 hereof.
Section 11.03. Limitation on Senior Subordinated Note Guarantor Liability.
Each Senior Subordinated Note Guarantor, and by its acceptance
of Senior Subordinated Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Subordinated Subsidiary Guarantee of such
Senior Subordinated Note 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 Subordinated Subsidiary Guarantee. To effectuate
the foregoing intention, the Senior Subordinated Note Trustee, the Holders and
the Senior Subordinated Note Guarantors hereby irrevocably agree that the
obligations of such Senior Subordinated Note Guarantor under its Subordinated
Subsidiary Guarantee and this Article 11 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 Senior Subordinated Note 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 Senior
Subordinated Note Guarantor in respect of the obligations of such other Senior
Subordinated Note Guarantor under this Article 11, result in the obligations of
such Senior Subordinated Note Guarantor under its Subordinated Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance.
Section 11.04. Execution and Delivery of Subordinated Subsidiary Guarantee.
To evidence its Subordinated Subsidiary Guarantee set forth in
Section 11.01, each Senior Subordinated Note Guarantor hereby agrees that a
notation of such Subordinated Subsidiary Guarantee substantially in the form
included in Exhibit E shall be endorsed by an Officer of such Senior
Subordinated Note Guarantor on each Senior Subordinated Note authenticated and
delivered by the Senior Subordinated Note Trustee and that this Senior
Subordinated Note Indenture shall be executed on behalf of such Senior
Subordinated Note Guarantor by its President or one of its Vice Presidents.
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Each Senior Subordinated Note Guarantor hereby agrees that its
Subordinated Subsidiary Guarantee set forth in Section 11.01 shall remain in
full force and effect notwithstanding any failure to endorse on each Senior
Subordinated Note a notation of such Subordinated Subsidiary Guarantee.
If an Officer whose signature is on this Senior Subordinated Note
Indenture or on the Subordinated Subsidiary Guarantee no longer holds that
office at the time the Senior Subordinated Note Trustee authenticates the Senior
Subordinated Note on which a Subordinated Subsidiary Guarantee is endorsed, the
Subordinated Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Senior Subordinated Note by the Senior
Subordinated Note Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subordinated Subsidiary Guarantee set forth in
this Senior Subordinated Note Indenture on behalf of the Senior Subordinated
Note Guarantors.
In the event that the Company creates or acquires any new Subsidiaries
subsequent to the date of this Senior Subordinated Note Indenture, if required
by Section 4.17 hereof, the Company shall cause such Subsidiaries to execute
supplemental Senior Subordinated Note Indentures to this Senior Subordinated
Note Indenture and Subordinated Subsidiary Guarantees in accordance with Section
4.17 hereof and this Article 11, to the extent applicable.
Section 11.05. Senior Subordinated Note Guarantors May Consolidate, etc., on
Certain Terms.
No Senior Subordinated Note Guarantor may consolidate with or merge
with or into (whether or not such Senior Subordinated Note Guarantor is the
surviving Person) another Person whether or not affiliated with such Senior
Subordinated Note Guarantor unless:
(a) subject to Section 11.05 hereof, the Person formed by or surviving
any such consolidation or merger (if other than a Senior Subordinated Note
Guarantor or the Company) unconditionally assumes all the obligations of such
Senior Subordinated Note Guarantor, pursuant to a supplemental Senior
Subordinated Note Indenture in form and substance reasonably satisfactory to the
Senior Subordinated Note Trustee, under the Senior Subordinated Notes, this
Senior Subordinated Note Indenture, the Registration Rights Agreement and the
Subordinated Subsidiary Guarantee on the terms set forth herein or therein;
(b) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(c) the Company would be permitted, immediately after giving effect to
such transaction, to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental Senior Subordinated Note
Indenture, executed and delivered to the Senior Subordinated Note Trustee and
satisfactory in form to the Senior Subordinated Note Trustee, of the
Subordinated Subsidiary Guarantee endorsed upon the Senior Subordinated Notes
and the due and punctual performance of all of the covenants and conditions of
this Senior Subordinated Note Indenture to be performed by the Senior
Subordinated Note Guarantor, such successor Person shall succeed to and be
substituted for the Senior Subordinated Note Guarantor with the same effect as
if it had been named
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herein as a Senior Subordinated Note Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Subordinated Subsidiary Guarantees to
be endorsed upon all of the Senior Subordinated Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Senior Subordinated Note Trustee. All the Subordinated Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Senior Subordinated Note Indenture as the Subordinated Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of this Senior
Subordinated Note Indenture as though all of such Subordinated Subsidiary
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Senior Subordinated Note
Indenture or in any of the Senior Subordinated Notes shall prevent any
consolidation or merger of a Senior Subordinated Note Guarantor with or into the
Company or another Senior Subordinated Note Guarantor, or shall prevent any sale
or conveyance of the property of a Senior Subordinated Note Guarantor as an
entirety or substantially as an entirety to the Company or another Senior
Subordinated Note Guarantor.
Section 11.06. Releases Following Sale of Assets.
In the event of (a) a sale or other disposition of all of the assets
of any Senior Subordinated Note Guarantor, by way of merger, consolidation or
otherwise, (b) a sale or other disposition of all of the capital stock of any
Senior Subordinated Note Guarantor or (c) the designation of a Senior
Subordinated Note Guarantor as an Unrestricted Subsidiary in accordance with the
terms of the Senior subordinated Note Indenture, then such Senior Subordinated
Note Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Senior
Subordinated Note Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets
of such Senior Subordinated Note Guarantor) will be released and relieved of any
obligations under its Subordinated Subsidiary Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Senior Subordinated Note Indenture, including
without limitation Section 4.10 hereof. Upon delivery by the Company to the
Senior Subordinated Note Trustee of an Officer's Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by the
Company in accordance with the applicable provisions of this Senior Subordinated
Note Indenture, including without limitation Section 4.10 hereof, the Senior
Subordinated Note Trustee shall execute any documents reasonably required in
order to evidence the release of any Senior Subordinated Note Guarantor from its
obligations under its Subordinated Subsidiary Guarantee.
Any Senior Subordinated Note Guarantor not released from its
obligations under its Subordinated Subsidiary Guarantee shall remain liable for
the full amount of principal of and interest on the Senior Subordinated Notes
and for the other obligations of any Senior Subordinated Note Guarantor under
this Senior Subordinated Note Indenture as provided in this Article 11.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Senior Subordinated Note Indenture limits,
qualifies or conflicts with the duties imposed by TIA (S) 318(c), the imposed
duties shall control.
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Section 12.02. Notices.
Any notice or communication by the Company, any Senior Subordinated
Note Guarantor or the Senior Subordinated Note Trustee to the others is duly
given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address.
If to the Company and/or any Senior Subordinated Note Guarantor:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Telecopier No.: (314) 342-3419
Attention: Chief Legal Officer
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Telecopier No. (212) 455-2502
Attention: Rise Norman
If to the Senior Subordinated Note Trustee:
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut 06103
Telecopier No.: (860) 244-1897
Attention: Philip Kane
The Company, any Senior Subordinated Note Guarantor or the Senior
Subordinated Note Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA (S) 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
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If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Senior Subordinated Note Trustee and each Agent at the
same time.
Section 12.03. Communication by Holders of Senior Subordinated Notes with Other
Holders of Senior Subordinated Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other
Holders with respect to their rights under this Senior Subordinated Note
Indenture or the Senior Subordinated Notes. The Company, the Senior Subordinated
Note Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Senior
Subordinated Note Trustee to take any action under this Senior Subordinated Note
Indenture, the Company shall furnish to the Senior Subordinated Note Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Senior Subordinated Note Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided for in
this Senior Subordinated Note Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Senior Subordinated Note Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Senior Subordinated Note Indenture
(other than a certificate provided pursuant to TIA (S) 314(a)(4)) shall comply
with the provisions of TIA (S) 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
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Section 12.06. Rules by Senior Subordinated Note Trustee and Agents.
The Senior Subordinated Note Trustee may make reasonable rules
for action by or at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Senior Subordinated Note
Guarantor, as such, shall have any liability for any obligations of the Company
or such Senior Subordinated Note Guarantor under the Senior Subordinated Notes,
the Subordinated Subsidiary Guarantees, this Senior Subordinated Note Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Senior Subordinated Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Subordinated Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SENIOR SUBORDINATED NOTE INDENTURE, THE SENIOR
SUBORDINATED NOTES AND THE SUBORDINATED SUBSIDIARY GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Senior Subordinated Note Indenture may not be used to
interpret any other Senior Subordinated Note Indenture, loan or debt agreement
of the Company or its Subsidiaries or of any other Person. Any such Senior
Subordinated Note Indenture, loan or debt agreement may not be used to interpret
this Senior Subordinated Note Indenture.
Section 12.10. Successors.
All agreements of the Company in this Senior Subordinated Note
Indenture and the Senior Subordinated Notes shall bind its successors. All
agreements of the Senior Subordinated Note Trustee in this Senior Subordinated
Note Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Senior Subordinated Note Indenture
or in the Senior Subordinated Notes shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this Senior
Subordinated Note Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
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Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Senior Subordinated Note Indenture have been
inserted for convenience of reference only, are not to be considered a part of
this Senior Subordinated Note Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of May 18, 1998
P&L Coal Holdings Corporation
By:/s/ Felix Herlihy
____________________________
Name: Felix Herlihy
Title: Vice President, Treasurer and
Assistant Secretary
State Street Bank and Trust Company
By:/s/ Philip G. Kane, Jr.
____________________________
Name: Philip G. Kane, Jr.
Title: Vice President
<PAGE>
EXHIBIT A1
(Face of Senior Subordinated Note)
================================================================================
[Insert the Global Senior Subordinated Note Legend, if applicable pursuant to
the provisions of the Senior Subordinated Note Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Senior Subordinated Note Indenture]
CUSIP/CINS
9-5/8% [Series A] [Series B] Senior Subordinated Notes due 2008
No. $
--------- -----------
P&L Coal Holdings Corporation
promises to pay to ____________ or registered assigns, the principal sum of
________________________ Dollars on ________ __,2008.
Interest Payment Dates: ________ __, and ________ __
Record Dates: ________ __ and ________ __
Dated: ________ __, 1998
P&L Coal Holdings Corporation
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
This is one of the [Global]
Senior Subordinated Notes referred to in the
within-mentioned Senior Subordinated Note Indenture:
State Street Bank and Trust Company,
as Senior Subordinated Note Trustee
By:
------------------------------------
================================================================================
A1-1
<PAGE>
(Back of Senior Subordinated Note)
9-5/8% [Series A] [Series B] Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Senior Subordinated Note Indenture referred to below unless otherwise
indicated.
1. INTEREST. P&L Coal Holdings Corporation, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Senior
Subordinated Note at 9-5/8% per annum from May 18, 1998 until maturity and shall
pay the Liquidated Damages payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and
Liquidated Damages semi-annually on May 15 and November 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 Senior Subordinated Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Senior Subordinated 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 November 15, 1998. 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 and Liquidated Damages (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 of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages to the
Persons who are registered Holders of Senior Subordinated Notes at the close of
business on the May 1 or November 1 next preceding the Interest Payment Date,
even if such Senior Subordinated Notes are canceled after such record date and
on or before such Interest Payment Date, except as provided in Section 2.12 of
the Senior Subordinated Note Indenture with respect to defaulted interest. The
Senior Subordinated Notes will be payable as to principal, premium and
Liquidated Damages, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Liquidated Damages may
be made 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 and interest,
premium and Liquidated Damages on, all Global Senior Subordinated Notes and all
other Senior Subordinated Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. 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, State Street Bank and
Trust Company, the Senior Subordinated Note Trustee under the Senior
Subordinated Note Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. SENIOR SUBORDINATED NOTE INDENTURE. The Company issued the Senior
Subordinated Notes under an Senior Subordinated Note Indenture dated as of May
18, 1998 ("Senior Subordinated Note Indenture") between the Company and the
Senior Subordinated Note Trustee. The
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<PAGE>
terms of the Senior Subordinated Notes include those stated in the Senior
Subordinated Note Indenture and those made part of the Senior Subordinated Note
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code (S)(S) 77aaa-77bbbb). The Senior Subordinated Notes are subject to all
such terms, and Holders are referred to the Senior Subordinated Note Indenture
and such Act for a statement of such terms. To the extent any provision of this
Senior Subordinated Note conflicts with the express provisions of the Senior
Subordinated Note Indenture, the provisions of the Senior Subordinated Note
Indenture shall govern and be controlling. The Senior Subordinated Notes are
obligations of the Company limited to $650.0 million in aggregate principal
amount.
5. OPTIONAL REDEMPTION.
(a) The Senior Subordinated Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice.
(b) Prior to May 15, 2003, the Senior Subordinated Notes will be
redeemable at a redemption price equal to 100% of the principal amount thereof
plus the applicable Senior Subordinated Notes Make Whole Premium, plus, to the
extent not included in the Senior Subordinated Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Subordinated Notes Make Whole Premium"
means, with respect to a Senior Subordinated Note, an amount equal to the
greater of (a) 104.813% of the outstanding principal amount of such Senior
Subordinated Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior
Subordinated Note as if such Senior Subordinated Note were redeemed on May 15,
2003, computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (2) the outstanding principal amount of such Senior Subordinated
Note.
(c) On or after May 15, 2003, the Senior Subordinated Notes are
redeemable at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2003........................ 104.813%
2004........................ 103.208%
2005........................ 101.604%
2006 and thereafter......... 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of this
Paragraph 5, during the first 36 months after the date of the closing of the
Acquisition, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture at a redemption price of 109.625% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the redemption date, with the net cash proceeds of
one or more Equity Offerings; provided that at least 65% of the aggregate
principal amount of Senior Subordinated Notes issued remain outstanding
immediately after the occurrence of such redemption (excluding Senior
Subordinated Notes held by the Company and its Subsidiaries); and provided,
further, that such redemption shall occur within 120 days of the date of the
closing of such Equity Offering.
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<PAGE>
(e) Any redemption pursuant to this Paragraph 5 shall be made pursuant
to the provisions of Article 3 of the Senior Subordinated Note Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Senior
Subordinated Notes.
7. SPECIAL MANDATORY REDEMPTION.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Subordinated Notes
at a redemption price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of redemption.
8. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Senior Subordinated
Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase (the "Change of Control Payment"). Within 10 days
following any Change of Control, the Company shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Senior Subordinated Note Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales, within
five days of each date on which the aggregate amount of Excess Proceeds exceeds
$15.0 million, the Company shall commence an offer to all Holders of Senior
Subordinated Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the
Senior Subordinated Note Indenture to purchase the maximum principal amount of
Senior Subordinated Notes (including any Additional Senior Subordinated Notes)
that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the Senior
Subordinated Note Indenture. To the extent that the aggregate amount of Senior
Subordinated Notes (including any Additional Senior Subordinated Notes) tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
(or such Subsidiary) may use such deficiency for general corporate purposes. If
the aggregate principal amount of Senior Subordinated Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Senior Subordinated
Note Trustee shall select the Senior Subordinated Notes to be purchased on a pro
rata basis. Holders of Senior Subordinated Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to any
related purchase date and may elect to have such Senior Subordinated Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Senior Subordinated Notes.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its registered
address. Senior Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Senior
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<PAGE>
Subordinated Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Senior Subordinated Notes or
portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Subordinated Notes may be
registered and Senior Subordinated Notes may be exchanged as provided in the
Senior Subordinated Note Indenture. The Registrar and the Senior Subordinated
Note Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Senior Subordinated Note
Indenture. The Company need not exchange or register the transfer of any Senior
Subordinated Note or portion of a Senior Subordinated Note selected for
redemption, except for the unredeemed portion of any Senior Subordinated Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Senior Subordinated Notes for a period of 15 days before a
selection of Senior Subordinated Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior
Subordinated Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Senior Subordinated Note Indenture, the Subordinated Subsidiary Guarantees
or the Senior Subordinated Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Senior Subordinated Notes and Additional Senior Subordinated Notes,
if any, voting as a single class, and any existing default or compliance with
any provision of the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes and Additional Senior Subordinated Notes, if any,
voting as a single class. Without the consent of any Holder of a Senior
Subordinated Note, the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Senior Subordinated Notes in addition to or in place of
certificated Senior Subordinated Notes, to provide for the assumption of the
Company's or Senior Subordinated Note Guarantor's obligations to Holders of the
Senior Subordinated 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 Senior Subordinated Notes or that does not adversely affect the legal rights
under the Senior Subordinated Note Indenture of any such Holder, to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Senior Subordinated Note Indenture under the Trust Indenture Act, to provide
for the Issuance of Additional Senior Subordinated Notes in accordance with the
limitations set forth in the Senior Subordinated Note Indenture, or to allow any
Senior Subordinated Note Guarantor to execute a supplemental Senior Subordinated
Note Indenture to the Senior Subordinated Note Indenture and/or a Subordinated
Subsidiary Guarantee with respect to the Senior Subordinated Notes. Without the
consent of at least 75% in principal amount of the Senior Subordinated Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange offer for, or purchase of, such Senior Subordinated Notes), no
waiver or amendment to the Senior Subordinated Note Indenture may make any
change in the provisions of Article 10 of the Senior Subordinated Note Indenture
that adversely affects the rights of any Holder of Senior Subordinated Notes.
13. DEFAULTS AND REMEDIES. An "Event of Default" occurs if: (i) the
Company defaults in the payment when due of interest on, or Liquidated Damages,
if any, with respect to, the Senior
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<PAGE>
Subordinated Notes and such default continues for a period of 30 days (whether
or not prohibited by the subordination provisions of Article 10 of the Senior
Subordinated Note Indenture); (ii) the Company defaults in the payment when due
of principal of or premium, if any, on the Senior Subordinated Notes when the
same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise (whether or not prohibited by
the subordination provisions of Article 10 of the Senior Subordinated Note
Indenture); (iii) the Company or any of its Subsidiaries fails to make the offer
required or to purchase any of the Senior Subordinated Notes as required by
Sections 4.10 and/or 4.15 of the Senior Subordinated Note Indenture; (iv) the
Company fails to comply for 30 days after notice to the Company by the Senior
Subordinated Note Trustee with any of the provisions of Sections 4.07 or 4.09 of
the Senior Subordinated Note Indenture; or the Company fails to observe or
perform any other covenant, representation, warranty or other agreement in the
Senior Subordinated Note Indenture or the Senior Subordinated Notes for 60 days
after notice to the Company by the Senior Subordinated Note Trustee or the
Holders of at least 25% in aggregate principal amount of the Senior Subordinated
Notes then outstanding voting as a single class; (v) 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 for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of the Senior
Subordinated Note 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 $50.0 million or more; (vi) a final
judgment or final judgments for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any of its that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary and such judgment or judgments
remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $50.0 million; (vii) certain events of bankruptcy
or insolvency occur with respect to 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; (viii) except as permitted
by the Senior Subordinated Note Indenture, any Subordinated 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 Senior Subordinated Note
Guarantor, or any Person acting on behalf of any Senior Subordinated Note
Guarantor, shall deny or disaffirm its obligations under such Senior
Subordinated Note Guarantor's Subordinated Subsidiary Guarantee; or (ix) the
Company fails to deposit the required amounts into the Escrow Account pursuant
to the Escrow Letter or any failure of the proceeds of the Escrow Account to be
applied as required under the Escrow Letter.
If any Event of Default occurs and is continuing, the Senior
Subordinated Note Trustee or the Holders of at least 25% in principal amount of
the then outstanding Senior Subordinated Notes may declare all the Senior
Subordinated Notes to be due and payable; provided, that so long as any
Designated Senior Debt is outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration under any Designated Senior Debt or
(ii) five Business Days after receipt by the Company and the Representative of
the Designated Senior Debt of written notice of such acceleration of the Senior
Subordinated Notes. Upon any such declaration, the Senior Subordinated Notes
shall become due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Senior Subordinated Notes will become due and
payable without further action or notice. Holders may not enforce the Senior
Subordinated Note Indenture or the Senior Subordinated Notes except as provided
in the Senior Subordinated Note Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Senior
A1-6
<PAGE>
Subordinated Notes may direct the Senior Subordinated Note Trustee in its
exercise of any trust or power. The Senior Subordinated Note Trustee may
withhold from Holders of the Senior Subordinated Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount
of the Senior Subordinated Notes then outstanding by notice to the Senior
Subordinated Note Trustee may on behalf of the Holders of all of the Senior
Subordinated Notes waive any existing Default or Event of Default and its
consequences under the Senior Subordinated Note Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Senior Subordinated Notes. The Company is required to deliver to the Senior
Subordinated Note Trustee annually a statement regarding compliance with the
Senior Subordinated Note Indenture, and the Company is required upon becoming
aware of any Default or Event of Default, to deliver to the Senior Subordinated
Note Trustee a statement specifying such Default or Event of Default.
14. SENIOR SUBORDINATED NOTE TRUSTEE DEALINGS WITH COMPANY. The
Senior Subordinated Note 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 Senior Subordinated Note Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Senior Subordinated Notes
or the Senior Subordinated Note Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Senior Subordinated Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Senior Subordinated Notes.
16. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Senior Subordinated Note
Trustee or an authenticating agent.
17. 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).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR
SUBORDINATED NOTES AND RESTRICTED DEFINITIVE SENIOR SUBORDINATED NOTES. In
addition to the rights provided to Holders of Senior Subordinated Notes under
the Senior Subordinated Note Indenture, Holders of Restricted Global Senior
Subordinated Notes and Restricted Definitive Senior Subordinated Notes shall
have all the rights set forth in the A/B Exchange Registration Rights Agreement
dated as of May 18, 1998, between the Company and the parties named on the
signature pages thereof or, in the case of Additional Senior Subordinated Notes,
Holders of Restricted Global Senior Subordinated Notes and Restricted Definitive
Senior Subordinated Notes shall have the rights set forth in one or more
registration rights agreements, if any, between the Company and the other
parties thereto, relating to rights given by the Company to the purchasers of
any Additional Senior Subordinated Notes (collectively, the "Registration Rights
Agreement").
19. 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 Senior Subordinated Notes and the Senior
Subordinated Note Trustee may use CUSIP numbers in
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<PAGE>
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Senior Subordinated
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 Senior Subordinated Note Indenture and/or the
Registration Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Attention: Chief Legal Officer
A1-8
<PAGE>
Assignment Form
To assign this Senior Subordinated Note, fill in the form below: (I) or (we)
assign and transfer this Senior Subordinated Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Senior Subordinated Note on the books of the Company. The
agent may substitute another to act for him.
- --------------------------------------------------------------------------------
Date:
----------- Your Signature:
-----------------------------------
______
(Sign exactly as your name appears on the face of this
Senior Subordinated 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.
A1-9
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Senior Subordinated Note purchased
by the Company pursuant to Section 4.10 or 4.15 of the Senior Subordinated Note
Indenture, check the box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Senior Subordinated Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Senior
Subordinated Note Indenture, state the amount you elect to have purchased:
$________
Date:
--------------
Your Signature:
----------------------------------
______
(Sign exactly as your name appears on the face of this
Senior Subordinated 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.
A1-10
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL SENIOR SUBORDINATED NOTE/1/
The following exchanges of a part of this Global Senior Subordinated
Note for an interest in another Global Senior Subordinated Note or for a
Definitive Senior Subordinated Note, or exchanges of a part of another Global
Senior Subordinated Note or Definitive Senior Subordinated Note for an interest
in this Global Senior Subordinated Note, have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase Senior authorized officer
Principal Amount in Principal Subordinated Note of Senior
of this Global Amount of this following such Subordinated
Senior Global Senior decrease (or Note Trustee or
Date of Exchange Subordinated Note Subordinated Note increase) Custodian
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
</TABLE>
- ------------------------
/1/ THIS SHOULD BE INCLUDED ONLY IF THE SENIOR SUBORDINATED NOTE IS ISSUED IN
GLOBAL FORM.
A1-11
<PAGE>
EXHIBIT A2
(Face of Regulation S Temporary Global Senior Subordinated Note)
================================================================================
EXHIBIT A2
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SENIOR
SUBORDINATED NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SENIOR SUBORDINATED NOTES, ARE AS SPECIFIED IN THE SENIOR
SUBORDINATED NOTE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SENIOR SUBORDINATED NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR
SUBORDINATED NOTES IN DEFINITIVE FORM, THIS SENIOR SUBORDINATED NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE 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.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
A2-1
<PAGE>
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE.
CUSIP/CINS
9-5/8% Series A Senior Subordinated Notes due 2008
No.____ $_______
P&L Coal Holdings Corporation
promises to pay to ____________ or registered assigns, the principal sum
of ________________________ Dollars on ________,2008.
Interest Payment Dates: ________ __, and ________ __
Record Dates: ________ __ and ________ __
Dated: ________ __, 1998
P&L Coal Holdings Corporation
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
This is one of the [Global]
Senior Subordinated Notes referred to in the
within-mentioned Senior Subordinated Note Indenture:
State Street Bank and Trust Company,
as Senior Subordinated Note Trustee
By:
----------------------------------
================================================================================
A2-2
<PAGE>
(Back of Regulation S Temporary Global Senior Subordinated Note)
9-5/8% Series A Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Senior Subordinated Note Indenture referred to below unless otherwise
indicated.
1. INTEREST. P&L Coal Holdings Corporation, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Senior
Subordinated Note at 9-5/8% per annum from May 18, 1998 until maturity and shall
pay the Liquidated Damages payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and
Liquidated Damages semi-annually on May 15 and November 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 Senior Subordinated Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Senior Subordinated 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 November 15, 1998. 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 and Liquidated Damages (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 of
twelve 30-day months.
Until this Regulation S Temporary Global Senior Subordinated Note is
exchanged for one or more Regulation S Permanent Global Senior Subordinated
Notes, the Holder hereof shall not be entitled to receive payments of interest
hereon; until so exchanged in full, this Regulation S Temporary Global Senior
Subordinated Note shall in all other respects be entitled to the same benefits
as other Senior Subordinated Notes under the Senior Subordinated Note Indenture.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages to the
Persons who are registered Holders of Senior Subordinated Notes at the close of
business on the May 1 or November 1 next preceding the Interest Payment Date,
even if such Senior Subordinated Notes are canceled after such record date and
on or before such Interest Payment Date, except as provided in Section 2.12 of
the Senior Subordinated Note Indenture with respect to defaulted interest. The
Senior Subordinated Notes will be payable as to principal, premium, interest and
Liquidated Damages at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of
the Company, payment of interest and Liquidated Damages may be made 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 and interest, premium and Liquidated
Damages on, all Global Senior Subordinated Notes and all other Senior
Subordinated Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. 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.
A2-3
<PAGE>
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and
Trust Company, the Senior Subordinated Note Trustee under the Senior
Subordinated Note Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. SENIOR SUBORDINATED NOTE INDENTURE. The Company issued the Senior
Subordinated Notes under an Senior Subordinated Note Indenture dated as of May
18, 1998 ("Senior Subordinated Note Indenture") between the Company and the
Senior Subordinated Note Trustee. The terms of the Senior Subordinated Notes
include those stated in the Senior Subordinated Note Indenture and those made
part of the Senior Subordinated Note Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Senior
Subordinated Notes are subject to all such terms, and Holders are referred to
the Senior Subordinated Note Indenture and such Act for a statement of such
terms. The Senior Subordinated Notes are secured obligations of the Company
limited to $650.0 million in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) The Senior Subordinated Notes will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice.
(b) Prior to May 15, 2003, the Senior Subordinated Notes will be
redeemable at a redemption price equal to 100% of the principal amount thereof
plus the applicable Senior Subordinated Notes Make Whole Premium, plus, to the
extent not included in the Senior Subordinated Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Subordinated Notes Make Whole Premium"
means, with respect to a Senior Subordinated Note, an amount equal to the
greater of (a) 104.813% of the outstanding principal amount of such Senior
Subordinated Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior
Subordinated Note as if such Senior Subordinated Note were redeemed on May 15,
2003, computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (2) the outstanding principal amount of such Senior Subordinated
Note.
(c) On or after May 15, 2003, the Senior Subordinated Notes are
redeemable at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2003.......................................... 104.813%
2004.......................................... 103.208%
2005.......................................... 101.604%
2006 and thereafter........................... 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of
this Paragraph 5, during the first 36 months after the date of the closing of
the Acquisition, the Company may on any one or more occasions redeem up to 35%
of the aggregate principal amount of Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture at a redemption price of 109.625% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the
A2-4
<PAGE>
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Senior
Subordinated Notes issued remain outstanding immediately after the occurrence of
such redemption (excluding Senior Subordinated Notes held by the Company and its
Subsidiaries); and provided, further, that such redemption shall occur within
120 days of the date of the closing of such Equity Offering.
(e) Any redemption pursuant to this Paragraph 5 shall be made
pursuant to the provisions of Article 3 of the Senior Subordinated Note
Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Senior
Subordinated Notes.
7. SPECIAL MANDATORY REDEMPTION.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Subordinated Notes
at a redemption price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of redemption.
8. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Senior Subordinated
Notes at a purchase price 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 10 days following any Change of Control,
the Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Senior Subordinated
Note Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company shall commence an offer to all Holders of
Senior Subordinated Notes (as "Asset Sale Offer") pursuant to Section 3.09 of
the Senior Subordinated Note Indenture to purchase the maximum principal amount
of Senior Subordinated Notes that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the Senior
Subordinated Note Indenture. To the extent that the aggregate amount of Senior
Subordinated Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company (or such Subsidiary) may use such deficiency for
general corporate purposes. If the aggregate principal amount of Senior
Subordinated Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Senior Subordinated Note Trustee shall select the Senior
Subordinated Notes to be purchased on a pro rata basis. Holders of Senior
Subordinated Notes that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have such Senior Subordinated Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Senior
Subordinated Notes.
A2-5
<PAGE>
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its registered
address. Senior Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Senior
Subordinated Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Senior Subordinated Notes or
portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Subordinated Notes may be
registered and Senior Subordinated Notes may be exchanged as provided in the
Senior Subordinated Note Indenture. The Registrar and the Senior Subordinated
Note Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Senior Subordinated Note
Indenture. The Company need not exchange or register the transfer of any Senior
Subordinated Note or portion of a Senior Subordinated Note selected for
redemption, except for the unredeemed portion of any Senior Subordinated Note
being redeemed in part. Also, it need not exchange or register the transfer of
any Senior Subordinated Notes for a period of 15 days before a selection of
Senior Subordinated Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
This Regulation S Temporary Global Senior Subordinated Note is
exchangeable in whole or in part for one or more Global Senior Subordinated
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Senior
Subordinated Note Indenture. Upon exchange of this Regulation S Temporary
Global Senior Subordinated Note for one or more Global Senior Subordinated
Notes, the Senior Subordinated Note Trustee shall cancel this Regulation S
Temporary Global Senior Subordinated Note.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior
Subordinated Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Senior Subordinated Note Indenture, the Subordinated Subsidiary Guarantees
or the Senior Subordinated Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Senior Subordinated Notes and Additional Senior Subordinated Notes,
if any, voting as a single class, and any existing default or compliance with
any provision of the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes and Additional Senior Subordinated Notes, if any,
voting as a single class. Without the consent of any Holder of a Senior
Subordinated Note, the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Senior Subordinated Notes in addition to or in place of
certificated Senior Subordinated Notes, to provide for the assumption of the
Company's or Senior Subordinated Note Guarantor's obligations to Holders of the
Senior Subordinated 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 Senior Subordinated Notes or that does not adversely affect the legal rights
under the Senior Subordinated Note Indenture of any such Holder, to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Senior Subordinated
A2-6
<PAGE>
Note Indenture under the Trust Indenture Act, to provide for the Issuance of
Additional Senior Subordinated Notes in accordance with the limitations set
forth in the Senior Subordinated Note Indenture, or to allow any Senior
Subordinated Note Guarantor to execute a supplemental Senior Subordinated Note
Indenture to the Senior Subordinated Note Indenture and/or a Subordinated
Subsidiary Guarantee with respect to the Senior Subordinated Notes. Without the
consent of at least 75% in principal amount of the Senior Subordinated Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange offer for, or purchase of, such Senior Subordinated Notes), no
waiver or amendment to the Senior Subordinated Note Indenture may make any
change in the provisions of Article 10 of the Senior Subordinated Note Indenture
that adversely affects the rights of any Holder of Senior Subordinated Notes.
13. DEFAULTS AND REMEDIES. An "Event of Default" occurs if: (i) the
Company defaults in the payment when due of interest on, or Liquidated Damages,
if any, with respect to, the Senior Subordinated Notes and such default
continues for a period of 30 days (whether or not prohibited by the
subordination provisions of Article 10 of the Senior Subordinated Note
Indenture); (ii) the Company defaults in the payment when due of principal of or
premium, if any, on the Senior Subordinated Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise (whether or not prohibited by the subordination
provisions of Article 10 of the Senior Subordinated Note Indenture); (iii) the
Company or any of its Subsidiaries fails to make the offer required or to
purchase any of the Senior Subordinated Notes as required by Sections 4.10
and/or 4.15 of the Senior Subordinated Note Indenture; (iv) the Company fails to
comply for 30 days after notice to the Company by the Senior Subordinated Note
Trustee with any of the provisions of Sections 4.07 or 4.09 of the Senior
Subordinated Note Indenture; or the Company fails to observe or perform any
other covenant, representation, warranty or other agreement in the Senior
Subordinated Note Indenture or the Senior Subordinated Notes for 60 days after
notice to the Company by the Senior Subordinated Note Trustee or the Holders of
at least 25% in aggregate principal amount of the Senior Subordinated Notes then
outstanding voting as a single class; (v) 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 for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists, or is created after the date of the Senior Subordinated
Note 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 $50.0 million or more; (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any of its that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary and such judgment or judgments remain undischarged for
a period (during which execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such undischarged judgments exceeds $50.0
million; (vii) certain events of bankruptcy or insolvency occur with respect to
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; (viii) except as permitted by the Senior Subordinated Note
Indenture, any Subordinated 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 Senior Subordinated Note Guarantor, or any Person
acting on behalf of any Senior Subordinated Note Guarantor, shall deny or
disaffirm its obligations under such Senior Subordinated Note Guarantor's
Subordinated Subsidiary Guarantee; or (ix) the Company fails to deposit the
required amounts into the Escrow Account pursuant to the Escrow Letter or any
failure of the proceeds of the Escrow Account to be applied as required under
the Escrow Letter.
A2-7
<PAGE>
If any Event of Default occurs and is continuing, the Senior
Subordinated Note Trustee or the Holders of at least 25% in principal amount of
the then outstanding Senior Subordinated Notes may declare all the Senior
Subordinated Notes to be due and payable; provided, that so long as any
Designated Senior Debt is outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration under any Designated Senior Debt or
(ii) five Business Days after receipt by the Company and the Representative of
the Designated Senior Debt of written notice of such acceleration of the Senior
Subordinated Notes. Upon any such declaration, the Senior Subordinated Notes
shall become due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Senior Subordinated Notes will become due and
payable without further action or notice. Holders may not enforce the Senior
Subordinated Note Indenture or the Senior Subordinated Notes except as provided
in the Senior Subordinated Note Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Senior
Subordinated Notes may direct the Senior Subordinated Note Trustee in its
exercise of any trust or power. The Senior Subordinated Note Trustee may
withhold from Holders of the Senior Subordinated Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount of
the Senior Subordinated Notes then outstanding by notice to the Senior
Subordinated Note Trustee may on behalf of the Holders of all of the Senior
Subordinated Notes waive any existing Default or Event of Default and its
consequences under the Senior Subordinated Note Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Senior Subordinated Notes. The Company is required to deliver to the Senior
Subordinated Note Trustee annually a statement regarding compliance with the
Senior Subordinated Note Indenture, and the Company is required upon becoming
aware of any Default or Event of Default, to deliver to the Senior Subordinated
Note Trustee a statement specifying such Default or Event of Default.
14. SENIOR SUBORDINATED NOTE TRUSTEE DEALINGS WITH COMPANY. The
Senior Subordinated Note 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 Senior Subordinated Note Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or any of the Senior Subordinated
Note Guarantors, as such, shall not have any liability for any obligations of
the Company or such Senior Subordinated Note Guarantor under the Senior
Subordinated Notes, the Subordinated Subsidiary Guarantees or the Senior
Subordinated Note Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Senior
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Senior Subordinated Notes.
16. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Senior Subordinated Note
Trustee or an authenticating agent.
17. 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).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR
SUBORDINATED NOTES AND RESTRICTED DEFINITIVE SENIOR SUBORDINATED NOTES. In
addition to the rights provided to
A2-8
<PAGE>
Holders of Senior Subordinated Notes under the Senior Subordinated Note
Indenture, Holders of Restricted Global Senior Subordinated Notes and Restricted
Definitive Senior Subordinated Notes shall have all the rights set forth in the
A/B Exchange Registration Rights Agreement dated as of May 18, 1998, between the
Company and the parties named on the signature pages thereof or, in the case of
Additional Senior Subordinated Notes, Holders of Restricted Global Senior
Subordinated Notes and Restricted Definitive Senior Subordinated Notes shall
have the rights set forth in one or more registration rights agreements, if any,
between the Company and the other parties thereto, relating to rights given by
the Company to the purchasers of any Additional Senior Subordinated Notes
(collectively, the "Registration Rights Agreement").
19. 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 Senior Subordinated Notes and the Senior
Subordinated Note 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 Senior Subordinated Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
A2-9
<PAGE>
The Company will furnish to any Holder upon written request and
without charge a copy of the Senior Subordinated Note Indenture and/or the
Registration Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Attention: Chief Legal Officer
A2-10
<PAGE>
Assignment Form
To assign this Senior Subordinated Note, fill in the form below: (I) or (we)
assign and transfer this Senior Subordinated Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________________________________________
________________
to transfer this Senior Subordinated Note on the books of the Company. The agent
may substitute another to act for him.
- --------------------------------------------------------------------------------
Date:
------------
Your Signature:
-----------------------------------
---------
(Sign exactly as your name appears on the face of
this Senior Subordinated 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.
A2-11
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Senior Subordinated Note purchased
by the Company pursuant to Section 4.10 or 4.15 of the Senior Subordinated Note
Indenture, check the appropriate box below:
[_]Section 4.10 [_]Section 4.15
If you want to elect to have only part of the Senior Subordinated Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Senior
Subordinated Note Indenture, state the amount you elect to have purchased:
$___________
- --------------------------------------------------------------------------------
Date:
--------------
Your Signature:
-----------------------------------
---------
(Sign exactly as your name appears on the face of this
Senior Subordinated 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.
A2-12
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE REGULATION S TEMPORARY GLOBAL SENIOR SUBORDINATED NOTE
The following exchanges of a part of this Regulation S Temporary
Global Senior Subordinated Note for an interest in another Global Senior
Subordinated Note, or of other Restricted Global Senior Subordinated Notes for
an interest in this Regulation S Temporary Global Senior Subordinated Note, have
been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase Senior authorized officer
Principal Amount in Principal Subordinated Note of Senior
of this Global Amount of this following such Subordinated
Senior Global Senior decrease (or Note Trustee or
Date of Exchange Subordinated Note Subordinated Note increase) Custodian
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
A2-13
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut
Re: 9-5/8% Senior Subordinated Notes due 2008
-----------------------------------------
(CUSIP __________)
Reference is hereby made to the Senior Subordinated Note Indenture,
dated as of May 18, 1998 (the "Senior Subordinated Note Indenture"), between P&L
Coal Holdings Corporation, as issuer (the "Company"), and State Street Bank and
Trust Company, as Senior Subordinated Note Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Senior
Subordinated Note Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Senior Subordinated Note[s] or interest in such Senior Subordinated Note[s]
specified in Annex A hereto, in the principal amount of $___________ in such
Senior Subordinated Note[s] or interests (the "Transfer"), to __________ (the
"Transferee"), as further specified in Annex A hereto. In connection with the
Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
144A Global Senior Subordinated Note or a Definitive Senior Subordinated Note
- -----------------------------------------------------------------------------
Pursuant to Rule 144A. The Transfer is being effected pursuant to and in
- ---------------------
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Senior Subordinated Note is
being transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Definitive Senior Subordinated
Note for its own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Senior Subordinated Note and/or the Definitive Senior
Subordinated Note and in the Senior Subordinated Note Indenture and the
Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
Temporary Regulation S Global Senior Subordinated Note, the Regulation S Global
- -------------------------------------------------------------------------------
Senior Subordinated Note or a Definitive Senior Subordinated Note pursuant to
- -----------------------------------------------------------------------------
Regulation S. The Transfer is being effected pursuant to and in accordance with
- ------------
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
<PAGE>
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act and, (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Senior Subordinated Note, the Temporary Regulation S
Global Senior Subordinated Note and/or the Definitive Senior Subordinated Note
and in the Senior Subordinated Note Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
-------------------------------------------------------------------
interest in the IAI Global Senior Subordinated Note or a Definitive Senior
- --------------------------------------------------------------------------
Subordinated Note pursuant to any provision of the Securities Act other than
- ----------------------------------------------------------------------------
Rule 144A or Regulation S. The Transfer is being effected in compliance with
- -------------------------
the transfer restrictions applicable to beneficial interests in Restricted
Global Senior Subordinated Notes and Restricted Definitive Senior Subordinated
Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Senior Subordinated Note or Restricted Definitive Senior
Subordinated Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Senior Subordinated Note Indenture and (2) if such
Transfer is in respect of a principal amount of Senior Subordinated Notes at the
time of transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Senior Subordinated Note and/or the Definitive Senior
Subordinated Notes and in the Senior Subordinated Note Indenture and the
Securities Act.
B-2
<PAGE>
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Senior Subordinated Note or of an Unrestricted Definitive
Senior Subordinated Note.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Senior
Subordinated Note Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Senior Subordinated Note Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Senior
Subordinated Note Indenture, the transferred beneficial interest or Definitive
Senior Subordinated Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Senior Subordinated Notes, on Restricted Definitive Senior Subordinated
Notes and in the Senior Subordinated Note Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Senior Subordinated Note Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Senior Subordinated Note Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Senior Subordinated Notes, on Restricted Definitive Senior
Subordinated Notes and in the Senior Subordinated Note Indenture.
(c) [_] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Senior Subordinated Note Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Senior Subordinated Note Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Senior Subordinated Note Indenture, the transferred beneficial interest or
Definitive Senior Subordinated Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Senior Subordinated Notes or Restricted Definitive Senior Subordinated
Notes and in the Senior Subordinated Note Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated: ________ __, ____
B-3
<PAGE>
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Senior Subordinated Note (CUSIP _________), or
(ii) [_] Regulation S Global Senior Subordinated Note (CUSIP_______), or
(iii) [_] IAI Global Senior Subordinated Note (CUSIP ________); or
(b) [_] a Restricted Definitive Senior Subordinated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Senior Subordinated Note (CUSIP _____), or
(ii) [_] Regulation S Global Senior Subordinated Note (CUSIP ___), or
(iii) [_] IAI Global Senior Subordinated Note (CUSIP _______); or
(iv) [_] Unrestricted Global Senior Subordinated Note (CUSIP____); or
(b) [_] a Restricted Definitive Senior Subordinated Note; or
(c) [_] an Unrestricted Definitive Senior Subordinated Note,
in accordance with the terms of the Senior Subordinated Note Indenture.
B-4
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut
Re: 9-5/8% Senior Subordinated Notes due 2008
-----------------------------------------
(CUSIP __________)
Reference is hereby made to the Senior Subordinated Note Indenture,
dated as of May 18, 1998 (the "Senior Subordinated Note Indenture"), between P&L
Coal Holdings Corporation, as issuer (the "Company"), and State Street Bank and
Trust Company, as Senior Subordinated Note Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Senior
Subordinated Note Indenture.
____________, (the "Owner") owns and proposes to exchange the Senior
Subordinated Note[s] or interest in such Senior Subordinated Note[s] specified
herein, in the principal amount of $____________ in such Senior Subordinated
Note[s] or interests (the "Exchange"). In connection with the Exchange, the
Owner hereby certifies that:
1. Exchange of Restricted Definitive Senior Subordinated Notes or Beneficial
Interests in a Restricted Global Senior Subordinated Note for Unrestricted
Definitive Senior Subordinated Notes or Beneficial Interests in an Unrestricted
Global Senior Subordinated Note
(a) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Senior Subordinated Note to beneficial interest in an
- -----------------------------------------------------------------------
Unrestricted Global Senior Subordinated Note. In connection with the Exchange of
- --------------------------------------------
the Owner's beneficial interest in a Restricted Global Senior Subordinated Note
for a beneficial interest in an Unrestricted Global Senior Subordinated Note in
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Senior Subordinated Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Senior
Subordinated Note Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Senior Subordinated Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Senior Subordinated Note to Unrestricted Definitive Senior
- ----------------------------------------------------------------------------
Subordinated Note. In connection with the Exchange of the Owner's beneficial
- -----------------
interest in a Restricted Global Senior Subordinated Note for an Unrestricted
Definitive Senior Subordinated Note, the Owner hereby certifies (i) the
Definitive Senior Subordinated Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Senior
Subordinated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Senior Subordinated Note
Indenture and the Private Placement Legend are not
<PAGE>
required in order to maintain compliance with the Securities Act and (iv) the
Definitive Senior Subordinated Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(c) [_] Check if Exchange is from Restricted Definitive Senior
------------------------------------------------------
Subordinated Note to beneficial interest in an Unrestricted Global Senior
- -------------------------------------------------------------------------
Subordinated Note. In connection with the Owner's Exchange of a Restricted
- -----------------
Definitive Senior Subordinated Note for a beneficial interest in an Unrestricted
Global Senior Subordinated Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Senior Subordinated Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Subordinated Note Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) [_] Check if Exchange is from Restricted Definitive Senior
------------------------------------------------------
Subordinated Note to Unrestricted Definitive Senior Subordinated Note. In
- ---------------------------------------------------------------------
connection with the Owner's Exchange of a Restricted Definitive Senior
Subordinated Note for an Unrestricted Definitive Senior Subordinated Note, the
Owner hereby certifies (i) the Unrestricted Definitive Senior Subordinated Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Senior Subordinated Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Subordinated Note Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Senior Subordinated Note is being acquired
in compliance with any applicable blue sky securities laws of any state of the
United States.
2. Exchange of Restricted Definitive Senior Subordinated Notes or Beneficial
Interests in Restricted Global Senior Subordinated Notes for Restricted
Definitive Senior Subordinated Notes or Beneficial Interests in Restricted
Global Senior Subordinated Notes
(a) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Senior Subordinated Note to Restricted Definitive Senior
- --------------------------------------------------------------------------
Subordinated Note. In connection with the Exchange of the Owner's beneficial
- -----------------
interest in a Restricted Global Senior Subordinated Note for a Restricted
Definitive Senior Subordinated Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Senior Subordinated Note is
being acquired for the Owner's own account without transfer. Upon consummation
of the proposed Exchange in accordance with the terms of the Senior Subordinated
Note Indenture, the Restricted Definitive Senior Subordinated Note issued will
continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Senior Subordinated Note
and in the Senior Subordinated Note Indenture and the Securities Act.
(b) [_] Check if Exchange is from Restricted Definitive Senior
------------------------------------------------------
Subordinated Note to beneficial interest in a Restricted Global Senior
- ----------------------------------------------------------------------
Subordinated Note. In connection with the Exchange of the Owner's Restricted
- -----------------
Definitive Senior Subordinated Note for a beneficial interest in the [CHECK ONE]
[_] 144A Global Senior Subordinated Note, [_] Regulation S Global Senior
Subordinated Note, [_] IAI Global Senior Subordinated Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global
C-2
<PAGE>
Senior Subordinated Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Senior Subordinated Note Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Senior
Subordinated Note and in the Senior Subordinated Note Indenture and the
Securities Act.
C-3
<PAGE>
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
---------------------------------
[Insert Name of Owner]
By:
---------------------------
Name:
Title:
Dated: ________________, ____
C-4
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri 63101-1826
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, Connecticut
Re: 9-5/8% Senior Subordinated Notes due 2008
-----------------------------------------
(CUSIP __________)
Reference is hereby made to the Senior Subordinated Note Indenture,
dated as of May 18, 1998 (the "Senior Subordinated Note Indenture"), between P&L
Coal Holdings Corporation, as issuer (the "Company"), and State Street Bank and
Trust Company, as Senior Subordinated Note Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Senior
Subordinated Note Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Senior Subordinated
Note, or
(b) [_] a Definitive Senior Subordinated Note,
we confirm that:
1. We understand that any subsequent transfer of the Senior
Subordinated Notes or any interest therein is subject to certain restrictions
and conditions set forth in the Senior Subordinated Note Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Senior Subordinated Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior
Subordinated Notes have not been registered under the Securities Act, and that
the Senior Subordinated Notes and any interest therein may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell the Senior Subordinated Notes or any interest therein, we
will do so only (A) to the Company or any subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (c) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you and to the Company a signed letter substantially
in the form of this letter and, if such transfer is in respect of a principal
amount of Senior Subordinated Notes, at the time of transfer of less than
$250,000, an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of Regulation S under the
<PAGE>
Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing the
Definitive Senior Subordinated Note or beneficial interest in a Global Senior
Subordinated Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Senior
Subordinated Notes or beneficial interest therein, we will be required to
furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand
that the Senior Subordinated Notes purchased by us will bear a legend to the
foregoing effect. We further understand that any subsequent transfer by us of
the Senior Subordinated Notes or beneficial interest therein acquired by us must
be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Senior
Subordinated Notes, and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
5. We are acquiring the Senior Subordinated Notes or beneficial
interest therein purchased by us for our own account or for one or more accounts
(each of which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
--------------------------------------------
[Insert Name of Accredited Investor]
By:
-------------------------------
Name:
Title:
Dated: __________________, ____
D-2
<PAGE>
EXHIBIT E
FORM OF NOTATION OF SUBORDINATED SUBSIDIARY GUARANTEE
For value received, each Senior Subordinated Note Guarantor (which
term includes any successor Person under the Senior Subordinated Note Indenture)
has, jointly and severally, unconditionally guaranteed, to the extent set forth
in the Senior Subordinated Note Indenture and subject to the provisions in the
Senior Subordinated Note Indenture dated as of May 18, 1998 (the "Senior
Subordinated Note Indenture") among P&L Coal Holdings Corporation, the Senior
Subordinated Note Guarantors listed on Schedule I thereto and State Street Bank
and Trust Company, as Senior Subordinated Note Trustee (the "Senior Subordinated
Note Trustee"), (a) the due and punctual payment of the principal of, premium,
if any, and interest on the Senior Subordinated Notes (as defined in the Senior
Subordinated Note 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 Senior
Subordinated Note Trustee all in accordance with the terms of the Senior
Subordinated Note Indenture and (b) in case of any extension of time of payment
or renewal of any Senior Subordinated 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 Senior Subordinated Note
Guarantors to the Holders of Senior Subordinated Notes and to the Senior
Subordinated Note Trustee pursuant to the Subordinated Subsidiary Guarantee and
the Senior Subordinated Note Indenture are expressly set forth in Article 11 of
the Senior Subordinated Note Indenture and reference is hereby made to the
Senior Subordinated Note Indenture for the precise terms of the Subordinated
Subsidiary Guarantee. Each Holder of a Senior Subordinated Note, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Senior Subordinated Note Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Senior Subordinated Note Indenture and (c)
appoints the Senior Subordinated Note Trustee attorney-in-fact of such Holder
for such purpose; provided, however, that the Indebtedness evidenced by this
Subordinated Subsidiary Guarantee shall cease to be so subordinated and subject
in right of payment upon any defeasance of this Senior Subordinated Note in
accordance with the provisions of the Senior Subordinated Note Indenture.
[Name of Senior Subordinated Note Guarantor(s)]
By:
--------------------------------
Name:
Title:
<PAGE>
EXHIBIT F
FORM OF SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
TO BE DELIVERED BY SUBSEQUENT SENIOR SUBORDINATED NOTE GUARANTORS
Supplemental Senior Subordinated Note Indenture (this "Supplemental
Senior Subordinated Note Indenture"), dated as of ________________, among
__________________ (the "Guaranteeing Subsidiary"), a subsidiary of P&L Coal
Holdings Corporation (or its permitted successor), a Delaware corporation (the
"Company"), the Company, the other Senior Subordinated Note Guarantors (as
defined in the Senior Subordinated Note Indenture referred to herein) and State
Street Bank and Trust Company, as Senior Subordinated Note Trustee under the
Senior Subordinated Note Indenture referred to below (the "Senior Subordinated
Note Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Senior Subordinated Note Trustee an Senior Subordinated Note Indenture (the
"Senior Subordinated Note Indenture"), dated as of May 18, 1998 providing for
the issuance of an aggregate principal amount of up to $650.0 million of 9-5/8%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes");
WHEREAS, the Senior Subordinated Note Indenture provides that under
certain circumstances the Guaranteeing Subsidiary shall execute and deliver to
the Senior Subordinated Note Trustee a supplemental Senior Subordinated Note
Indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Senior Subordinated Notes
and the Senior Subordinated Note Indenture on the terms and conditions set forth
herein (the "Subordinated Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee is authorized to execute and
deliver this Supplemental Senior Subordinated Note 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 Senior Subordinated Note Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Senior Subordinated Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Subordinated
Note Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Senior Subordinated Note Guarantors
named in the Senior Subordinated Note Indenture, to jointly and
severally Guarantee to each Holder of a Senior Subordinated
Note authenticated and delivered by the Senior Subordinated
Note Trustee and to the Senior Subordinated Note Trustee and
its successors and assigns, irrespective of the validity and
enforceability of the Senior Subordinated Note Indenture, the
Senior Subordinated Notes or the obligations of the Company
hereunder or thereunder, that:
<PAGE>
(i) the principal of and interest on the Senior Subordinated
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
Senior Subordinated Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the
Senior Subordinated Note 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 Senior Subordinated 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 Senior Subordinated Note
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 Senior Subordinated Notes or the Senior Subordinated Note
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Senior Subordinated
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 Senior Subordinated Note 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 Subordinated Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in
the Senior Subordinated Notes and the Senior Subordinated Note
Indenture.
(e) If any Holder or the Senior Subordinated Note Trustee is
required by any court or otherwise to return to the Company,
the Senior Subordinated Note Guarantors, or any custodian,
Senior Subordinated Note Trustee, liquidator or other similar
official acting in relation to either the Company or the Senior
Subordinated Note Guarantors, any amount paid by either to the
Senior Subordinated Note Trustee or such Holder, this
Subordinated 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.
F-2
<PAGE>
(g) As between the Senior Subordinated Note Guarantors, on the one
hand, and the Holders and the Senior Subordinated Note Trustee,
on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6
of the Senior Subordinated Note Indenture for the purposes of
this Subordinated 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 Senior Subordinated
Note Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Senior
Subordinated Note Guarantors for the purpose of this
Subordinated Subsidiary Guarantee.
(h) The Senior Subordinated Note Guarantors shall have the right to
seek contribution from any non-paying Senior Subordinated Note
Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Subordinated Subsidiary
Guarantee.
(i) Pursuant to Section 11.02 of the Senior Subordinated Note
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
Senior Subordinated Note Guarantor in respect of the
obligations of such other Senior Subordinated Note Guarantor
under Article 11 of the Senior Subordinated Note Indenture
shall result in the obligations of such Senior Subordinated
Note Guarantor under its Subordinated Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees
that the Subordinated Subsidiary Guarantees shall remain in full force and
effect notwithstanding any failure to endorse on each Senior Subordinated Note a
notation of such Subordinated 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 Senior Subordinated Note Guarantor is the
surviving Person) another corporation, Person or entity whether or
not affiliated with such Senior Subordinated Note Guarantor unless:
(i) subject to Section 11.05 of the Senior Subordinated Note
Indenture, the Person formed by or surviving any such
consolidation or merger (if other than a Senior Subordinated
Note Guarantor or the Company) unconditionally assumes all the
obligations of such Senior Subordinated Note Guarantor,
pursuant to a supplemental Senior Subordinated Note Indenture
in form and substance reasonably satisfactory to the Senior
Subordinated Note Trustee, under the Senior Subordinated Notes,
the Senior Subordinated Note Indenture and the Subordinated
Subsidiary Guarantee on the terms set forth herein or therein;
and
F-3
<PAGE>
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
Senior Subordinated Note Indenture, executed and delivered to the
Senior Subordinated Note Trustee and satisfactory in form to the
Senior Subordinated Note Trustee, of the Subordinated Subsidiary
Guarantee endorsed upon the Senior Subordinated Notes and the due and
punctual performance of all of the covenants and conditions of the
Senior Subordinated Note Indenture to be performed by the Senior
Subordinated Note Guarantor, such successor corporation shall succeed
to and be substituted for the Senior Subordinated Note Guarantor with
the same effect as if it had been named herein as a Senior
Subordinated Note Guarantor. Such successor corporation thereupon may
cause to be signed any or all of the Subordinated Subsidiary
Guarantees to be endorsed upon all of the Senior Subordinated Notes
issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Senior Subordinated Note Trustee.
All the Subordinated Subsidiary Guarantees so issued shall in all
respects have the same legal rank and benefit under the Senior
Subordinated Note Indenture as the Subordinated Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of the
Senior Subordinated Note Indenture as though all of such Subordinated
Subsidiary Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior
Subordinated Note Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Senior Subordinated Note Indenture or in any of the
Senior Subordinated Notes shall prevent any consolidation or merger of a Senior
Subordinated Note Guarantor with or into the Company or another Senior
Subordinated Note Guarantor, or shall prevent any sale or conveyance of the
property of a Senior Subordinated Note Guarantor as an entirety or substantially
as an entirety to the Company or another Senior Subordinated Note Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Senior Subordinated Note Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all to
the capital stock of any Senior Subordinated Note Guarantor, then
such Senior Subordinated Note Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Senior Subordinated Note Guarantor)
or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such
Senior Subordinated Note Guarantor) will be released and relieved of
any obligations under its Subordinated Subsidiary Guarantee; provided
that the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of the Senior
Subordinated Note Indenture, including without limitation Section
4.10 of the Senior Subordinated Note Indenture. Upon delivery by the
Company to the Senior Subordinated Note Trustee of an Officer's
Certificate and an Opinion of Counsel to the effect that such sale or
other disposition was made by the Company in accordance with the
provisions of the Senior Subordinated Note Indenture, including
without limitation Section 4.10 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee shall execute any
documents reasonably required in order to evidence the release of any
Senior
F-4
<PAGE>
Subordinated Note Guarantor from its obligations under its
Subordinated Subsidiary Guarantee.
(b) Any Senior Subordinated Note Guarantor not released from its
obligations under its Subordinated Subsidiary Guarantee shall remain
liable for the full amount of principal of and interest on the Senior
Subordinated Notes and for the other obligations of any Senior
Subordinated Note Guarantor under the Senior Subordinated Note
Indenture as provided in Article 11 of the Senior Subordinated Note
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 Senior Subordinated
Notes, any Subordinated Subsidiary Guarantees, the Senior Subordinated Note
Indenture or this Supplemental Senior Subordinated Note Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Senior Subordinated Notes by accepting a Senior
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Senior Subordinated 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 INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR SUBORDINATED
NOTE INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
8. Counterparts The parties may sign any number of copies of this
Supplemental Senior Subordinated Note Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. The Senior Subordinated Note Trustee. The Senior Subordinated
Note Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Senior Subordinated Note
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.
F-5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Senior Subordinated Note Indenture to be duly executed and attested, all as of
the date first above written.
Dated: ________ __, ____
[Guaranteeing Subsidiary]
By:
--------------------------------
Name:
Title:
P&L Coal Holdings Corporation
By:
--------------------------------
Name:
Title:
[EXISTING SENIOR SUBORDINATED NOTE GUARANTORS]
By:
--------------------------------
Name:
Title:
State Street Bank and Trust Company
as Senior Subordinated Note Trustee
By:
--------------------------------
Name:
Title:
F-6
<PAGE>
Schedule I
SCHEDULE OF SENIOR SUBORDINATED NOTE GUARANTORS
The following schedule lists each Senior Subordinated Note Guarantor
under the Senior Subordinated Note Indenture as of the Issue Date:
1. Arid Operations Inc., a Delaware corporation.
2. Darius Gold Mine, Inc., a Delaware corporation.
3. Gold Fields Chile, S.A., a Delaware corporation.
4. Gold Fields Mining Corporation, a Delaware corporation.
5. Gold Fields Operating Co. - Ortiz, a Delaware corporation.
6. Peabody America, Inc., a Delaware corporation.
7. Peabody Holding Company, Inc., a New York corporation.
8. Affinity Mining Company, a West Virginia corporation.
9. Big Sky Coal Company, a Delaware corporation.
10. Blackrock First Capital Corporation, a West Virginia corporation.
11. Bluegrass Coal Company, a Delaware corporation.
12. Caballo Coal Company, a Delaware corporation.
13. Charles Coal Company, a Delaware corporation.
14. Coal Properties Corp., a Delaware corporation.
15. Cook Mountain Coal Company, a Delaware corporation.
16. Cottonwood Land Company, a Delaware corporation.
17. EACC Camps, Inc., a West Virginia corporation.
18. Eastern Associated Coal Corp, a West Virginia corporation.
19. Eastern Royalty Corp., a Delaware corporation.
20. Grand Eagle Mining, Inc., a Kentucky corporation.
21. Hayden Gulch Terminal, Inc., a Delaware corporation.
22. Independence Material Handling Company, a Delaware corporation.
23. Interior Holdings Corp., a Delaware corporation.
24. James River Coal Terminal Company, a Delaware corporation.
25. Juniper Coal Company, a Delaware corporation.
26. Kayenta Mobile Home Park, Inc., a Delaware corporation.
27. Martinka Coal Company, a Delaware corporation.
28. Midco Supply and Equipment Corporation, an Illinois corporation.
29. Midwest Coal Resources, Inc., a Delaware corporation.
30. Mountain View Coal Company, a Delaware corporation.
31. North Page Coal Corp., a West Virginia corporation.
32. Ohio County Coal Company, a Kentucky corporation.
33. Patriot Coal Company, L.P., a Delaware limited partnership.
34. Peabody COALSALES Company, a Delaware corporation.
35. Peabody COALTRADE, Inc., a Delaware corporation.
36. Peabody Coal Company, a Delaware corporation.
37. Peabody Development Company, a Delaware corporation.
38. Peabody Energy Solutions, Inc., a Delaware corporation.
39. Peabody Natural Resources Company, a Delaware general partnership.
40. Peabody Terminals, Inc., a Delaware corporation.
41. Peabody Venezuela Coal Corp., a Delaware corporation.
42. Peabody Western Coal Company, a Delaware corporation.
43. Pine Ridge Coal Company, a Delaware corporation.
44. Powder River Coal Company, a Delaware corporation.
45. Rio Escondido Coal Corp., a Delaware corporation.
46. Seneca Coal Company, a Delaware corporation.
47. Sentry Mining Company, a Delaware corporation.
48. Snowberry Land Company, a Delaware corporation.
<PAGE>
49. Sterling Smokeless Coal Company, a West Virginia corporation.
50. Thoroughbred, L.L.C., a Delaware limited liability company.
51. Colony Bay Coal Company, a West Virginia partnership.
<PAGE>
EXHIBIT 4.3
FIRST SUPPLEMENTAL SENIOR NOTE INDENTURE
FIRST SUPPLEMENTAL SENIOR NOTE INDENTURE (this "SUPPLEMENTAL SENIOR
NOTE INDENTURE"), dated as of May 19, 1998, among Arid Operations Inc., a
Delaware corporation, Darius Gold Mine, Inc., a Delaware corporation, Colony Bay
Coal Company, a West Virginia Partnership, Gold Fields Chile, S.A., a Delaware
corporation, Gold Fields Mining Corporation, a Delaware corporation, Gold Fields
Operating Co. - Ortiz, a Delaware corporation, Peabody America, Inc., a Delaware
corporation, Peabody America, Inc., a Delaware corporation, Peabody Holding
Company, Inc., a New York corporation, Affinity Mining Company, a West Virginia
corporation, Big Sky Coal Company, a Delaware corporation, Blackrock First
Capital Corporation, a West Virginia corporation, Bluegrass Coal Company, a
Delaware corporation, Caballo Coal Company, a Delaware corporation, Charles Coal
Company, a Delaware corporation, Coal Properties Corp., a Delaware corporation,
Cook Mountain Coal Company, a Delaware corporation, Cottonwood Land Company, a
Delaware corporation, EACC Camps, Inc., a West Virginia corporation, Eastern
Associated Coal Corp., a West Virginia corporation, Eastern Royalty Corp., a
Delaware corporation, Grand Eagle Mining, Inc., a Kentucky corporation, Hayden
Gulch Terminal, Inc., a Delaware corporation, Independence Material Handling
Company, a Delaware corporation, Interior Holdings Corp., a Delaware
corporation, James River Coal Terminal Company, a Delaware corporation, Juniper
Coal Company, a Delaware corporation, Kayenta Mobile Home Park, Inc., a Delaware
corporation, Martinka Coal Company, a Delaware corporation, Midco Supply and
Equipment Corporation, an Illinois corporation, Midwest Coal Resources, Inc., a
Delaware corporation, Mountain View Coal Company, a Delaware corporation, North
Page Coal Corp., a West Virginia corporation, Ohio County Coal Company, a
Kentucky corporation, Patriot Coal Company, L.P., a Delaware limited
partnership, Peabody COALSALES Company, a Delaware corporation, Peabody
COALTRADE, Inc., a Delaware corporation, Peabody Coal Company, a Delaware
corporation, Peabody Development Company, a Delaware corporation, Peabody Energy
Solutions, Inc., a Delaware corporation, Peabody Natural Resources Company, a
Delaware general partnership, Peabody Terminals, Inc., a Delaware corporation,
Peabody Venezuela Coal Corp., a Delaware corporation, Peabody Western Coal
Company, a Delaware corporation, Pine Ridge Coal Company, a Delaware
corporation, Powder River Coal Company, a Delaware corporation, Rio Escondido
Coal Corp., a Delaware corporation, Seneca Coal Company, a Delaware corporation,
Sentry Mining Company, a Delaware corporation, Snowberry Land Company, a
Delaware corporation, Sterling Smokeless Coal Company, a West Virginia
corporation, and Thoroughbred, L.L.C., a Delaware limited liability company (the
"GUARANTEEING SUBSIDIARY"), a subsidiary of P&L Coal Holdings Corporation (or
its permitted successor), a Delaware corporation (the "COMPANY"), the Company,
the other Senior Note Guarantors (as defined in the Senior Note Indenture
referred to herein) and State Street Bank and Trust Company, as Senior Note
Trustee under the Senior Note Indenture referred to below (the "SENIOR NOTE
TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Senior Note Trustee an Senior Note Indenture (the "SENIOR NOTE INDENTURE"),
dated as of May 18, 1998 providing for the issuance of an aggregate principal
amount of up to $550.0 million of 8-7/8% Senior Notes due 2008 (the "SENIOR
NOTES");
WHEREAS, the Senior Note Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Senior Note Trustee a supplemental Senior Note Indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's
Obligations under the Senior Notes and the Senior Note Indenture on the terms
and conditions set forth herein (the "SENIOR SUBSIDIARY GUARANTEE"); and
<PAGE>
WHEREAS, pursuant to Section 9.01 of the Senior Note Indenture, the
Senior Note Trustee is authorized to execute and deliver this Supplemental
Senior Note 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 Senior Note Trustee mutually covenant and agree
for the equal and ratable benefit of the Holders of the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Note
Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Senior Note Guarantors named in the Senior
Note Indenture, to jointly and severally Guarantee to each Holder of a
Senior Note authenticated and delivered by the Senior Note Trustee and
to the Senior Note Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Senior Note
Indenture, the Senior Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Senior 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 Senior Notes, if
any, if lawful, and all other obligations of the Company to
the Holders or the Senior Note 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 Senior 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 Senior
Note 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
Senior Notes or the Senior Note Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Senior
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 Senior Note 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
<PAGE>
Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(d) This Senior Subsidiary Guarantee shall not be discharged except
by complete performance of the obligations contained in the
Senior Notes and the Senior Note Indenture.
(e) If any Holder or the Senior Note Trustee is required by any court
or otherwise to return to the Company, the Senior Note
Guarantors, or any custodian, Senior Note Trustee, liquidator or
other similar official acting in relation to either the Company
or the Senior Note Guarantors, any amount paid by either to the
Senior Note Trustee or such Holder, this Senior 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 Senior Note Guarantors, on the one hand, and the
Holders and the Senior Note Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 of the Senior Note Indenture for the
purposes of this Senior 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 Senior Note
Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Senior Note
Guarantors for the purpose of this Senior Subsidiary Guarantee.
(h) The Senior Note Guarantors shall have the right to seek
contribution from any non-paying Senior Note Guarantor so long as
the exercise of such right does not impair the rights of the
Holders under the Senior Subsidiary Guarantee.
(i) Pursuant to Section 10.04 of the Senior Note 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 Senior Note Guarantor
in respect of the obligations of such other Senior Note Guarantor
under Article 10 of the Senior Note Indenture shall result in the
obligations of such Senior Note Guarantor under its Senior
Subsidiary Guarantee not constituting a fraudulent transfer or
conveyance.
3 EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that
the Senior Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Senior Subsidiary Guarantee.
<PAGE>
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 Senior Note Guarantor is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Senior Note Guarantor unless:
(i) subject to Section 10.04 of the Senior Note Indenture, the Person
formed by or surviving any such consolidation or merger (if other
than a Senior Note Guarantor or the Company) unconditionally
assumes all the obligations of such Senior Note Guarantor,
pursuant to a supplemental Senior Note Indenture in form and
substance reasonably satisfactory to the Senior Note Trustee,
under the Senior Notes, the Senior Note Indenture and the Senior
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 exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental Senior
Note Indenture, executed and delivered to the Senior Note Trustee and
satisfactory in form to the Senior Note Trustee, of the Senior
Subsidiary Guarantee endorsed upon the Senior Notes and the due and
punctual performance of all of the covenants and conditions of the
Senior Note Indenture to be performed by the Senior Note Guarantor,
such successor corporation shall succeed to and be substituted for the
Senior Note Guarantor with the same effect as if it had been named
herein as a Senior Note Guarantor. Such successor corporation
thereupon may cause to be signed any or all of the Senior Subsidiary
Guarantees to be endorsed upon all of the Senior Notes issuable
hereunder which theretofore shall not have been signed by the Company
and delivered to the Senior Note Trustee. All the Senior Subsidiary
Guarantees so issued shall in all respects have the same legal rank
and benefit under the Senior Note Indenture as the Senior Subsidiary
Guarantees theretofore and thereafter issued in accordance with the
terms of the Senior Note Indenture as though all of such Senior
Subsidiary Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior Note
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in
the Senior Note Indenture or in any of the Senior Notes shall prevent any
consolidation or merger of a Senior Note Guarantor with or into the Company or
another Senior Note Guarantor, or shall prevent any sale or conveyance of the
property of a Senior Note Guarantor as an entirety or substantially as an
entirety to the Company or another Senior Note Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Senior Note Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the capital stock
of any Senior Note Guarantor, then such Senior Note Guarantor (in the
event of a sale or other disposition, by way of merger, consolidation
or otherwise, of all of the capital stock of such Senior Note
Guarantor) or the corporation acquiring the property (in the event of
a sale or other disposition of all or substantially all of the assets
<PAGE>
of such Senior Note Guarantor) will be released and relieved of any
obligations under its Senior Subsidiary Guarantee; provided that the
Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Senior Note
Indenture, including without limitation Section 4.10 of the Senior
Note Indenture. Upon delivery by the Company to the Senior Note
Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Senior Note Indenture, including
without limitation Section 4.10 of the Senior Note Indenture, the
Senior Note Trustee shall execute any documents reasonably required in
order to evidence the release of any Senior Note Guarantor from its
obligations under its Senior Subsidiary Guarantee.
(b) Any Senior Note Guarantor not released from its obligations under its
Senior Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Senior Notes and for the other
obligations of any Senior Note Guarantor under the Senior Note
Indenture as provided in Article 10 of the Senior Note 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 Senior Notes, any Senior Subsidiary
Guarantees, the Senior Note Indenture or this Supplemental Senior Note Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Senior Notes by accepting a Senior Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior 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 INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR NOTE
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
8. COUNTERPARTS The parties may sign any number of copies of this
Supplemental Senior Note Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10 THE SENIOR NOTE TRUSTEE. The Senior Note Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Senior Note 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Senior Note Indenture to be duly executed and attested, all as of the date first
above written.
Dated: May 19, 1998
ARID OPERATIONS, INC.
By: /s/ Christopher G. Farrand
-----------------------------------
Name: Christopher G. Farrand
Title: Vice President
DARIUS GOLD MINE, INC.
By: /s/ Christopher G. Farrand
-----------------------------------
Name: Christopher G. Farrand
Title: Vice President
COLONY BAY COAL COMPANY
By: Charles Coal Company
By: /s/ Christopher G. Farrand
-----------------------------------
Name: Christopher G. Farrand
Title: Vice President
GOLD FIELDS CHILE, S.A.
By: /s/ Christopher G. Farrand
-----------------------------------
Name: Christopher G. Farrand
Title: Vice President
GOLD FIELDS MINING CORPORATION
By: /s/ Christopher G. Farrand
-----------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
GOLD FIELDS OPERATING CO.-ORTIZ
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY AMERICA, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY HOLDING COMPANY, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
AFFINITY MINING COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
BIG SKY COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
BLACKROCK FIRST CAPITAL CORPORATION
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
BLUEGRASS COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
CABALLO COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
CHARLES COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
COAL PROPERTIES CORP.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
COOK MOUNTAIN COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
COTTONWOOD LAND COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
EACC CAMPS, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
EASTERN ASSOCIATED COAL CORP
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
EASTERN ROYALTY CORP.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
GRAND EAGLE MINING, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
HAYDEN GULCH TERMINAL, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
INDEPENDENCE MATERIAL HANDLING
COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
INTERIOR HOLDINGS CORP.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
JAMES RIVER COAL TERMINAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
JUNIPER COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
KAYENTA MOBILE HOME PARK, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
MARTINKA COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
MIDCO SUPPLY AND EQUIPMENT CORPORATION
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
MIDWEST COAL RESOURCES, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
MOUNTAIN VIEW COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
NORTH PAGE COAL CORP.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
OHIO COUNTY COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PATRIOT COAL COMPANY L.P.
By: Bluegrass Coal Company
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY COALSALES COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
PEABODY COALTRADE, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY DEVELOPMENT COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY ENERGY SOLUTIONS, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY NATURAL RESOURCES COMPANY
By: Gold Fields Mining Corp.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY TERMINALS, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
PEABODY VENEZUELA COAL CORP.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY WESTERN COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PINE RIDGE COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
POWDER RIVER COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
RIO ESCONDIDO COAL CORP.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
SENECA COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
SENTRY MINING COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
SNOWBERRY LAND COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
STERLING SMOKELESS COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
THOROUGHBRED, L.L.C.
By: Peabody Holding Company
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
P&L COAL HOLDINGS CORPORATION
By: /s/ Felix Herlihy
----------------------------------
Name: Felix Herlihy
Title: Vice President, Treasurer
and Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
as Senior Note Trustee
By: /s/ Philip G. Kane Jr.
----------------------------------
Name: Philip G. Kane Jr.
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF SENIOR NOTE GUARANTORS
The following schedule lists each Senior Note Guarantor under the
Senior Note Indenture as of May 19, 1998:
Arid Operations Inc., a Delaware corporation.
Darius Gold Mine, Inc., a Delaware corporation.
1. Gold Fields Chile, S.A., a Delaware corporation.
Gold Fields Mining Corporation, a Delaware corporation.
2. Gold Fields Operating Co.- Ortiz, a Delaware corporation.
3. Peabody America, Inc., a Delaware corporation.
4. Peabody Holding Company, Inc., a New York corporation.
5. Affinity Mining Company, a West Virginia corporation.
6. Big Sky Coal Company, a Delaware corporation.
7. Blackrock First Capital Corporation, a West Virginia corporation.
8. Bluegrass Coal Company, a Delaware corporation.
9. Caballo Coal Company, a Delaware corporation.
10.Charles Coal Company, a Delaware corporation.
11.Coal Properties Corp., a Delaware corporation.
12.Cook Mountain Coal Company, a Delaware corporation.
13.Cottonwood Land Company, a Delaware corporation.
14.EACC Camps, Inc., a West Virginia corporation.
15.Eastern Associated Coal Corp, a West Virginia corporation.
16.Eastern Royalty Corp., a Delaware corporation.
17.Grand Eagle Mining, Inc., a Kentucky corporation.
18.Hayden Gulch Terminal, Inc., a Delaware corporation.
19.Independence Material Handling Company, a Delaware corporation.
20.Interior Holdings Corp., a Delaware corporation.
21.James River Coal Terminal Company, a Delaware corporation.
22.Juniper Coal Company, a Delaware corporation.
23.Kayenta Mobile Home Park, Inc., a Delaware corporation.
24.Martinka Coal Company, a Delaware corporation.
25.Midco Supply and Equipment Corporation, an Illinois corporation.
26.Midwest Coal Resources, Inc., a Delaware corporation.
27.Mountain View Coal Company, a Delaware corporation.
<PAGE>
28.North Page Coal Corp., a West Virginia corporation.
29.Ohio County Coal Company, a Kentucky corporation.
30.Patriot Coal Company, L.P., a Delaware limited partnership.
31.Peabody COALSALES Company, a Delaware corporation.
32.Peabody COALTRADE, Inc., a Delaware corporation.
33.Peabody Coal Company, a Delaware corporation.
34.Peabody Development Company, a Delaware corporation.
35.Peabody Energy Solutions, Inc., a Delaware corporation.
36.Peabody Natural Resources Company, a Delaware general partnership.
37.Peabody Terminals, Inc., a Delaware corporation.
38.Peabody Venezuela Coal Corp., a Delaware corporation.
39.Peabody Western Coal Company, a Delaware corporation.
40.Pine Ridge Coal Company, a Delaware corporation.
41.Powder River Coal Company, a Delaware corporation.
42.Rio Escondido Coal Corp., a Delaware corporation.
43.Seneca Coal Company, a Delaware corporation.
44.Sentry Mining Company, a Delaware corporation.
45.Snowberry Land Company, a Delaware corporation.
46.Sterling Smokeless Coal Company, a West Virginia corporation.
47.Thoroughbred, L.L.C., a Delaware limited liability company.
48.Colony Bay Coal Company, a West Virginia partnership
<PAGE>
EXHIBIT 4.4
FIRST SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
FIRST SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE (this
"SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE"), dated as of May 19, 1998,
among Arid Operations Inc., a Delaware corporation, Darius Gold Mine, Inc., a
Delaware corporation, Colony Bay Coal Company, a West Virginia partnership, Gold
Fields Chile, S.A., a Delaware corporation, Gold Fields Mining Corporation, a
Delaware corporation, Gold Fields Operating Co. - Ortiz, a Delaware corporation,
Peabody America, Inc., a Delaware corporation, Peabody America, Inc., a Delaware
corporation, Peabody Holding Company, Inc., a New York corporation, Affinity
Mining Company, a West Virginia corporation, Big Sky Coal Company, a Delaware
corporation, Blackrock First Capital Corporation, a West Virginia corporation,
Bluegrass Coal Company, a Delaware corporation, Caballo Coal Company, a Delaware
corporation, Charles Coal Company, a Delaware corporation, Coal Properties
Corp., a Delaware corporation, Cook Mountain Coal Company, a Delaware
corporation, Cottonwood Land Company, a Delaware corporation, EACC Camps, Inc.,
a West Virginia corporation, Eastern Associated Coal Corp., a West Virginia
corporation, Eastern Royalty Corp., a Delaware corporation, Grand Eagle Mining,
Inc., a Kentucky corporation, Hayden Gulch Terminal, Inc., a Delaware
corporation, Independence Material Handling Company, a Delaware corporation,
Interior Holdings Corp., a Delaware corporation, James River Coal Terminal
Company, a Delaware corporation, Juniper Coal Company, a Delaware corporation,
Kayenta Mobile Home Park, Inc., a Delaware corporation, Martinka Coal Company, a
Delaware corporation, Midco Supply and Equipment Corporation, an Illinois
corporation, Midwest Coal Resources, Inc., a Delaware corporation, Mountain View
Coal Company, a Delaware corporation, North Page Coal Corp., a West Virginia
corporation, Ohio County Coal Company, a Kentucky corporation, Patriot Coal
Company, L.P., a Delaware limited partnership, Peabody COALSALES Company, a
Delaware corporation, Peabody COALTRADE, Inc., a Delaware corporation, Peabody
Coal Company, a Delaware corporation, Peabody Development Company, a Delaware
corporation, Peabody Energy Solutions, Inc., a Delaware corporation, Peabody
Natural Resources Company, a Delaware general partnership, Peabody Terminals,
Inc., a Delaware corporation, Peabody Venezuela Coal Corp., a Delaware
corporation, Peabody Western Coal Company, a Delaware corporation, Pine Ridge
Coal Company, a Delaware corporation, Powder River Coal Company, a Delaware
corporation, Rio Escondido Coal Corp., a Delaware corporation, Seneca Coal
Company, a Delaware corporation, Sentry Mining Company, a Delaware corporation,
Snowberry Land Company, a Delaware corporation, Sterling Smokeless Coal Company,
a West Virginia corporation, and Thoroughbred, L.L.C., a Delaware limited
liability company (the "GUARANTEEING SUBSIDIARY"), a subsidiary of P&L Coal
Holdings Corporation (or its permitted successor), a Delaware corporation (the
"COMPANY"), the Company, the other Senior Subordinated Note Guarantors (as
defined in the Senior Subordinated Note Indenture referred to herein) and State
Street Bank and Trust Company, as Senior Subordinated Note Trustee under the
Senior Subordinated Note Indenture referred to below (the "SENIOR SUBORDINATED
NOTE TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Senior Subordinated Note Trustee an Senior Subordinated Note Indenture (the
"SENIOR SUBORDINATED NOTE INDENTURE"), dated as of May 18, 1998 providing for
the issuance of an aggregate principal amount of up to $650.0 million of 9-5/8%
Senior Subordinated Notes due 2008 (the "SENIOR SUBORDINATED NOTES");
WHEREAS, the Senior Subordinated Note Indenture provides that under
certain circumstances the Guaranteeing Subsidiary shall execute and deliver to
the Senior Subordinated Note Trustee a supplemental Senior Subordinated Note
Indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Senior Subordinated Notes
and the Senior Subordinated Note Indenture on the terms and conditions set forth
herein (the "SUBORDINATED SUBSIDIARY GUARANTEE"); and
<PAGE>
WHEREAS, pursuant to Section 9.01 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee is authorized to execute and
deliver this Supplemental Senior Subordinated Note 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 Senior Subordinated Note Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Subordinated
Note Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Senior Subordinated Note Guarantors named
in the Senior Subordinated Note Indenture, to jointly and severally
Guarantee to each Holder of a Senior Subordinated Note authenticated
and delivered by the Senior Subordinated Note Trustee and to the
Senior Subordinated Note Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Senior
Subordinated Note Indenture, the Senior Subordinated Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Senior Subordinated
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
Senior Subordinated Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the
Senior Subordinated Note 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 Senior Subordinated 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 Senior Subordinated Note 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
Senior Subordinated Notes or the Senior Subordinated Note Indenture,
the absence of any action to enforce the same, any waiver or consent by
any Holder of the Senior Subordinated 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 Senior Subordinated Note Guarantor.
<PAGE>
(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 Subordinated Subsidiary Guarantee shall not be
discharged except by complete performance of the
obligations contained in the Senior Subordinated Notes and
the Senior Subordinated Note Indenture.
(e) If any Holder or the Senior Subordinated Note Trustee is
required by any court or otherwise to return to the
Company, the Senior Subordinated Note Guarantors, or any
custodian, Senior Subordinated Note Trustee, liquidator or
other similar official acting in relation to either the
Company or the Senior Subordinated Note Guarantors, any
amount paid by either to the Senior Subordinated Note
Trustee or such Holder, this Subordinated 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 Senior Subordinated Note Guarantors, on the
one hand, and the Holders and the Senior Subordinated Note
Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as
provided in Article 6 of the Senior Subordinated Note
Indenture for the purposes of this Subordinated 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 Senior Subordinated Note
Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the
Senior Subordinated Note Guarantors for the purpose of
this Subordinated Subsidiary Guarantee.
(h) The Senior Subordinated Note Guarantors shall have the
right to seek contribution from any non-paying Senior
Subordinated Note Guarantor so long as the exercise of
such right does not impair the rights of the Holders under
the Subordinated Subsidiary Guarantee.
(i) Pursuant to Section 11.02 of the Senior Subordinated Note
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 Senior
Subordinated Note Guarantor in respect of the obligations
of such other Senior Subordinated Note Guarantor under
Article 11 of the Senior Subordinated Note Indenture shall
result in the obligations of such Senior Subordinated Note
Guarantor under its Subordinated Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
<PAGE>
3 EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that
the Subordinated Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Subordinated Note a
notation of such Subordinated 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 Senior Subordinated Note Guarantor is the
surviving Person) another corporation, Person or entity whether or not
affiliated with such Senior Subordinated Note Guarantor unless:
(i) subject to Section 11.05 of the Senior Subordinated Note
Indenture, the Person formed by or surviving any such
consolidation or merger (if other than a Senior Subordinated Note
Guarantor or the Company) unconditionally assumes all the
obligations of such Senior Subordinated Note Guarantor, pursuant
to a supplemental Senior Subordinated Note Indenture in form and
substance reasonably satisfactory to the Senior Subordinated Note
Trustee, under the Senior Subordinated Notes, the Senior
Subordinated Note Indenture and the Subordinated 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 exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental Senior
Subordinated Note Indenture, executed and delivered to the Senior
Subordinated Note Trustee and satisfactory in form to the Senior
Subordinated Note Trustee, of the Subordinated Subsidiary Guarantee
endorsed upon the Senior Subordinated Notes and the due and punctual
performance of all of the covenants and conditions of the Senior
Subordinated Note Indenture to be performed by the Senior Subordinated
Note Guarantor, such successor corporation shall succeed to and be
substituted for the Senior Subordinated Note Guarantor with the same
effect as if it had been named herein as a Senior Subordinated Note
Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Subordinated Subsidiary Guarantees to be
endorsed upon all of the Senior Subordinated Notes issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Senior Subordinated Note Trustee. All the
Subordinated Subsidiary Guarantees so issued shall in all respects
have the same legal rank and benefit under the Senior Subordinated
Note Indenture as the Subordinated Subsidiary Guarantees theretofore
and thereafter issued in accordance with the terms of the Senior
Subordinated Note Indenture as though all of such Subordinated
Subsidiary Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior
Subordinated Note Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Senior Subordinated Note Indenture or in any of the
Senior Subordinated Notes shall prevent any consolidation or merger of a Senior
Subordinated Note Guarantor with or into the Company or another Senior
Subordinated Note Guarantor, or shall prevent any sale or conveyance of the
property of a Senior Subordinated Note Guarantor as an entirety or substantially
as an entirety to the Company or another Senior Subordinated Note Guarantor.
<PAGE>
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Senior Subordinated Note Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all to
the capital stock of any Senior Subordinated Note Guarantor, then such
Senior Subordinated Note Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of such Senior Subordinated Note Guarantor) or the
corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Senior
Subordinated Note Guarantor) will be released and relieved of any
obligations under its Subordinated Subsidiary Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Senior Subordinated
Note Indenture, including without limitation Section 4.10 of the
Senior Subordinated Note Indenture. Upon delivery by the Company to
the Senior Subordinated Note Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions
of the Senior Subordinated Note Indenture, including without
limitation Section 4.10 of the Senior Subordinated Note Indenture, the
Senior Subordinated Note Trustee shall execute any documents
reasonably required in order to evidence the release of any Senior
Subordinated Note Guarantor from its obligations under its
Subordinated Subsidiary Guarantee.
(b) Any Senior Subordinated Note Guarantor not released from its
obligations under its Subordinated Subsidiary Guarantee shall remain
liable for the full amount of principal of and interest on the Senior
Subordinated Notes and for the other obligations of any Senior
Subordinated Note Guarantor under the Senior Subordinated Note
Indenture as provided in Article 11 of the Senior Subordinated Note
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 Senior Subordinated Notes, any
Subordinated Subsidiary Guarantees, the Senior Subordinated Note Indenture or
this Supplemental Senior Subordinated Note Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
of the Senior Subordinated Notes by accepting a Senior Subordinated Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Subordinated 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 INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR SUBORDINATED
NOTE INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
<PAGE>
8. COUNTERPARTS The parties may sign any number of copies of this
Supplemental Senior Subordinated Note Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10 THE SENIOR SUBORDINATED NOTE TRUSTEE. The Senior Subordinated
Note Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Senior Subordinated Note
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Senior Subordinated Note Indenture to be duly executed and attested, all as of
the date first above written.
Dated: May 19, 1998
ARID OPERATIONS, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
DARIUS GOLD MINE, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
COLONY BAY COAL COMPANY
By: Charles Coal Company
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
GOLD FIELDS CHILE, S.A.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
GOLD FIELDS MINING CORPORATION
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
GOLD FIELDS OPERATING CO.-ORTIZ
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY AMERICA, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY HOLDING COMPANY, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
AFFINITY MINING COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
BIG SKY COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
BLACKROCK FIRST CAPITAL CORPORATION
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
BLUEGRASS COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
CABALLO COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
CHARLES COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
COAL PROPERTIES CORP.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
COOK MOUNTAIN COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
COTTONWOOD LAND COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
EACC CAMPS, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
EASTERN ASSOCIATED COAL CORP
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
EASTERN ROYALTY CORP.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
GRAND EAGLE MINING, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
HAYDEN GULCH TERMINAL, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
INDEPENDENCE MATERIAL HANDLING
COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
INTERIOR HOLDINGS CORP.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
JAMES RIVER COAL TERMINAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
JUNIPER COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
KAYENTA MOBILE HOME PARK, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
MARTINKA COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
MIDCO SUPPLY AND EQUIPMENT CORPORATION
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
MIDWEST COAL RESOURCES, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
MOUNTAIN VIEW COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
NORTH PAGE COAL CORP.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
OHIO COUNTY COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PATRIOT COAL COMPANY L.P.
By: Bluegrass Coal Company
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY COALSALES COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
PEABODY COALTRADE, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY DEVELOPMENT COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY ENERGY SOLUTIONS, INC.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY NATURAL RESOURCES COMPANY
By: Gold Fields Mining Corp.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY TERMINALS, INC.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
PEABODY VENEZUELA COAL CORP.
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PEABODY WESTERN COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
PINE RIDGE COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
POWDER RIVER COAL COMPANY
By: /s/ Christopher G. Farrand
---------------------------------------
Name: Christopher G. Farrand
Title: Vice President
RIO ESCONDIDO COAL CORP.
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
SENECA COAL COMPANY
By: /s/ Christopher G. Farrand
------------------------------------
Name: Christopher G. Farrand
Title: Vice President
<PAGE>
SENTRY MINING COMPANY
By: /s/ James C. Sevem
------------------------------------
Name: James C. Sevem
Title: Vice President
SNOWBERRY LAND COMPANY
By: /s/ James C. Sevem
------------------------------------
Name: James C. Sevem
Title: Vice President
STERLING SMOKELESS COAL COMPANY
By: /s/ James C. Sevem
------------------------------------
Name: James C. Sevem
Title: Vice President
THOROUGHBRED, L.L.C.
By: Peabody Holding Company
By: /s/ James C. Sevem
------------------------------------
Name: James C. Sevem
Title: Vice President
P&L COAL HOLDINGS CORPORATION
By: /s/ Felix Herlihy
------------------------------------
Name: Felix Herlihy
Title: Vice President, Treasurer and
Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
as Senior Subordinated Note Trustee
By: /s/ Philip G. Kane, Jr.
------------------------------------
Name: Philip G. Kane, Jr.
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF SENIOR NOTE GUARANTORS
The following schedule lists each Senior Note Guarantor under the
Senior Note Indenture as of May 19, 1998:
Arid Operations Inc., a Delaware corporation.
Darius Gold Mine, Inc., a Delaware corporation.
1. Gold Fields Chile, S.A., a Delaware corporation.
Gold Fields Mining Corporation, a Delaware corporation.
2. Gold Fields Operating Co.- Ortiz, a Delaware corporation.
3. Peabody America, Inc., a Delaware corporation.
4. Peabody Holding Company, Inc., a New York corporation.
5. Affinity Mining Company, a West Virginia corporation.
6. Big Sky Coal Company, a Delaware corporation.
7. Blackrock First Capital Corporation, a West Virginia corporation.
8. Bluegrass Coal Company, a Delaware corporation.
9. Caballo Coal Company, a Delaware corporation.
10.Charles Coal Company, a Delaware corporation.
11.Coal Properties Corp., a Delaware corporation.
12.Cook Mountain Coal Company, a Delaware corporation.
13.Cottonwood Land Company, a Delaware corporation.
14.EACC Camps, Inc., a West Virginia corporation.
15.Eastern Associated Coal Corp, a West Virginia corporation.
16.Eastern Royalty Corp., a Delaware corporation.
17.Grand Eagle Mining, Inc., a Kentucky corporation.
18.Hayden Gulch Terminal, Inc., a Delaware corporation.
19.Independence Material Handling Company, a Delaware corporation.
20.Interior Holdings Corp., a Delaware corporation.
21.James River Coal Terminal Company, a Delaware corporation.
22.Juniper Coal Company, a Delaware corporation.
23.Kayenta Mobile Home Park, Inc., a Delaware corporation.
24.Martinka Coal Company, a Delaware corporation.
25.Midco Supply and Equipment Corporation, an Illinois corporation.
26.Midwest Coal Resources, Inc., a Delaware corporation.
27.Mountain View Coal Company, a Delaware corporation.
<PAGE>
28.North Page Coal Corp., a West Virginia corporation.
29.Ohio County Coal Company, a Kentucky corporation.
30.Patriot Coal Company, L.P., a Delaware limited partnership.
31.Peabody COALSALES Company, a Delaware corporation.
32.Peabody COALTRADE, Inc., a Delaware corporation.
33.Peabody Coal Company, a Delaware corporation.
34.Peabody Development Company, a Delaware corporation.
35.Peabody Energy Solutions, Inc., a Delaware corporation.
36.Peabody Natural Resources Company, a Delaware general partnership.
37.Peabody Terminals, Inc., a Delaware corporation.
38.Peabody Venezuela Coal Corp., a Delaware corporation.
39.Peabody Western Coal Company, a Delaware corporation.
40.Pine Ridge Coal Company, a Delaware corporation.
41.Powder River Coal Company, a Delaware corporation.
42.Rio Escondido Coal Corp., a Delaware corporation.
43.Seneca Coal Company, a Delaware corporation.
44.Sentry Mining Company, a Delaware corporation.
45.Snowberry Land Company, a Delaware corporation.
46.Sterling Smokeless Coal Company, a West Virginia corporation.
47.Thoroughbred, L.L.C., a Delaware limited liability company.
48.Colony Bay Coal Company, a West Virginia partnership
<PAGE>
EXHIBIT 4.5
NOTATION OF SENIOR SUBSIDIARY GUARANTEE
For value received, each Senior Note Guarantor (which term includes
any successor Person under the Senior Note Indenture) has, jointly and
severally, unconditionally guaranteed, to the extent set forth in the Senior
Note Indenture and subject to the provisions in the Senior Note Indenture dated
as of May 19, 1998 (the "SUPPLEMENTAL SENIOR NOTE INDENTURE") among P&L Coal
Holdings Corporation, the Senior Note Guarantors listed on Schedule I thereto
and State Street Bank and Trust Company, as Senior Note Trustee (the "SENIOR
NOTE TRUSTEE"), (a) the due and punctual payment of the principal of, premium,
if any, and interest on the Senior Notes (as defined in the Senior Note
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 Senior Note Trustee
all in accordance with the terms of the Senior Note Indenture and (b) in case of
any extension of time of payment or renewal of any Senior 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 Senior
Note Guarantors to the Holders of Senior Notes and to the Senior Note Trustee
pursuant to the Senior Subsidiary Guarantee and the Senior Note Indenture are
expressly set forth in Article 10 of the Senior Note Indenture and reference is
hereby made to the Senior Note Indenture for the precise terms of the Senior
Subsidiary Guarantee. Each Holder of a Senior Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Senior Note Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Senior Note Indenture and (c) appoints the Senior Note Trustee attorney-in-fact
of such Holder for such purpose; provided, however, that the Indebtedness
evidenced by this Senior Subsidiary Guarantee shall cease to be so subordinated
and subject in right of payment upon any defeasance of this Senior Note in
accordance with the provisions of the Senior Note Indenture.
(Signatures on following page)
<PAGE>
ARID OPERATIONS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
DARIUS GOLD MINE, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
COLONY BAY COAL COMPANY
By: Charles Coal Company
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
GOLD FIELDS CHILE, S.A.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
GOLD FIELDS MINING CORPORATION
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
GOLD FIELDS OPERATING CO.-ORTIZ
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY AMERICA, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY HOLDING COMPANY, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
AFFINITY MINING COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
BIG SKY COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
BLACKROCK FIRST CAPITAL CORPORATION
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
BLUEGRASS COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
CABALLO COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
CHARLES COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
COAL PROPERTIES CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
COOK MOUNTAIN COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
COTTONWOOD LAND COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
EACC CAMPS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
EASTERN ASSOCIATED COAL CORP
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
EASTERN ROYALTY CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
GRAND EAGLE MINING, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
HAYDEN GULCH TERMINAL, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
INDEPENDENCE MATERIAL HANDLING
COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
INTERIOR HOLDINGS CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
JAMES RIVER COAL TERMINAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
JUNIPER COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
KAYENTA MOBILE HOME PARK, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
MARTINKA COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
MIDCO SUPPLY AND EQUIPMENT CORPORATION
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
MIDWEST COAL RESOURCES, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
MOUNTAIN VIEW COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
NORTH PAGE COAL CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
OHIO COUNTY COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PATRIOT COAL COMPANY L.P.
By: Bluegrass Coal Company
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY COALSALES COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
PEABODY COALTRADE, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY DEVELOPMENT COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY ENERGY SOLUTIONS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY NATURAL RESOURCES COMPANY
By: Gold Fields Mining Corp.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
PEABODY TERMINALS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY VENEZUELA COAL CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY WESTERN COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PINE RIDGE COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
POWDER RIVER COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
RIO ESCONDIDO COAL CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
SENECA COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
SENTRY MINING COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
SNOWBERRY LAND COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
STERLING SMOKELESS COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
THOROUGHBRED, L.L.C.
By: Peabody Holding Company
By: /s/ Christopher G. Farrand
---------------------------------
Name: Christopher G. Farrand
Title: Vice President
P & L COAL HOLDINGS CORPORATION
By: /s/ Felix Herlihy
---------------------------------
Name: Felix Herlihy
Title: Vice President, Treasurer and
Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
as Senior Note Trustee
By: /s/ Philip G. Kane, Jr.
---------------------------------
Name: Philip G. Kane, Jr.
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF SENIOR NOTE GUARANTORS
The following schedule lists each Senior Note Guarantor under the
Senior Note Indenture as of May 19, 1998:
Arid Operations Inc., a Delaware corporation.
Darius Gold Mine, Inc., a Delaware corporation.
1. Gold Fields Chile, S.A., a Delaware corporation.
Gold Fields Mining Corporation, a Delaware corporation.
2. Gold Fields Operating Co.- Ortiz, a Delaware corporation.
3. Peabody America, Inc., a Delaware corporation.
4. Peabody Holding Company, Inc., a New York corporation.
5. Affinity Mining Company, a West Virginia corporation.
6. Big Sky Coal Company, a Delaware corporation.
7. Blackrock First Capital Corporation, a West Virginia corporation.
8. Bluegrass Coal Company, a Delaware corporation.
9. Caballo Coal Company, a Delaware corporation.
10.Charles Coal Company, a Delaware corporation.
11.Coal Properties Corp., a Delaware corporation.
12.Cook Mountain Coal Company, a Delaware corporation.
13.Cottonwood Land Company, a Delaware corporation.
14.EACC Camps, Inc., a West Virginia corporation.
15.Eastern Associated Coal Corp, a West Virginia corporation.
16.Eastern Royalty Corp., a Delaware corporation.
17.Grand Eagle Mining, Inc., a Kentucky corporation.
18.Hayden Gulch Terminal, Inc., a Delaware corporation.
19.Independence Material Handling Company, a Delaware corporation.
20.Interior Holdings Corp., a Delaware corporation.
21.James River Coal Terminal Company, a Delaware corporation.
22.Juniper Coal Company, a Delaware corporation.
23.Kayenta Mobile Home Park, Inc., a Delaware corporation.
24.Martinka Coal Company, a Delaware corporation.
25.Midco Supply and Equipment Corporation, an Illinois corporation.
26.Midwest Coal Resources, Inc., a Delaware corporation.
27.Mountain View Coal Company, a Delaware corporation.
<PAGE>
28.North Page Coal Corp., a West Virginia corporation.
29.Ohio County Coal Company, a Kentucky corporation.
30.Patriot Coal Company, L.P., a Delaware limited partnership.
31.Peabody COALSALES Company, a Delaware corporation.
32.Peabody COALTRADE, Inc., a Delaware corporation.
33.Peabody Coal Company, a Delaware corporation.
34.Peabody Development Company, a Delaware corporation.
35.Peabody Energy Solutions, Inc., a Delaware corporation.
36.Peabody Natural Resources Company, a Delaware general partnership.
37.Peabody Terminals, Inc., a Delaware corporation.
38.Peabody Venezuela Coal Corp., a Delaware corporation.
39.Peabody Western Coal Company, a Delaware corporation.
40.Pine Ridge Coal Company, a Delaware corporation.
41.Powder River Coal Company, a Delaware corporation.
42.Rio Escondido Coal Corp., a Delaware corporation.
43.Seneca Coal Company, a Delaware corporation.
44.Sentry Mining Company, a Delaware corporation.
45.Snowberry Land Company, a Delaware corporation.
46.Sterling Smokeless Coal Company, a West Virginia corporation.
47.Thoroughbred, L.L.C., a Delaware limited liability company.
48.Colony Bay Coal Company, a West Virginia partnership
<PAGE>
EXHIBIT 4.6
NOTATION OF SUBORDINATED SUBSIDIARY GUARANTEE
For value received, each Senior Subordinated Note Guarantor (which
term includes any successor Person under the Senior Subordinated Note Indenture)
has, jointly and severally, unconditionally guaranteed, to the extent set forth
in the Senior Subordinated Note Indenture and subject to the provisions in the
Senior Subordinated Note Indenture dated as of May 19, 1998 (the "SUPPLEMENTAL
SENIOR SUBORDINATED NOTE INDENTURE") among P&L Coal Holdings Corporation, the
Senior Subordinated Note Guarantors listed on Schedule I thereto and State
Street Bank and Trust Company, as Senior Subordinated Note Trustee (the "SENIOR
SUBORDINATED NOTE TRUSTEE"), (a) the due and punctual payment of the principal
of, premium, if any, and interest on the Senior Subordinated Notes (as defined
in the Senior Subordinated Note 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 Senior Subordinated Note Trustee all in accordance with the
terms of the Senior Subordinated Note Indenture and (b) in case of any extension
of time of payment or renewal of any Senior Subordinated 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 Senior
Subordinated Note Guarantors to the Holders of Senior Subordinated Notes and to
the Senior Subordinated Note Trustee pursuant to the Subordinated Subsidiary
Guarantee and the Senior Subordinated Note Indenture are expressly set forth in
Article 11 of the Senior Subordinated Note Indenture and reference is hereby
made to the Senior Subordinated Note Indenture for the precise terms of the
Subordinated Subsidiary Guarantee. Each Holder of a Senior Subordinated Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Senior Subordinated Note Trustee, on behalf of such
Holder, to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Senior Subordinated Note Indenture and (c)
appoints the Senior Subordinated Note Trustee attorney-in-fact of such Holder
for such purpose; provided, however, that the Indebtedness evidenced by this
Subordinated Subsidiary Guarantee shall cease to be so subordinated and subject
in right of payment upon any defeasance of this Senior Subordinated Note in
accordance with the provisions of the Senior Subordinated Note Indenture.
(Signature on following page)
<PAGE>
ARID OPERATIONS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
DARIUS GOLD MINE, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
COLONY BAY COAL COMPANY
By: Charles Coal Company
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
GOLD FIELDS CHILE, S.A.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
GOLD FIELDS MINING CORPORATION
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
GOLD FIELDS OPERATING CO.-ORTIZ
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY AMERICA, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY HOLDING COMPANY, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
AFFINITY MINING COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
BIG SKY COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
BLACKROCK FIRST CAPITAL CORPORATION
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
BLUEGRASS COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
CABALLO COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
CHARLES COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
COAL PROPERTIES CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
COOK MOUNTAIN COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
COTTONWOOD LAND COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
EACC CAMPS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
EASTERN ASSOCIATED COAL CORP
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
EASTERN ROYALTY CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
GRAND EAGLE MINING, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
HAYDEN GULCH TERMINAL, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
INDEPENDENCE MATERIAL HANDLING
COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
INTERIOR HOLDINGS CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
JAMES RIVER COAL TERMINAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
JUNIPER COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
KAYENTA MOBILE HOME PARK, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
MARTINKA COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
MIDCO SUPPLY AND EQUIPMENT
CORPORATION
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
MIDWEST COAL RESOURCES, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
MOUNTAIN VIEW COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
NORTH PAGE COAL CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
OHIO COUNTY COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PATRIOT COAL COMPANY L.P.
By: Bluegrass Coal Company
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY COALSALES COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
PEABODY COALTRADE, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY DEVELOPMENT COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY ENERGY SOLUTIONS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY NATURAL RESOURCES COMPANY
By: Gold Fields Mining Corp.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
PEABODY TERMINALS, INC.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY VENEZUELA COAL CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PEABODY WESTERN COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
PINE RIDGE COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
POWDER RIVER COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
RIO ESCONDIDO COAL CORP.
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
SENECA COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
SENTRY MINING COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
SNOWBERRY LAND COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
STERLING SMOKELESS COAL COMPANY
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
<PAGE>
THOROUGHBRED, L.L.C.
By: Peabody Holding Company
By: /s/ James C. Sevem
---------------------------------
Name: James C. Sevem
Title: Vice President
P&L COAL HOLDINGS CORPORATION
By: /s/ Felix Herlihy
---------------------------------
Name: Felix Helihy
Title: Vice President, Treasurer and
Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
as Senior Subordinated Note Trustee
By: /s/ Philip G. Kane, Jr.
---------------------------------
Name: Philip G. Kane, Jr.
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF SENIOR NOTE GUARANTORS
The following schedule lists each Senior Note Guarantor under the
Senior Note Indenture as of May 19, 1998:
Arid Operations Inc., a Delaware corporation.
Darius Gold Mine, Inc., a Delaware corporation.
1. Gold Fields Chile, S.A., a Delaware corporation.
Gold Fields Mining Corporation, a Delaware corporation.
2. Gold Fields Operating Co.- Ortiz, a Delaware corporation.
3. Peabody America, Inc., a Delaware corporation.
4. Peabody Holding Company, Inc., a New York corporation.
5. Affinity Mining Company, a West Virginia corporation.
6. Big Sky Coal Company, a Delaware corporation.
7. Blackrock First Capital Corporation, a West Virginia corporation.
8. Bluegrass Coal Company, a Delaware corporation.
9. Caballo Coal Company, a Delaware corporation.
10.Charles Coal Company, a Delaware corporation.
11.Coal Properties Corp., a Delaware corporation.
12.Cook Mountain Coal Company, a Delaware corporation.
13.Cottonwood Land Company, a Delaware corporation.
14.EACC Camps, Inc., a West Virginia corporation.
15.Eastern Associated Coal Corp, a West Virginia corporation.
16.Eastern Royalty Corp., a Delaware corporation.
17.Grand Eagle Mining, Inc., a Kentucky corporation.
18.Hayden Gulch Terminal, Inc., a Delaware corporation.
19.Independence Material Handling Company, a Delaware corporation.
20.Interior Holdings Corp., a Delaware corporation.
21.James River Coal Terminal Company, a Delaware corporation.
22.Juniper Coal Company, a Delaware corporation.
23.Kayenta Mobile Home Park, Inc., a Delaware corporation.
24.Martinka Coal Company, a Delaware corporation.
25.Midco Supply and Equipment Corporation, an Illinois corporation.
26.Midwest Coal Resources, Inc., a Delaware corporation.
27.Mountain View Coal Company, a Delaware corporation.
<PAGE>
28.North Page Coal Corp., a West Virginia corporation.
29.Ohio County Coal Company, a Kentucky corporation.
30.Patriot Coal Company, L.P., a Delaware limited partnership.
31.Peabody COALSALES Company, a Delaware corporation.
32.Peabody COALTRADE, Inc., a Delaware corporation.
33.Peabody Coal Company, a Delaware corporation.
34.Peabody Development Company, a Delaware corporation.
35.Peabody Energy Solutions, Inc., a Delaware corporation.
36.Peabody Natural Resources Company, a Delaware general partnership.
37.Peabody Terminals, Inc., a Delaware corporation.
38.Peabody Venezuela Coal Corp., a Delaware corporation.
39.Peabody Western Coal Company, a Delaware corporation.
40.Pine Ridge Coal Company, a Delaware corporation.
41.Powder River Coal Company, a Delaware corporation.
42.Rio Escondido Coal Corp., a Delaware corporation.
43.Seneca Coal Company, a Delaware corporation.
44.Sentry Mining Company, a Delaware corporation.
45.Snowberry Land Company, a Delaware corporation.
46.Sterling Smokeless Coal Company, a West Virginia corporation.
47.Thoroughbred, L.L.C., a Delaware limited liability company.
48.Colony Bay Coal Company, a West Virginia partnership
<PAGE>
EXHIBIT 4.7
Execution Copy
================================================================================
SENIOR NOTE
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 18, 1998
BY AND BETWEEN
P&L COAL HOLDINGS CORPORATION,
AND
LEHMAN BROTHERS INC.
===============================================================================
<PAGE>
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of May 18, 1998, by and between P&L Coal Holdings Corporation, a
Delaware corporation (the "COMPANY"), and Lehman Brothers Inc. (the "INITIAL
PURCHASER") who has agreed to purchase the Company's 8-7/8% Series A Senior
Notes due 2008 (the "SERIES A SENIOR NOTES") pursuant to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May 13,
1998, (the "PURCHASE AGREEMENT"), by and between the Company and the Initial
Purchaser relating to the purchase by the Initial Purchaser of the Company's
Series A Senior Notes and the Company's 9-5/8% Senior Subordinated Notes due
2008 (the "SERIES A SENIOR SUBORDINATED NOTES").
In order to induce the Initial Purchaser to purchase the Series A Senior
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser set forth in Section 7 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture, dated May 18, 1998, relating to
the Series A Senior Notes and the Series B Senior Notes (the "SENIOR NOTE
INDENTURE") between the Company and the trustee (the "SENIOR NOTE TRUSTEE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
AFFILIATED MARKET MAKER: A Broker-Dealer who is deemed to be an Affiliate
of the Company.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes as defined in the Senior Note
Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series B
Senior Notes to be issued in the Exchange Offer, (b) the maintenance of such
Exchange Offer Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the period required pursuant
to Section 3(b) hereof and (c) the delivery by the Company to the Registrars
under the Senior Note Indenture of Series B Senior Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Senior Notes
tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
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EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Senior Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of the Series A Senior Notes that are tendered by such Holders in connection
with such exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser proposes
to sell the Series A Senior Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act and pursuant to Regulation S
under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and the
Guarantors relating to (a) an offering of Series B Senior Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SERIES B SENIOR NOTES: The Company's 8-7/8% Series B Senior Notes due 2008
to be issued pursuant to the Senior Note Indenture: (i) in the Exchange Offer
or (ii) as contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Senior Note Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Senior Note, until the
earliest to occur of (i) the date on which such Series A Senior Note is
exchanged in the Exchange Offer for a Series B Senior
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<PAGE>
Note which is entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (ii) the date on
which such Series A Senior Note has been disposed of in accordance with a Shelf
Registration Statement (and the purchasers thereof have been issued Series B
Senior Notes), or (iii) the date on which such Series A Senior Note is
distributed to the public pursuant to Rule 144 under the Act and each (B) Series
B Senior Note held by a Broker Dealer until the date on which such Series B
Senior Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company shall (i) cause the Exchange Offer Registration Statement to
be filed with the Commission as soon as practicable after the Closing Date, but
in no event later than 90 days after the Closing Date (such 90/th/ day being the
"FILING DEADLINE"), (ii) use its best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, but in
no event later than 180 days after the Closing Date (such 180/th/ day being the
"EFFECTIVENESS DEADLINE"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Series B Senior Notes
to be made under the Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of
such Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Series B Senior Notes to be offered in exchange for the
Series A Senior Notes that are Transfer Restricted Securities and (ii) resales
of Series B Senior Notes by Broker-Dealers that tendered into the Exchange Offer
Series A Senior Notes that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than
Series A Senior Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) below.
(b) The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Series B Senior
Notes shall be included in the Exchange Offer Registration Statement. The
Company shall use its best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 business days thereafter
(such 30/th/ day being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer
3
<PAGE>
Restricted Securities that were acquired for the account of such Broker-Dealer
as a result of market-making activities or other trading activities (other than
Series A Senior Notes acquired directly from the Company or any Affiliate of the
Company), may exchange such Transfer Restricted Securities pursuant to the
Exchange Offer. Such "Plan of Distribution" section shall also contain all
other information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such Broker-Dealer, except
to the extent required by the Commission as a result of a change in policy,
rules or regulations after the date of this Agreement. See the Shearman &
Sterling no-action letter (available July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Senior Notes received by such Broker-Dealer in the Exchange Offer, the Company
shall permit the use of the Prospectus contained in the Exchange Offer
Registration Statement by such Broker-Dealer to satisfy such prospectus delivery
requirement. To the extent necessary to ensure that the prospectus contained in
the Exchange Offer Registration Statement is available for sales of Series B
Senior Notes by Broker-Dealers, the Company and the Guarantors agree to use its
best efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented, amended and current as required by and subject to the
provisions of Section 6(a) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of one year from
the Consummation Deadline or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
sold pursuant thereto. The Company shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers, promptly upon request,
and in no event later than one day after such request, at any time during such
period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
------------------
applicable law or Commission policy (after the Company has complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Series B Senior Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Series A
Senior Notes acquired directly from the Company or any of its Affiliates, then
the Company shall:
(x) cause to be filed, on or prior to 90 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above
and (ii) the date on which the Company receives the notice specified in
clause (a)(ii) above, (such earlier date, the "FILING DEADLINE"), a shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "SHELF
REGISTRATION STATEMENT")), relating to all Transfer Restricted Securities,
and
(y) shall use its best efforts to cause such Shelf Registration
Statement to become effective on or prior to 180 days after the Filing
Deadline for the Shelf Registration Statement (such 180/th/ day the
"EFFECTIVENESS DEADLINE").
4
<PAGE>
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., clause
(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company shall
use its best efforts to keep any Shelf Registration Statement required by this
Section 4(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Sections 6(b) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for as
long as the Initial Purchaser is deemed to be an affiliate of the Company but in
no event less than the shorter of (i) two years (as extended pursuant to Section
6(c)(i)) following the Closing or (ii) the date on which all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto.
Notwithstanding the foregoing, the Company shall be entitled to suspend the
rights of selling Holders to make sales pursuant to any Shelf Registration
Statement otherwise required to be kept effective by it hereunder (but the
duration of such suspension may not exceed the earlier to occur of (w) 15 days
after the cessation of the circumstances described below or (x) 120 days after
the date of the determination of the Board of Directors of the Company referred
to below, and the duration of such suspension shall be excluded from the
calculation of the period specified in this paragraph), if the Board of
Directors of the Company determines in good faith that there is a material
undisclosed development in the business or affairs of the Company (including any
pending or proposed financing, recapitalization, acquisition or disposition),
the disclosure of which at such time could be adverse to the Company's
interests. If the Company shall so suspend the effectiveness of a Shelf
Registration Statement, it shall, as promptly as possible, notify the selling
Holders of such determination, and the selling Holders shall have the right to
receive an extension of the registration period equal to the number of days of
the suspension.
(b) Provision by Holders of Certain Information in Connection with the
------------------------------------------------------------------
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
- ----------------------------
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable or has
so complied, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein and agrees to
comply with Regulation M under the Exchange Act. The Company may exclude from
such registration the Transfer Restricted Securities of any Holder who
unreasonably fails to furnish such information. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information or has so complied. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared
5
<PAGE>
effective by the Commission on or prior to the applicable Effectiveness
Deadline, (iii) the Exchange Offer has not been Consummated on or prior to the
Consummation Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective immediately (each such
event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), then
the Company hereby agrees to pay to each Holder of Transfer Restricted
Securities affected thereby liquidated damages in an amount equal to $.05 per
week per $1,000 principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration Default continues
for the first 90-day period immediately following the occurrence of such
Registration Default. The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.50
per week per $1,000 principal amount of Transfer Restricted Securities; provided
that the Company shall in no event be required to pay liquidated damages for
more than one Registration Default at any given time. Notwithstanding anything
to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Senior Note
Indenture, on each Interest Payment Date, as more fully set forth in the Senior
Note Indenture and the Series A Senior Notes. Notwithstanding the fact that any
securities for which liquidated damages are due cease to be Transfer Restricted
Securities, all obligations of the Company to pay liquidated damages with
respect to securities shall survive until such time as such obligations with
respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
-------------------------------------
Exchange Offer, the Company shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use its best efforts to effect such exchange and to
permit the resale of the Series B Senior Notes by Broker-Dealers that tendered
in the Exchange Offer and Series A Senior Notes that such Broker-Dealer acquired
for its own account as a result of its market making activities or other trading
activities (other than Series A Senior Notes acquired directly from the Company
or any of its Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the Company
to Consummate an Exchange Offer for such Transfer Restricted Securities.
The Company hereby agrees to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Company
6
<PAGE>
and the Guarantors hereby agree to take all such other actions as may be
reasonably requested by the Commission or otherwise required in connection
with the issuance of such decision, including without limitation (A)
participating in telephonic conferences with the Commission, (B) delivering
to the Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Series B Senior Notes to be issued in the Exchange Offer and (C) it is
acquiring the Series B Senior Notes in its ordinary course of business. As
a condition to its participation in the Exchange Offer, each Holder using
the Exchange Offer to participate in a distribution of the Series B Senior
Notes shall acknowledge and agree that, if the resales are of Series B
Senior Notes obtained by such Holder in exchange for Series A Senior Notes
acquired directly from the Company or an Affiliate thereof, it (1) could
not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Morgan Stanley and
------------------
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
--------- ----------------------------------
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
-------------------
(including, if applicable, any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be covered by
an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
-------------
Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
-------------------- ----------------------------
(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action
-------------------
letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the Series B Senior Notes to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Senior Notes in its ordinary course of business and
has no arrangement or understanding with any Person to participate in the
distribution of the Series B Senior Notes received in the Exchange Offer
and (C) any other undertaking or representation reasonably required by the
Commission as set forth in any no-action letter obtained pursuant to clause
(i) above, if applicable.
(b) Shelf Registration Statement.
----------------------------
In connection with the Shelf Registration Statement, the Company shall:
(i) comply with all the provisions of Section 6(c) below and use its
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance
7
<PAGE>
with the intended method or methods of distribution thereof (as indicated
in the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale
of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Series A
Senior Notes covered by any Shelf Registration Statement contemplated by
this Agreement, Series B Senior Notes having an aggregate principal amount
equal to the aggregate principal amount of Series A Senior Notes sold
pursuant to the Shelf Registration Statement and surrendered to the Company
for cancellation; the Company shall register Series B Senior Notes on the
Shelf Registration Statement for this purpose and issue the Series B Senior
Notes to the purchaser(s) of securities subject to the Shelf Registration
Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement and
------------------
any related Prospectus required by this Agreement, the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable.
Notwithstanding the foregoing, the Company shall be entitled to suspend the
rights of selling Holders to make sales pursuant to any Registration
Statement otherwise required to be kept effective by it hereunder (but the
duration of such suspension may not exceed the earlier to occur of (w) 15
days after the cessation of the circumstances described below or (x) 120
days after the date of the determination of the Board of Directors of the
Company referred to below, and the duration of such suspension shall be
excluded from the calculation of the period specified in Section 4(a)), if
the Board of Directors of the Company determines in good faith that there
is a material undisclosed development in the business or affairs of the
Company (including any pending or proposed financing, recapitalization,
acquisition or disposition), the disclosure of which at such time could be
adverse to the Company's interests. If the Company shall so suspend the
effectiveness of a Registration Statement, it shall, as promptly as
possible, notify the selling Holders of such determination, and the selling
Holders shall have the right to receive an extension of the registration
period equal to the number of days of the suspension. Upon the occurrence
of any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain an untrue statement of material
fact or omit to state any material fact necessary to make the statements
therein not misleading or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use its best efforts to cause such amendment to be declared
effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act in
a timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
8
<PAGE>
(iii) advise each Holder and the Initial Purchaser who is required to
deliver a prospectus in connection with sales or market making activities
(an "AFFILIATED MARKET MAKER") promptly and, if requested by such Person,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder and each Affiliated Market Maker in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Persons in connection with such
sale, if any, for a period of at least three Business Days, and the Company
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Persons shall reasonably object within three Business Days after the
receipt thereof. Such Person shall be deemed to have reasonably objected
to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact necessary
to make the statements therein not misleading or fails to comply with the
applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each Holder and each Affiliated Market
Maker in connection with such exchange or sale, if any, make the Company's
representatives available for discussion of such document and other
customary due
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<PAGE>
diligence matters, and include such information in such document prior to
the filing thereof as such Persons may reasonably request;
(vii) make available, at reasonable times during normal business
hours, for inspection by each Holder and each Affiliated Market Maker and
any attorney or accountant retained by such Persons, all financial and
other records, pertinent corporate documents of the Company and the
Guarantors and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Persons, attorney
or accountant in connection with such Registration Statement or any post-
effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness;
(viii) if requested by any Holders in connection with such exchange
or sale or any Affiliated Market Maker, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or post-
effective amendment if necessary, such information as such Persons may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities and the use of the Registration Statement or
Prospectus for market making activities; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such exchange or
sale and each Affiliated Market Maker, without charge, at least one copy of
the Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each Holder and each Affiliated Market Maker,
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling Person in connection with the offering and the sale
of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto and all market making activities of such
Affiliated Market Maker, as the case may be;
(xi) upon the request of any Holder, enter into such agreements
(including underwriting agreements in usual and customary form) and make
such representations and warranties which, in the opinion of the Company,
are reasonably required and take all such other reasonable actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Shelf Registration
Statement contemplated by this Agreement as may be reasonably requested by
any Holder in connection with any sale or resale pursuant to any Shelf
Registration Statement. In such connection, and also in connection with
market making activities by any Affiliated Market Maker, the Company shall:
(A) upon request of any Person holding at least $25.0 million
principal amount of Transfer Restricted Securities, furnish (or in the
case of paragraphs (2) and (3), use its best efforts to cause to be
furnished) to each Person, upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated such date, signed on behalf of
the Company and each of the Guarantors by (x) the President or
any Vice President and (y) a principal financial or accounting
officer of the Company and such Guarantor, confirming, as of the
date thereof, the matters set forth in Sections 7(l), 7(n) and
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<PAGE>
7(o) of the Purchase Agreement and such other similar matters as
such Person may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement, of counsel for the Company covering
matters similar to those set forth in paragraph (d) of Section 7
of the Purchase Agreement and in any event including a statement
to the effect that such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the independent public accountants for the
Company and has considered the matters required to be stated
therein and the statements contained therein, although such
counsel has not independently verified the accuracy, completeness
or fairness of such statements; and that such counsel advises
that, on the basis of the foregoing, no facts came to such
counsel's attention that caused such counsel to believe that the
Shelf Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that
the Prospectus contained in such Registration Statement as of its
date contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in the
Shelf Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter, dated the date of
effectiveness of the Shelf Registration Statement, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 7(j) of the Purchase
Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such Persons to evidence compliance with the
matters covered in clause (A) above and with any customary conditions
contained in the any agreement entered into by the Company and the
Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to register or
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
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<PAGE>
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale
of Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xv) obtain a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Senior Note Trustee under
the Senior Note Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with The
Depository Trust Company;
(xvi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) covering a twelve-
month period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule 158 under the
Act);
(xvii) cause the Senior Note Indenture to be qualified under the TIA
not later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with the
Senior Note Trustee and the Holders to effect such changes to the Senior
Note Indenture as may be reasonably required for such Senior Note Indenture
to be so qualified in accordance with the terms of the TIA; and execute and
use its best efforts to cause the Senior Note Trustee to execute, all
documents that may be reasonably required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Senior Note Indenture to be so qualified in a timely manner;
and
(xviii) provide promptly to each Holder and Affiliated Market Maker,
upon request, each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from the
Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "SUSPENSION NOTICE"), such Person will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until (i) such Person has received copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(iv)
hereof, or (ii) such Person is advised in writing by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "RECOMMENCEMENT DATE"). Each Person receiving a Suspension Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Person's possession which have been replaced
by the Company with more recently dated Prospectuses or (ii) deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Person's possession of the Prospectus covering such Transfer
Restricted Securities that was current
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<PAGE>
at the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by a number of days equal to the number of days
in the period from and including the date of delivery of the Suspension Notice
to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Series B
Senior Notes to be issued in the Exchange Offer and printing of Prospectuses
whether for exchanges, sales, market making or otherwise), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company and the Guarantors; and (v) all fees and disbursements of
independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities who are
tendering Series A Senior Notes into in the Exchange Offer and/or selling or
reselling Series A Senior Notes or Series B Senior Notes pursuant to the "Plan
of Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Latham & Watkins,
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of the Series B Senior Notes or of the registered Series A Senior
Notes, or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to any of the
Holders furnished in writing to the
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<PAGE>
Company by any of the Holders; and provided that with respect to any such untrue
--------
statement or omission made in a preliminary prospectus, the foregoing indemnity
shall not inure to the benefit of any Holder (or any person who controls such
Holder or any officer or director thereof) from whom the person asserting such
loss, claim, damage, liability or action purchased the Series B Senior
Subordinated Notes, to the extent that such sale was an initial resale by such
Holder and any such loss, claim, damage, liability or action of such Holder is a
result of the fact that both (i) to the extent required by applicable law, a
copy of the Prospectus, as the same may be amended or supplemented, was not sent
or given to such person at or prior to the written confirmation of the sale of
such Series B Senior Subordinated Notes to such person, and (ii) the untrue
statement or omission in the preliminary prospectus was corrected in the
Prospectus unless, in either case, such failure to deliver the Prospectus was a
result of non-compliance by the Company with Section 6(c)(i).
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors and
officers, and each Person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company to the same extent
as the foregoing indemnity from the Company set forth in section (a) above, but
only with reference to information relating to such Holder furnished in writing
to the Company by such Holder expressly for use in any Registration Statement.
In no event shall any Holder, its directors, officers or any Person who controls
such Holder be liable or responsible for any amount in excess of the amount by
which the total amount received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i)
the amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages that such Holder, its directors, officers or any
Person who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all reasonable fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all indemnified parties and all
such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by a majority of the Holders, in the case of the
parties indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant
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<PAGE>
to Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the
settlement is entered into more than twenty business days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the reasonable fees and expenses of counsel (in any case where such
reasonable fees and expenses are at the expense of the indemnifying party) and,
prior to the date of such settlement, the indemnifying party shall have failed
to comply with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Holders, on the other hand, from their sale of Transfer Restricted
Securities or (ii) if the allocation provided by clause 8(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holder, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and judgments referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total proceeds received by such Holder with respect to the sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i)
the amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of
15
<PAGE>
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Holders' obligations
to contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
(e) The Company agrees that the indemnity and contribution provisions of
this Section 8 shall apply to Affiliated Market Makers to the same extent, on
the same conditions, as they apply to Holders.
SECTION 9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledge and agree that any failure by the
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Company to comply with its obligations under Sections 3 and 4 hereof may result
in material irreparable injury to the Initial Purchaser or the Holders or
Affiliated Market Makers for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchaser or any Holder or Affiliated
Market Makers may obtain such relief as may be required to specifically enforce
the Company's obligations under Sections 3 and 4 hereof. The Company further
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
--------------------------
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly
16
<PAGE>
the rights of other Holders whose Transfer Restricted Securities are not being
tendered pursuant to such Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders and Affiliated Market Makers
-----------------------
shall be third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchaser, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders and Affiliated Market Makers hereunder.
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Senior Note Indenture, with a copy to the Registrar
under the Senior Note Indenture; and
(ii) if to the Company:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, MO 63101-1826
Telecopier No.: 314-342-3449
Attention: Chief Financial Officer
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
Telecopier No.: 212-455-2502
Attention: Rise B. Norman
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Senior Note Trustee
at the address specified in the Senior Note Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered (in the form attached
hereto as Exhibit A) and shall be addressed to: Lehman Brothers Inc. Attention:
Randy Stuzin, 3 World Financial Center, 200 Vesey Street, New York, New York
10285.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof
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or of the Purchase Agreement or the Senior Note Indenture. If any transferee of
any Holder shall acquire Transfer Restricted Securities in any manner, whether
by operation of law or otherwise, such Transfer Restricted Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Transfer Restricted Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(Signature page(s) follow)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
P&L Coal Holdings Corporation
By:/s/ Felix Herlihy
__________________________________
Name: Felix Herlihy
Title: Vice President, Treasurer and
Assistant Secretary
Accepted:
Lehman Brothers Inc.
By:/s/ Alexander V. Ponomarenko
____________________________
Name: Alexander V. Ponomarenko
Title: Authorized Signatory
Registration Rights Agreement signature page(s)-1
<PAGE>
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Lehman Brothers, Inc.
3 World Financial Center
200 Vesey Street
New York, New York 10285
Attention: Randy Stuzin
Fax: (212) 526-4911
From: P&L Coal Holdings Corporation
$400,000,000 8-7/8% Senior Notes due 2008
Date:____, 199_
For your information only (NO ACTION REQUIRED):
Today, ______, 199_, we filed [an A/B Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within __
business days of the date hereof.
<PAGE>
EXHIBIT 4.8
EXECUTION COPY
================================================================================
SENIOR SUBORDINATED NOTE
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 18, 1998
BY AND BETWEEN
P&L COAL HOLDINGS CORPORATION,
and
LEHMAN BROTHERS INC.
================================================================================
<PAGE>
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of May 18, 1998, by and between P&L Coal Holdings Corporation, a
Delaware corporation (the "COMPANY"), and Lehman Brothers Inc. (the "INITIAL
PURCHASER") who has agreed to purchase the Company's 9-5/8% Series A Senior
Subordinated Notes due 2008 (the "SERIES A SENIOR SUBORDINATED NOTES") pursuant
to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May
13, 1998, (the "PURCHASE AGREEMENT"), by and between the Company and the Initial
Purchaser relating to the purchase by the Initial Purchaser of the Company's
Series A Senior Subordinated Notes and the Company's 8-7/8% Senior Notes due
2008 (the "SERIES A SENIOR NOTES").
In order to induce the Initial Purchaser to purchase the Series A
Senior Subordinated Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial Purchaser set forth
in Section 7 of the Purchase Agreement. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to them in the Indenture,
dated May 18, 1998, relating to the Series A Senior Subordinated Notes and the
Series B Senior Subordinated Notes (the "SENIOR SUBORDINATED NOTE INDENTURE")
between the Company and the trustee (the "SENIOR SUBORDINATED NOTE TRUSTEE").
The parties hereby agree as follows:
SECTION 1 DEFINITIONS
-----------
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
AFFILIATED MARKET MAKER: A Broker-Dealer who is deemed to be an
Affiliate of the Company.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
CERTIFICATED SECURITIES: Definitive Notes as defined in the Senior
Subordinated Note Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness
<PAGE>
under the Act of the Exchange Offer Registration Statement relating to the
Series B Senior Subordinated Notes to be issued in the Exchange Offer, (b)
the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less
than the period required pursuant to Section 3(b) hereof and (c) the
delivery by the Company to the Registrars under the Senior Subordinated
Note Indenture of Series B Senior Subordinated Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Senior
Subordinated Notes tendered by Holders thereof pursuant to the Exchange
Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Series B Senior Subordinated Notes (which shall be
registered pursuant to the Exchange Offer Registration Statement) equal to
the outstanding principal amount of the Series A Senior Subordinated Notes
that are tendered by such Holders in connection with such exchange and
issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser
proposes to sell the Series A Senior Subordinated Notes to certain
"qualified institutional buyers," as such term is defined in Rule 144A
under the Act and pursuant to Regulation S under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated
by reference into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Guarantors relating to (a) an offering of Series B Senior Subordinated
Notes pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) that is filed pursuant to the provisions of
this Agreement and (ii) including the Prospectus included therein, all
2
<PAGE>
amendments and supplements thereto (including post-effective amendments)
and all exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SERIES B SENIOR SUBORDINATED NOTES: The Company's 9-5/8% Series B
Senior Subordinated Notes due 2008 to be issued pursuant to the Senior
Subordinated Note Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Senior Subordinated Note Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Senior Subordinated
Note, until the earliest to occur of (i) the date on which such Series A
Senior Subordinated Note is exchanged in the Exchange Offer for a Series B
Senior Subordinated Note which is entitled to be resold to the public by
the Holder thereof without complying with the prospectus delivery
requirements of the Act, (ii) the date on which such Series A Senior
Subordinated Note has been disposed of in accordance with a Shelf
Registration Statement (and the purchasers thereof have been issued Series
B Senior Subordinated Notes), or (iii) the date on which such Series A
Senior Subordinated Note is distributed to the public pursuant to Rule 144
under the Act and each (B) Series B Senior Subordinated Note held by a
Broker Dealer until the date on which such Series B Senior Subordinated
Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
SECTION 2 HOLDERS
-------
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3 REGISTERED EXCHANGE OFFER
-------------------------
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 90 days after the Closing Date (such
90/th/ day being the "FILING DEADLINE"), (ii) use its best efforts to cause such
Exchange Offer Registration Statement to become effective at the earliest
possible time, but in no event later than 180 days after the Closing Date (such
180/th/ day being the "EFFECTIVENESS DEADLINE"), (iii) in connection with the
foregoing, (A) file all pre-effective
3
<PAGE>
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause it to become effective, (B) file, if applicable, a post-effective
amendment to such Exchange Offer Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings, if any, in connection with
the registration and qualification of the Series B Senior Subordinated Notes to
be made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Series B Senior Subordinated Notes to be offered in exchange
for the Series A Senior Subordinated Notes that are Transfer Restricted
Securities and (ii) resales of Series B Senior Subordinated Notes by Broker-
Dealers that tendered into the Exchange Offer Series A Senior Subordinated Notes
that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A Senior
Subordinated Notes acquired directly from the Company or any of its Affiliates)
as contemplated by Section 3(c) below.
(b) The Company shall use its best efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less than 20
Business Days. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Series B Senior Subordinated Notes shall be included in the Exchange Offer
Registration Statement. The Company shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 business days thereafter (such 30/th/ day being the "CONSUMMATION
DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Series A Senior Subordinated
Notes acquired directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Securities pursuant to the Exchange Offer.
Such "Plan of Distribution" section shall also contain all other information
with respect to such sales by such Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Transfer Restricted Securities held by any such Broker-Dealer, except to the
extent required by the Commission as a result of a change in policy, rules or
regulations after the date of this Agreement. See the Shearman & Sterling no-
action letter (available July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Senior Subordinated Notes received by such Broker-Dealer in the Exchange Offer,
the Company shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to
4
<PAGE>
satisfy such prospectus delivery requirement. To the extent necessary to ensure
that the prospectus contained in the Exchange Offer Registration Statement is
available for sales of Series B Senior Subordinated Notes by Broker-Dealers, the
Company agrees to use its best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by and subject to the provisions of Section 6(a) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold pursuant thereto. The Company shall provide sufficient
copies of the latest version of such Prospectus to such Broker-Dealers, promptly
upon request, and in no event later than one day after such request, at any time
during such period.
SECTION 4 SHELF REGISTRATION
------------------
(a) Shelf Registration. If (i) the Exchange Offer is not permitted
------------------
by applicable law or Commission policy (after the Company has complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Series B Senior Subordinated Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Series A Senior Subordinated Notes acquired directly from the Company
or any of its Affiliates, then the Company shall:
(x) cause to be filed, on or prior to 90 days after the earlier of
(i) the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above
and (ii) the date on which the Company receives the notice specified in
clause (a)(ii) above, (such earlier date, the "FILING DEADLINE"), a shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "SHELF
REGISTRATION STATEMENT")), relating to all Transfer Restricted Securities,
and
(y) shall use its best efforts to cause such Shelf Registration
Statement to become effective on or prior to 180 days after the Filing
Deadline for the Shelf Registration Statement (such 180/th/ day the
"EFFECTIVENESS DEADLINE").
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., clause
(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
5
<PAGE>
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company shall use its best efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections
6(b) and (c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for as long as the Initial Purchaser is deemed to be an
affiliate of the Company but in no event less than the shorter of (i) two years
(as extended pursuant to Section 6(c)(i)) following the Closing or (ii) the date
on which all Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
Notwithstanding the foregoing, the Company shall be entitled to
suspend the rights of selling Holders to make sales pursuant to any Shelf
Registration Statement otherwise required to be kept effective by it hereunder
(but the duration of such suspension may not exceed the earlier to occur of (w)
15 days after the cessation of the circumstances described below or (x) 120 days
after the date of the determination of the Board of Directors of the Company
referred to below, and the duration of such suspension shall be excluded from
the calculation of the period specified in this paragraph), if the Board of
Directors of the Company determines in good faith that there is a material
undisclosed development in the business or affairs of the Company (including any
pending or proposed financing, recapitalization, acquisition or disposition),
the disclosure of which at such time could be adverse to the Company's
interests. If the Company shall so suspend the effectiveness of a Shelf
Registration Statement, it shall, as promptly as possible, notify the selling
Holders of such determination, and the selling Holders shall have the right to
receive an extension of the registration period equal to the number of days of
the suspension.
(b) Provision by Holders of Certain Information in Connection with
--------------------------------------------------------------
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
- --------------------------------
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable or has
so complied, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein and agrees to
comply with Regulation M under the Exchange Act. The Company may exclude from
such registration the Transfer Restricted Securities of any Holder who
unreasonably fails to furnish such information. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information or has so complied. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 5 LIQUIDATED DAMAGES
------------------
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration
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<PAGE>
Statement has not been declared effective by the Commission on or prior to the
applicable Effectiveness Deadline, (iii) the Exchange Offer has not been
Consummated on or prior to the Consummation Deadline or (iv) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose
without being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself declared
effective immediately (each such event referred to in clauses (i) through (iv),
a "REGISTRATION DEFAULT"), then the Company hereby agrees to pay to each Holder
of Transfer Restricted Securities affected thereby liquidated damages in an
amount equal to $.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period immediately following
the occurrence of such Registration Default. The amount of the liquidated
damages shall increase by an additional $.05 per week per $1,000 principal
amount of Transfer Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of liquidated damages of $.50 per week per $1,000 principal amount of Transfer
Restricted Securities; provided that the Company shall in no event be required
to pay liquidated damages for more than one Registration Default at any given
time. Notwithstanding anything to the contrary set forth herein, (1) upon
filing of the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the liquidated
damages payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Senior
Subordinated Note Indenture, on each Interest Payment Date, as more fully set
forth in the Senior Subordinated Note Indenture and the Series A Senior
Subordinated Notes. Notwithstanding the fact that any securities for which
liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Company to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
SECTION 6 REGISTRATION PROCEDURES
-----------------------
(a) Exchange Offer Registration Statement. In connection with the
-------------------------------------
Exchange Offer, the Company shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use its best efforts to effect such exchange and to
permit the resale of the Series B Senior Subordinated Notes by Broker-Dealers
that tendered in the Exchange Offer and Series A Senior Subordinated Notes that
such Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Series A Senior Subordinated
Notes acquired directly from the Company or any of its Affiliates) being sold in
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<PAGE>
accordance with the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the Company
to Consummate an Exchange Offer for such Transfer Restricted Securities.
The Company hereby agrees to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Company
hereby agrees to take all such other actions as may be reasonably requested
by the Commission or otherwise required in connection with the issuance of
such decision, including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal bases,
if any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which need
not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Series B Senior Subordinated Notes to be issued in the Exchange Offer and
(C) it is acquiring the Series B Senior Subordinated Notes in its ordinary
course of business. As a condition to its participation in the Exchange
Offer, each Holder using the Exchange Offer to participate in a
distribution of the Series B Senior Subordinated Notes shall acknowledge
and agree that, if the resales are of Series B Senior Subordinated Notes
obtained by such Holder in exchange for Series A Senior Subordinated Notes
acquired directly from the Company or an Affiliate thereof, it (1) could
not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Morgan Stanley and
------------------
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
--------- ----------------------------------
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
-------------------
(including, if applicable, any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be covered by
an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the
8
<PAGE>
Company is registering the Exchange Offer in reliance on the position of
the Commission enunciated in Exxon Capital Holdings Corporation (available
----------------------------------
May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) as
----------------------------
interpreted in the Commission's letter to Shearman & Sterling dated July 2,
-------------------
1993, and, if applicable, any no-action letter obtained pursuant to clause
(i) above, (B) including a representation that the Company has not entered
into any arrangement or understanding with any Person to distribute the
Series B Senior Subordinated Notes to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B Senior
Subordinated Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Series B Senior Subordinated Notes received in the
Exchange Offer and (C) any other undertaking or representation reasonably
required by the Commission as set forth in any no-action letter obtained
pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement.
----------------------------
In connection with the Shelf Registration Statement, the Company
shall:
(i) comply with all the provisions of Section 6(c) below and use its
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished
to the Company pursuant to Section 4(b) hereof), and pursuant thereto the
Company will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which
form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof, and
(ii) issue, upon the request of any Holder or purchaser of Series A
Senior Subordinated Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Series B Senior Subordinated Notes having
an aggregate principal amount equal to the aggregate principal amount of
Series A Senior Subordinated Notes sold pursuant to the Shelf Registration
Statement and surrendered to the Company for cancellation; the Company
shall register Series B Senior Subordinated Notes on the Shelf Registration
Statement for this purpose and issue the Series B Senior Subordinated Notes
to the purchaser(s) of securities subject to the Shelf Registration
Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
------------------
Statement and any related Prospectus required by this Agreement, the Company
shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable.
Notwithstanding the foregoing, the Company shall be entitled to suspend the
rights of selling Holders to make sales
9
<PAGE>
pursuant to any Registration Statement otherwise required to be kept
effective by it hereunder (but the duration of such suspension may not
exceed the earlier to occur of (w) 15 days after the cessation of the
circumstances described below or (x) 120 days after the date of the
determination of the Board of Directors of the Company referred to below,
and the duration of such suspension shall be excluded from the calculation
of the period specified in Section 4(a)), if the Board of Directors of the
Company determines in good faith that there is a material undisclosed
development in the business or affairs of the Company (including any
pending or proposed financing, recapitalization, acquisition or
disposition), the disclosure of which at such time could be adverse to the
Company's interests. If the Company shall so suspend the effectiveness of
a Registration Statement, it shall, as promptly as possible, notify the
selling Holders of such determination, and the selling Holders shall have
the right to receive an extension of the registration period equal to the
number of days of the suspension. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to such Registration
Statement curing such defect, and, if Commission review is required, use
its best efforts to cause such amendment to be declared effective as soon
as practicable.
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act in
a timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise each Holder and the Initial Purchaser who is required to
deliver a prospectus in connection with sales or market making activities
(an "AFFILIATED MARKET MAKER") promptly and, if requested by such Person,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes
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<PAGE>
any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder and each Affiliated Market Maker in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Persons in connection with such
sale, if any, for a period of at least three Business Days, and the Company
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Persons shall reasonably object within three Business Days after the
receipt thereof. Such Person shall be deemed to have reasonably objected
to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact necessary
to make the statements therein not misleading or fails to comply with the
applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each Holder and each Affiliated Market
Maker in connection with such exchange or sale, if any, make the Company's
'representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Persons may reasonably
request;
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<PAGE>
(vii) make available, at reasonable times during normal business
hours, for inspection by each Holder and each Affiliated Market Maker and
any attorney or accountant retained by such Persons, all financial and
other records, pertinent corporate documents of the Company and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such Persons, attorney or accountant in
connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness;
(viii) if requested by any Holders in connection with such exchange
or sale or any Affiliated Market Maker, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or post-
effective amendment if necessary, such information as such Persons may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities and the use of the Registration Statement or
Prospectus for market making activities; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such exchange or sale
and each Affiliated Market Maker, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each Holder and each Affiliated Market Maker without
charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling Person in connection with the offering and the sale
of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto and all market making activities of such
Affiliated Market Maker, as the case may be;
(xi) upon the request of any Holder, enter into such agreements
(including underwriting agreements in usual and customary form) and make
such representations and warranties which, in the opinion of the Company,
are reasonably required and take all such other reasonable actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Shelf Registration
Statement contemplated by this Agreement as may be reasonably requested by
any Holder in connection with any sale or resale pursuant to any Shelf
Registration Statement. In such connection, and also in connection with
market making activities by any Affiliated Market Maker, the Company shall:
(A) upon request of any Person holding at least $25.0 million
principal amount of Transfer Restricted Securities, furnish (or in the
case of paragraphs
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<PAGE>
(2) and (3), use its best efforts to cause to be furnished) to each
Person, upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on
behalf of the Company and each of the Guarantors by (x)
the President or any Vice President and (y) a principal
financial or accounting officer of the Company and such
Guarantor, confirming, as of the date thereof, the
matters set forth in Sections 7(l), 7(n) and 7(o) of
the Purchase Agreement and such other similar matters
as such Person may reasonably request;
(2) an opinion, dated the date of effectiveness
of the Shelf Registration Statement, of counsel for the
Company covering matters similar to those set forth in
paragraph (d) of Section 7 of the Purchase Agreement,
and in any event including a statement to the effect
that such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants
for the Company and has considered the matters required
to be stated therein and the statements contained
therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the
basis of the foregoing, no facts came to such counsel's
attention that caused such counsel to believe that the
Shelf Registration Statement, at the time such
Registration Statement or any post-effective amendment
thereto became effective, contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date contained an untrue statement of a material
fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial
data included in any the Shelf Registration Statement
contemplated by this Agreement or the related
Prospectus; and
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<PAGE>
(3) a customary comfort letter, dated the date of
effectiveness of the Shelf Registration Statement, from
the Company's independent accountants, in the customary
form and covering matters of the type customarily
covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming
the matters set forth in the comfort letters delivered
pursuant to Section 7(j) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such Persons to evidence compliance with the
matters covered in clause (A) above and with any customary conditions
contained in the any agreement entered into by the Company pursuant
to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to register or
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such sale
of Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xv) obtain a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Senior Subordinated Note
Trustee under the Senior Subordinated Note Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
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<PAGE>
(xvi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) covering a twelve-
month period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule 158 under the
Act);
(xvii) cause the Senior Subordinated Note Indenture to be qualified
under the TIA not later than the effective date of the first Registration
Statement required by this Agreement and, in connection therewith,
cooperate with the Senior Subordinated Note Trustee and the Holders to
effect such changes to the Senior Subordinated Note Indenture as may be
reasonably required for such Senior Subordinated Note Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its
best efforts to cause the Senior Subordinated Note Trustee to execute, all
documents that may be required to effect such changes and all other forms
and documents that may be reasonably required to be filed with the
Commission to enable such Senior Subordinated Note Indenture to be so
qualified in a timely manner; and
(xviii) provide promptly to each Holder and Affiliated Market Maker,
upon request, each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from the
Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "SUSPENSION NOTICE"), such Person will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until (i) such Person has received copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(iv)
hereof, or (ii) such Person is advised in writing by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "RECOMMENCEMENT DATE"). Each Person receiving a Suspension
Notice hereby agrees that it will either (i) destroy any Prospectuses, other
than permanent file copies, then in such Person's possession which have been
replaced by the Company with more recently dated Prospectuses or (ii) deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Person's possession of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of the
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
SECTION 7 REGISTRATION EXPENSES
---------------------
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement
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<PAGE>
becomes effective, including without limitation: (i) all registration and filing
fees and expenses; (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Series B Senior Subordinated Notes to
be issued in the Exchange Offer and printing of Prospectuses whether for
exchanges, sales, market making or otherwise), messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company and
the Guarantors; and (v) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities who are
tendering Series A Senior Subordinated Notes into in the Exchange Offer and/or
selling or reselling Series A Senior Subordinated Notes or Series B Senior
Subordinated Notes pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be Latham & Watkins, unless another firm shall be chosen by
the Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.
SECTION 8 INDEMNIFICATION
---------------
(a) The Company agree, jointly and severally, to indemnify and hold
harmless each Holder, its directors, officers and each Person, if any, who
controls such Holder (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any reasonable legal or
other expenses incurred in connection with investigating or defending any
matter, including any action that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Company to any Holder or any prospective purchaser of the Series
B Senior Subordinated Notes or of the registered Series A Senior Subordinated
Notes, or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to any of the
Holders furnished in writing to the Company by any of the Holders; and provided
--------
that with respect to any such untrue statement or omission made in a preliminary
prospectus, the foregoing indemnity shall not inure to the benefit of any Holder
(or any person who controls such Holder or any officer or director thereof) from
whom the
16
<PAGE>
person asserting such loss, claim, damage, liability or action purchased the
Series B Senior Subordinated Notes, to the extent that such sale was an initial
resale by such Holder and any such loss, claim, damage, liability or action of
such Holder is a result of the fact that both (i) to the extent required by
applicable law, a copy of the Prospectus, as the same may be amended or
supplemented, was not sent or given to such person at or prior to the written
confirmation of the sale of such Series B Senior Subordinated Notes to such
person, and (ii) the untrue statement or omission in the preliminary prospectus
was corrected in the Prospectus unless, in either case, such failure to deliver
the Prospectus was a result of non-compliance by the Company with Section
6(c)(i).
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company, and its directors
and officers, and each Person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company to the same
extent as the foregoing indemnity from the Company set forth in section (a)
above, but only with reference to information relating to such Holder furnished
in writing to the Company by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all reasonable fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction
17
<PAGE>
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Holders, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the reasonable fees and expenses of counsel (in any case where
such reasonable fees and expenses are at the expense of the indemnifying party)
and, prior to the date of such settlement, the indemnifying party shall have
failed to comply with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Company, on the one hand, and of the Holder, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company , on the one hand,
and of the Holder, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and judgments referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the
18
<PAGE>
Holders were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any matter, including any action that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Holder, its directors, its officers or any
Person, if any, who controls such Holder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total proceeds
received by such Holder with respect to the sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each Holder hereunder
and not joint.
The Company agrees that the indemnity and contribution provisions of
this Section 8 shall apply to Affiliated Market Makers to the same extent, on
the same conditions, as they apply to Holders.
SECTION 9 RULE 144A AND RULE 144
----------------------
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10 MISCELLANEOUS
-------------
(a) Remedies. The Company acknowledge and agree that any failure by
--------
the Company to comply with its obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchaser or the Holders or
Affiliated Market Makers for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchaser or any Holder or Affiliated
Market Makers may obtain such relief as may be required to specifically enforce
the Company's obligations under Sections 3 and 4 hereof. The Company further
19
<PAGE>
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after
--------------------------
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Company has
not previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any agreement in
effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders and Affiliated Market
-----------------------
Makers shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect their rights or
the rights of Holders and Affiliated Market Makers hereunder.
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Senior Subordinated Note Indenture, with a copy to the
Registrar under the Senior Subordinated Note Indenture; and
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<PAGE>
(ii) if to the Company:
P&L Coal Holdings Corporation
701 Market Street
St. Louis, MO 63101-1826
Telecopier No.: 314-342-3449
Attention: Chief Financial Officer
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
Telecopier No.: 212-455-2502
Attention: Rise B. Norman
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Senior Subordinated
Note Trustee at the address specified in the Senior Subordinated Note Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered (in the form attached
hereto as Exhibit A) and shall be addressed to: Lehman Brothers Inc. Attention:
Randy Stuzin, 3 World Financial Center, 200 Vesey Street, New York, New York
10285.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Senior Subordinated Note Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so
21
<PAGE>
EXHIBIT 4.8
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
P&L Coal Holdings Corporation
/s/ Felix Herlihy
By:___________________________
Name: Felix Herlihy
Title: Vice President, Treasurer
and Assistant Secretary
Accepted:
Lehman Brothers Inc.
/s/ Alexander V. Ponomarenko
By: _____________________________
Name: Alexander V. Ponomarenko
Title: Authorized Signatory
1
<PAGE>
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Lehman Brothers, Inc.
3 World Financial Center
200 Vesey Street
New York, New York 10285
Attention: Randy Stuzin
Fax: (212) 526-4911
From: P&L Coal Holdings Corporation
$500,000,000 9-5/8% Senior Subordinated Notes due 2008
Date: ___________, 199__
For your information only (NO ACTION REQUIRED):
Today, ____________, 199 -, we filed [an A/B Exchange Registration
--
Statement/a Shelf Registration Statement] with the Securities and Exchange
Commission. We currently expect this registration statement to be declared
effective within ____ business days of the date hereof.
2
<PAGE>
EXHIBIT 5
July 14, 1998
P&L Coal Holdings Corporation
701 Market Street
St. Louis, MO 63101-1826
Ladies and Gentlemen:
We have acted as special counsel for P&L Coal Holdings Corporation, a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-4 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), relating to the issuance by the
Company of $400,000,000 aggregate principal amount of its 8-7/8% Series B Senior
Notes due 2008 (the "Senior Exchange Notes"), guaranteed (the "Senior
Guarantees") on a senior basis by the entities listed on Schedule A hereto
(collectively, the "Guarantors") and $500,000,000 aggregate principal amount of
its 9-5/8% Series B Senior Subordinated Notes due 2008 (the "Senior Subordinated
Exchange Notes" and together with the Senior Exchange Notes, the "Exchange
Notes"), guaranteed (the "Senior Subordinated Guarantees" and together with the
Senior Guarantees, the "Guarantees") on a senior subordinated basis by the
Guarantors. The Senior Exchange Notes are to be offered by the Company in
exchange for (the "Senior Exchange") $400,000,000 aggregate principal amount of
its outstanding 8-7/8% Senior Notes due 2008 (the "Senior Notes") and the Senior
Subordinated
<PAGE>
P&L Coal Holdings Corporation -2- July 14, 1998
Exchange Notes are to be offered by the Company in exchange for (the
"Subordinated Exchange" and together with the Senior Exchange, the "Exchanges")
$500,000,000 aggregate principal amount of its outstanding 9-5/8% Senior
Subordinated Notes due 2008 (the "Senior Subordinated Notes"). The Senior Notes
have been, and the Senior Exchange Notes will be, issued under an Indenture,
dated as of May 18, 1998 (the "Senior Indenture"), between the Company and State
Street Bank and Trust Company, as Trustee. The Senior Subordinated Notes have
been, and the Senior Subordinated Exchange Notes will be, issued under an
Indenture, dated as of May 18, 1998 (the "Senior Subordinated Indenture" and
together with the Senior Indenture, the "Indentures"), between the Company and
State Street Bank Trust Company, as Trustee.
We have examined the Registration Statement and the Indentures, which
have been filed with the Commission as Exhibits to the Registration Statement.
In addition, we have examined, and have relied as to matters of fact upon, the
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, and have made such other and further
investigations, as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as
<PAGE>
P&L Coal Holdings Corporation -3- July 14, 1998
certified or photostatic copies, and the authenticity of the originals of such
latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. Assuming the Indentures have been duly authorized and validly
executed and delivered by the respective parties thereto, when (1) the
respective Indentures have been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), (2) the Board of
Directors of the Company, a duly constituted and acting committee
thereof or duly authorized officers thereof have taken all necessary
corporate action to approve the issuance and terms of the Exchange
Notes, the terms of the Exchanges and related matters, and (3) the
Exchange Notes have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the respective Indentures
upon the Exchanges, the Exchange Notes will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the
respective Indentures.
2. Assuming the Indentures have been duly authorized and validly
executed and delivered by the parties thereto, when (1) the Indentures
have been duly qualified under the Trust Indenture Act, (2) the Board of
Directors of the Company, a duly constituted and acting committee
thereof or duly authorized officers thereof have taken all necessary
corporate action to approve the issuance and terms of the Exchange
Notes, the terms of the Exchanges and related matters, (3) the Board of
Directors of each Guarantor, a duly constituted and acting committee
thereof or duly authorized officers thereof have taken all necessary
corporate action to approve the issuance and terms of such Guarantor's
Guarantee and (4) the Exchange Notes and the Guarantees endorsed thereon
have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the respective Indentures upon the
Exchanges, each Guarantor's Guarantee will constitute a valid and
legally binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms and entitled to the benefits of
the respective Indentures.
Our opinions set forth in paragraphs 1 and 2 above are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other
<PAGE>
P&L Coal Holdings Corporation -4- July 14, 1998
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York, the federal law of the United States and the Delaware General Corporation
Law.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
Very truly yours,
/s/ Simpson Thacher & Bartlett
------------------------------
SIMPSON THACHER & BARTLETT
<PAGE>
SCHEDULE A
Guarantors
- ----------
Affinity Mining Company
Arid Operations, Inc.
Big Sky Coal Company
Blackrock First Capital Corporation
Bluegrass Coal Company
Caballo Coal Company
Charles Coal Company
Coal Properties Corp.
Colony Bay Coal Company
Cook Mountain Coal Company
Cottonwood Land Company
Darius Gold Mine Inc.
EACC Camps, Inc.
Eastern Associated Coal Corp.
Eastern Royalty Corp.
Gold Fields Chile, S.A.
Gold Fields Mining Corporation
Gold Fields Operating Co. - Ortiz
Grand Eagle Mining, Inc.
Hayden Gulch Terminal, Inc.
Independence Material Handling Company
Interior Holdings Corp.
James River Coal Terminal Company
Juniper Coal Company
Kayenta Mobile Home Park, Inc.
Martinka Coal Company
Midco Supply and Equipment Corporation
Midwest Coal Resources, Inc.
Mountain View Coal Company
North Page Coal Corp.
Ohio County Coal Company
Patriot Coal Company, L.P.
Peabody America, Inc.
Peabody Coal Company
Peabody COALSALES Company
Peabody COALTRADE, Inc.
Peabody Development Company
Peabody Energy Solutions, Inc.
Peabody Holding Company, Inc.
Peabody Natural Resources Company
Peabody Terminals, Inc.
Peabody Venezuela Coal Corp.
Peabody Western Coal Company
Pine Ridge Coal Company
<PAGE>
P&L Coal Holdings Corporation -6- July 14, 1998
Powder River Coal Company
Rio Escondido Coal Corp.
Seneca Coal Company
Sentry Mining Company
Snowberry Land Company
Sterling Smokeless Coal Company
Thoroughbred, L.L.C.
<PAGE>
EXHIBIT 10.1
================================================================================
P&L COAL HOLDINGS CORPORATION,
a Delaware corporation,
as Borrower
_________________________
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of June 9, 1998
_________________________
$1,400,000,000
Credit Facility
_________________________
THE LENDERS PARTY HERETO,
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent
LEHMAN BROTHERS INC.,
as Arranger,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
and
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
and
THE FUJI BANK, LIMITED,
as Documentation Agents
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS................................................................ 2
1.1 Defined Terms.............................................................. 2
1.2 Other Definitional Provisions.............................................. 24
1.3 Interrelationship with Original Credit Agreement........................... 24
1.4 Confirmation of Existing Obligations....................................... 25
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS.................................. 25
2.1 Commitments................................................................ 25
2.2 Procedure for Borrowing.................................................... 27
2.3 Commitment Fee............................................................. 28
2.4 Termination or Reduction of Revolving Credit Commitments................... 28
2.5 Repayment of Loans; Evidence of Debt....................................... 28
2.6 Optional Prepayments; Mandatory Prepayments and Reduction of Commitments... 32
2.7 Conversion and Continuation Options........................................ 34
2.8 Minimum Amounts and Maximum Number of Tranches............................. 34
2.9 Interest Rates and Payment Dates........................................... 35
2.10 Computation of Interest and Fees........................................... 35
2.11 Inability to Determine Interest Rate....................................... 35
2.12 Pro Rata Treatment and Payments............................................ 36
2.13 Illegality................................................................. 37
2.14 Requirements of Law........................................................ 37
2.15 Taxes...................................................................... 38
2.16 Indemnity.................................................................. 40
2.17 Replacement of Lenders..................................................... 41
2.18 Certain Fees............................................................... 41
2.19 Certain Rules Relating to the Payment of Additional Amounts................ 41
SECTION 3. LETTERS OF CREDIT.......................................................... 42
3.1 L/C Commitment............................................................. 42
3.2 Procedure for Issuance of Letters of Credit................................ 42
3.3 Fees, Commissions and Other Charges........................................ 43
3.4 L/C Participation.......................................................... 43
3.5 Reimbursement Obligation of the Borrower................................... 44
3.6 Obligations Absolute....................................................... 45
3.7 Letter of Credit Payments.................................................. 45
3.8 Application................................................................ 45
SECTION 4. REPRESENTATIONS AND WARRANTIES............................................. 45
4.1 Financial Statements and Condition......................................... 45
4.2 No Change.................................................................. 46
4.3 Corporate Existence........................................................ 46
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
4.4 Corporate Power; Authorization; Enforceable Obligations; No Conflict............ 46
4.5 No Legal Bar.................................................................... 47
4.6 Litigation; Compliance with Laws; Reserves...................................... 47
4.7 No Default...................................................................... 47
4.8 Ownership and Location of Property; Liens....................................... 47
4.9 Intellectual Property........................................................... 49
4.10 Taxes........................................................................... 49
4.11 Federal Regulations............................................................. 49
4.12 ERISA; Coal Act; Black Lung Act................................................. 49
4.13 Investment Company Act; Other Regulations....................................... 50
4.14 Subsidiaries and Other Investments.............................................. 50
4.15 Purpose of Loans................................................................ 50
4.16 Environmental Matters........................................................... 51
4.17 Collateral Documents............................................................ 52
4.18 Accuracy and Completeness of Information........................................ 52
4.19 Solvency........................................................................ 53
4.20 Labor Matters................................................................... 53
4.21 Transaction Documents........................................................... 53
4.22 Insurance....................................................................... 53
4.23 Receipt of Proceeds............................................................. 54
4.24 Coal Supply Agreements.......................................................... 54
4.25 Mines........................................................................... 54
4.26 Titled Equipment................................................................ 54
4.27 Acts of God..................................................................... 54
4.28 Surety Bonds.................................................................... 54
4.29 Coal Sales...................................................................... 54
SECTION 5. CONDITIONS PRECEDENT............................................................ 55
5.1 Effective Date.................................................................. 55
5.2 [RESERVED]...................................................................... 57
5.3 Conditions to a Credit Event.................................................... 57
SECTION 6. AFFIRMATIVE COVENANTS........................................................... 58
6.1 Financial Statements............................................................ 58
6.2 Certificates; Other Information................................................. 58
6.3 Payment of Obligations.......................................................... 59
6.4 Existence; Businesses and Properties............................................ 59
6.5 Insurance....................................................................... 60
6.6 Inspection of Properties; Books and Records; Discussions........................ 61
6.7 Notices......................................................................... 62
6.8 Mining and Environmental Laws................................................... 63
6.9 Further Assurances.............................................................. 63
6.10 Additional Collateral........................................................... 63
6.11 Interest Rate Protection........................................................ 68
6.12 Foreign Jurisdictions........................................................... 69
6.13 Maintenance of Collateral; Alterations.......................................... 69
6.14 Use of Proceeds................................................................. 69
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
6.15 [RESERVED]...................................................................... 69
6.16 Preparation of Environmental Reports............................................ 69
6.17 Citizens Debt................................................................... 69
6.18 Maintenance of Coal Reserves.................................................... 69
6.19 Coal Supply Agreements.......................................................... 69
6.20 Exploration and Reserves........................................................ 70
6.21 Certain Long Term Liabilities and Environmental Reserves........................ 70
6.22 [RESERVED]...................................................................... 70
6.23 Unrestricted Subsidiaries....................................................... 70
SECTION 7. NEGATIVE COVENANTS.............................................................. 70
7.1 Financial Condition Covenants................................................... 71
7.2 Limitation on Indebtedness...................................................... 72
7.3 Limitation on Liens............................................................. 74
7.4 Limitation on Guarantee Obligations............................................. 76
7.5 Limitation on Fundamental Changes............................................... 77
7.6 Limitation on Sale of Assets.................................................... 77
7.7 Dividends and Distributions; Restrictions on Ability of Restricted Subsidiaries
to Pay Dividends............................................................... 79
7.8 Limitation on Capital Expenditures.............................................. 80
7.9 Limitation on Investments, Loans and Advances................................... 80
7.10 Limitation on Optional Payments and Modifications of Instruments and Agreements. 82
7.11 Limitation on Transactions with Affiliates...................................... 82
7.12 Limitation on Sales and Leasebacks.............................................. 83
7.13 Limitation on Changes in Fiscal Year............................................ 84
7.14 Limitation on Negative Pledge Clauses........................................... 84
7.15 Limitation on Lines of Business................................................. 84
7.16 Designated Senior Debt.......................................................... 84
SECTION 8. EVENTS OF DEFAULT............................................................... 84
SECTION 9. THE AGENTS...................................................................... 88
9.1 Appointment..................................................................... 88
9.2 Delegation of Duties............................................................ 88
9.3 Exculpatory Provisions.......................................................... 88
9.4 Reliance by Agents.............................................................. 89
9.5 Notice of Default............................................................... 89
9.6 Non-Reliance on Agents and Other Lenders........................................ 89
9.7 Indemnification................................................................. 90
9.8 Agents, in Their Individual Capacities.......................................... 90
9.9 Successor Administrative Agent.................................................. 90
9.10 The Arranger.................................................................... 91
SECTION 10. MISCELLANEOUS................................................................... 91
10.1 Amendments and Waivers.......................................................... 91
10.2 Notices......................................................................... 92
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
10.3 No Waiver; Cumulative Remedies.................................................. 94
10.4 Survival of Representations and Warranties...................................... 94
10.5 Payment of Expenses and Taxes................................................... 94
10.6 Successors and Assigns; Participations and Assignments.......................... 94
10.7 Adjustments; Set-off............................................................ 98
10.8 Counterparts.................................................................... 98
10.9 Severability.................................................................... 98
10.10 Integration..................................................................... 98
10.11 Governing Law................................................................... 98
10.12 Submission to Jurisdiction; Waivers............................................. 99
10.13 Acknowledgements................................................................ 99
10.14 Waivers of Jury Trial........................................................... 100
10.15 Confidentiality................................................................. 100
10.16 Prudential Note................................................................. 100
10.17 Year 2000....................................................................... 100
10.18 Existing Agreements Superseded.................................................. 101
</TABLE>
-iv-
<PAGE>
EXHIBITS
Exhibit A-1 Form of Tranche A Term Note
Exhibit A-2 Form of Tranche B Term Note
Exhibit A-3 Form of Revolving Credit Note
Exhibit A-4 Form of Swing Line Note
Exhibit B Form of Guarantee and Collateral Agreement
Exhibit C-1 Form of Legal Opinion of Simpson Thacher & Bartlett with
respect to the Borrower and the other Credit Parties
Exhibit C-2 Form of Legal Opinion of Jeffery Klinger with respect to the
Borrower and the other Credit Parties
Exhibit D Form of Notice of Borrowing
Exhibit E Form of Certificate of Non-U.S. Lender
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Confirmation Agreement
Exhibit H Form of Subordination Agreement
Exhibit I Form of Patent Security Agreement
Exhibit J Form of Trademark Security Agreement
SCHEDULES
Schedule I Lenders and Commitments
Schedule II Pricing Grid
Schedule III Transaction Documents
Schedule IV Coal Act
Schedule V Black Lung Act
Schedule VI Retiree Welfare Benefits
Schedule 4.4 Required Consents
Schedule 4.5 No Legal Bar
Schedule 4.6 Material Litigation
Schedule 4.8 Real Property
Schedule 4.9 Intellectual Property Claims
Schedule 4.12 ERISA
Schedule 4.14 Subsidiaries
Schedule 4.16 Environmental Matters
Schedule 4.17 Filing Jurisdictions
Schedule 4.22 Existing Insurance
Schedule 4.24 Coal Supply Agreements
Schedule 4.25 Mines
Schedule 6.10 Certain Real Property
Schedule 7.2(e) Existing Indebtedness
Schedule 7.3(f) Existing Liens
Schedule 7.4 Existing Guarantee Obligations
Schedule 7.7 Operating Leases
Schedule 7.9(e) Existing Investments
<PAGE>
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 9, 1998,
among P&L Coal Holdings Corporation, a Delaware corporation (the "Borrower"),
--------
the several lenders from time to time parties hereto (the "Lenders"), Lehman
-------
Brothers Inc., as arranger (in such capacity, the "Arranger"), Lehman Commercial
--------
Paper Inc. ("LCPI"), as syndication agent (in such capacity, the "Syndication
---- -----------
Agent"), Bank of America National Trust & Savings Association and The Fuji Bank,
- -----
Limited, each as documentation agent (the "Documentation Agents") and The First
--------------------
National Bank of Chicago, as administrative agent for the Agents (as defined
below) and the Lenders (in such capacity, the "Administrative Agent"), AMENDS
--------------------
AND RESTATES IN FULL the Credit Agreement, dated as of May 14, 1998 (the
"Original Credit Agreement"), among the Borrower, LCPI, as lender (the "Original
------------------------- --------
Lender"), the Arranger, the Syndication Agent, LCPI, as administrative agent
- ------
(the "Original Administrative Agent"), and LCPI, as documentation agent (the
-----------------------------
"Original Documentation Agent"); this amendment and restatement of the Original
----------------------------
Credit Agreement, as amended, supplemented, restated or otherwise modified from
time to time, the "Credit Agreement".
----------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Texas Utilities Company ("TU") previously made an offer (the
--
"Offer") to the shareholders of The Energy Group PLC ("TEG"), a diversified
----- ---
energy company with its principal place of business in London, England, which
offer was conditioned upon the sale by Energy Holdings (No. 2) Ltd. and Peabody
Investments, Inc. (collectively, the "Seller"), each a Subsidiary of TEG, to the
------
Borrower of (i) all of the outstanding Capital Stock of the Acquired Companies
and (ii) the Minority Interests for $2,064,994,000 in cash (the "Cash
----
Consideration");
- -------------
WHEREAS, the Original Lender previously extended credit to the
Borrower under the Original Credit Agreement to (i) finance the Acquisition and
related fees and expenses, (ii) repay up to $50,000,000 of Indebtedness of
Peabody Australia and its Subsidiaries, (iii) if necessary, provide cash
collateral for certain letters of credit of the Acquired Subsidiaries and (iv)
to finance the working capital and other general corporate needs of the Borrower
and its Restricted Subsidiaries in the ordinary course of business and to make
certain investments permitted thereunder;
WHEREAS, the Borrower has requested that the Original Credit Agreement
be amended and restated in full as set forth herein;
WHEREAS, the Original Lender and the Original Agents are willing so to
amend and restate the Original Credit Agreement and to continue to extend credit
to the Borrower, upon and subject to the terms and conditions set forth herein,
and in connection therewith (i) the Original Lender will be assigning a portion
of its Loans and Commitments under the Original Credit Agreement to the Lenders
in the amounts set forth on Schedule I hereto, (ii) the Administrative Agent
will be replacing the Original Administrative Agent and (iii) the Documentation
Agents will be replacing the Original Documentation Agent;
WHEREAS, it is the intent of the Borrower, the Original Lender, the
Lenders, the Original Agents and the Agents that this Credit Agreement amend and
restate in its entirety the Original Credit Agreement and that, from and after
the Effective Date, the Original Credit Agreement shall be of no force and
effect except to evidence the terms and conditions under which the Borrower
heretofore has incurred obligations and liabilities to the Original Lender and
the Original Agents (as evidenced by the Original Credit Agreement and the
Original Administrative Agent's books and records); and
<PAGE>
WHEREAS, this Credit Agreement is made in renewal, amendment,
restatement and modification of, but not in extinguishment of, the obligations
under the Original Credit Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
-------------
shall have the following meanings:
"Acquired Companies": collectively, PHCI, Citizens, Gold Fields,
-------------------
Darex and Peabody Australia.
"Acquired Subsidiaries": collectively, the Acquired Companies and
---------------------
their respective Subsidiaries.
"Acquisition": the acquisition by the Borrower of (i) all of the
-----------
outstanding Capital Stock of the Acquired Companies and (ii) the Minority
Interests, on the terms and conditions set forth in the Acquisition
Agreement.
"Acquisition Agreement": the Agreement dated as of March 2, 1998,
---------------------
between the Borrower and TEG, as the same may be amended, modified or
supplemented from time to time not in violation of the terms hereof.
"Adjustment Date": the fifth day following the receipt by the
---------------
Administrative Agent of the financial statements for the most recently
completed fiscal period furnished pursuant to subsection 6.1(a) or (b), as
the case may be, and the compliance certificate with respect to such
financial statements furnished pursuant to subsection 6.2(c). For purposes
of determining the Applicable Margin and the Commitment Fee Rate, the first
"Adjustment Date" shall mean the date on which the financial statements for
---------------
the fiscal quarter ended September 30, 1998 furnished pursuant to
subsection 6.1(b) and the related compliance certificate furnished pursuant
to subsection 6.2(c) are delivered to the Administrative Agent pursuant to
subsection 6.1(b) and 6.2(c), respectively.
"Affiliate": as to any Person, any other Person which, directly or
---------
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
-------
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Agents": the collective reference to the Arranger, the Syndication
------
Agent, the Documentation Agents and the Administrative Agent.
"Aggregate Outstanding Extensions of Credit": as to any Lender with
------------------------------------------
respect to any Type of Loan at any time, an amount equal to the sum of (a)
the aggregate principal amount of all Loans of such Type made by such
Lender then outstanding and (b) in the case of
2
<PAGE>
Revolving Credit Loans, such Lender's Commitment Percentage of the L/C
Obligations then outstanding.
"Agreement": this Credit Agreement, as amended, restated, supplemented
---------
or otherwise modified from time to time.
"Applicable Margin": at any time, the percentages set forth on
-----------------
Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Applicable
Margins commencing on the Closing Date (or, if earlier, the Escrow Date)
shall be those set forth in Schedule II opposite a Debt Ratio captioned
"4.75x" until the first Adjustment Date, (b) the Applicable Margins
determined for any Adjustment Date (including the first Adjustment Date)
shall remain in effect until a subsequent Adjustment Date for which the
Debt Ratio falls within a different level and (c) if the financial
statements and related compliance certificate for any fiscal period are not
delivered by the date due pursuant to subsections 6.1 and 6.2, the
Applicable Margins shall be (i) for the first 35 days subsequent to such
due date, the Applicable Margin in effect prior to such due date and (ii)
thereafter, those set forth opposite a Debt Ratio captioned "4.75x" in
either case, until the date of delivery of such financial statements and
compliance certificate.
"Application": an application or request, in such form as the Issuing
-----------
Lender may specify from time to time and delivered by such means
(including, without limitation, by facsimile or other means of electronic
transmission or pursuant to a computerized system established by the
Issuing Lender) as the Issuing Lender and the Borrower may from time to
time agree, requesting the Issuing Lender to issue a Letter of Credit.
"Asset Sale": any sale, sale and leaseback, or other disposition by
----------
any Person or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of such Person, except (i) sales and
dispositions permitted by subsection 7.6 (other than subsection 7.6(b),
(e), (k) or (m)) and (ii) a sale and leaseback of property or assets
consummated within 180 days of the initial acquisition of such property or
assets by such Person or its Subsidiary.
"Assignee": as defined in subsection 10.6(c).
--------
"Attributable Debt": in respect of a sale and leaseback transaction
-----------------
resulting in a Financing Lease, at the time of determination, the present
value (discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such
sale and leaseback transaction (including any period for which such lease
has been extended or may, at the option of the lessor, be extended).
"Available Commitment": as to any Lender and any Type of Loan, at any
--------------------
time, an amount equal to the excess, if any, of (a) such Lender's
Commitment with respect to such Type of Loan minus (b) such Lender's
Aggregate Outstanding Extensions of Credit with respect to such Type of
Loan.
"Base Rate": for any day, the higher of: (a) 0.50% per annum above
---------
the latest Federal Funds Rate; and (b) the per annum rate of interest in
effect for such day as announced from
3
<PAGE>
time to time by the Administrative Agent as its "corporate base rate",
-------------------
"reference rate", "prime rate" or the substantial equivalent of any
-------------- ----------
thereof.
"Base Rate Loans": Loans the rate of interest applicable to which is
---------------
based upon the Base Rate.
"Black Lung Act": collectively, the Black Lung Benefits Revenue Act of
--------------
1977, as amended and the Black Lung Benefits Reform Act of 1977, as
amended.
"Borrowing Date": any Business Day specified in a notice pursuant to
--------------
subsection 2.2 as a date on which the Borrower requests the Lenders to make
Loans hereunder.
"Business": as defined in subsection 4.16(b).
--------
"Business Day": a day other than a Saturday, Sunday or other day on
------------
which commercial banks in New York, New York, or Chicago, Illinois, are
authorized or required by law to close and, if the applicable Business Day
relates to LIBOR Loans, any day on which dealings are carried on in the
applicable London interbank market.
"Capital Expenditures": for any fiscal period, the aggregate of all
--------------------
expenditures that, in conformity with GAAP (but excluding capitalized
interest), are or are required to be included as additions during such
period to property, plant or equipment reflected on the consolidated
balance sheet of the Borrower and its Subsidiaries, excluding the
expenditures relating to the Transaction and the non-cash component of any
federal coal lease obligations during such period.
"Capital Lease Obligations": of any Person as of the date of
-------------------------
determination, the aggregate liability of such Person under Financing
Leases reflected on a balance sheet of such Person under GAAP.
"Capital Stock": any and all shares, interests, participations or
-------------
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Consideration": as defined in the recitals to this Agreement.
------------------
"Cash Equivalents": (a) securities with maturities of one year or
----------------
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and time deposits with maturities of one year or less from the date
of acquisition and overnight bank deposits of any Lender or of any
commercial bank having capital and surplus in excess of $500,000,000, (c)
repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not
more than 90 days with respect to securities issued or fully guaranteed or
insured by the United States Government, (d) commercial paper of a domestic
issuer rated at least A-2 by Standard and Poor's Ratings Group ("S&P") or
---
P-2 by Moody's Investors Service, Inc. ("Moody's"), or carrying an
-------
equivalent rating by a nationally recognized rating agency if both of S&P
and Moody's cease publishing ratings of investments, (e) securities
4
<PAGE>
with maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's, (f) securities with maturities of one year or less
from the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause (b)
of this definition or (g) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"Chaco Royalty Stream": the royalty payments pursuant to the coal
--------------------
lease dated April 15, 1977 between Hospah Coal Company and Chaco Energy
Company, as amended and assigned to one of the Borrower's Restricted
Subsidiaries.
"Change in Control": (i) prior to the effectiveness of an initial
-----------------
registered public offering of Capital Stock by the Borrower, (A) LBMBP II
and its Affiliates shall cease to have the power to vote or direct the
voting of securities having a majority of the ordinary voting power for the
election of directors or managers of the Borrower (determined on a fully
diluted basis), (B) LBMBP II and its Affiliates shall cease to own of
record and beneficially at least a majority of the outstanding common stock
of the Borrower or (C) the board of directors or managers of the Borrower
shall cease to consist of a majority of directors or managers appointed by
LBMBP II; and (ii) after the effectiveness of an initial registered public
offering of Capital Stock by the Borrower, (A) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), excluding LBMBP II and its
------------
Affiliates shall (x) become, or obtain rights (whether by means or
warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of a greater percentage of the outstanding common stock of the
Borrower than the percentage of such common stock owned by LBMBP II and its
Affiliates or (y) have the power to vote or direct the voting of securities
having a majority of the ordinary voting power for the election of
directors or managers of the Borrower (determined on a fully diluted
basis).
"Citizens": Citizens Power LLC, a Delaware Limited Liability Company.
--------
"Citizens Entities": Citizens and its Subsidiaries.
-----------------
"Class": (i) Lenders having Tranche A Term Loan Exposure and/or
-----
Revolving Credit Loan Exposure (taken together as a single class) and (ii)
Lenders having Tranche B Term Loan Exposure.
"Closing Date": May 19, 1998.
------------
"Coal": all of the coal owned or leased by any Credit Party and (i)
----
located on, under, or within, or (ii) produced and severed from, the
properties owned or leased by any Credit Party.
"Coal Act": the Coal Industry Retiree Health Benefits Act of 1992, as
--------
amended.
5
<PAGE>
"Coal Supply Agreements": those contracts now in effect or hereafter
----------------------
entered into by the Borrower or any of its Subsidiaries for the sale,
purchase, exchange, processing or handling of Coal with an initial term of
more than one year.
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral": all assets of the Credit Parties, now owned or
----------
hereafter acquired, upon which a Lien is purported to be created by this
Agreement or any Security Document.
"Collateral Amount": as defined in subsection 7.6.
-----------------
"Commitment": as to any Lender, such Lender's Tranche A Term Loan
----------
Commitment, Tranche B Term Loan Commitment, and Revolving Credit
Commitment.
"Commitment Fee Rate": at any time, the rates per annum set forth on
-------------------
Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Commitment Fee
Rate commencing on the Closing Date (or, if earlier, the Escrow Date) shall
be that set forth in Schedule II opposite a Debt Ratio captioned "4.75x"
until the first Adjustment Date, (b) the Commitment Fee Rate determined for
any Adjustment Date (including the first Adjustment Date) shall remain in
effect until a subsequent Adjustment Date for which the Debt Ratio falls
within a different level and (c) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the date
due pursuant to subsections 6.1 and 6.2, the Commitment Fee Rate shall be
(i) for the first 35 days subsequent to such due date, the Commitment Fee
Rate in effect prior to such due date and (ii) thereafter, that set forth
opposite a Debt Ratio captioned "4.75x," in either case, until the date of
delivery of such financial statements and compliance certificate.
"Commitment Percentage": as to the Commitment of any Lender with
---------------------
respect to any Type of Loan at any time, the percentage which the
Commitment of such Lender with respect to such Type of Loan then
constitutes of the aggregate Commitments with respect to such Type of Loan
(or, at any time after such Commitments shall have expired or terminated,
the percentage which the aggregate amount of the Aggregate Outstanding
Extensions of Credit of such Lender with respect to such Type of Loan
constitutes of the aggregate amount of the Aggregate Outstanding Extensions
of Credit of all Lenders with respect to such Type of Loan).
"Commitment Period": the period from and including the Effective Date
-----------------
to but not including the Revolving Loan Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as provided
herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 (b) or (c) of the
Code.
"Confirmation Agreement": the Confirmation Agreement dated as of the
----------------------
date hereof substantially in the form of Exhibit G, by the Borrower and the
other Credit Parties in favor of
6
<PAGE>
the Agents and the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time.
"Consolidated": consolidation in accordance with GAAP, but excluding
------------
any Unrestricted Subsidiary.
"Consolidated Cash Interest Expense": as of the last day of any
----------------------------------
fiscal quarter, the amount of interest expense, payable in cash of the
Borrower and its Restricted Subsidiaries determined in accordance with
GAAP, for the four fiscal quarters ended on such date; provided that for
any calculation of Consolidated Cash Interest Expense for any fiscal period
ending during the first three full fiscal quarters following June 30, 1998,
Consolidated Cash Interest Expense shall be deemed to be Consolidated Cash
Interest Expense from June 30, 1998 to the last day of such period
multiplied by a fraction the numerator of which is 365 and the denominator
of which is the number of days from June 30, 1998 to the last day of such
period.
"Consolidated EBITDA": as of the last day of any fiscal quarter,
-------------------
Consolidated Net Income for such quarter (excluding without duplication,
(w) noncash compensation expenses related to common stock and other equity
securities issued to employees, (x) extraordinary or non-recurring gains
and losses in accordance with GAAP, (y) gains or losses on discontinued
operations and (z) any FAS 121 writedowns, in each case for such quarter),
plus (i) consolidated interest expense for such quarter, determined in
accordance with GAAP, plus (ii) any minority interests share of income and
losses plus (iii) to the extent deducted in computing such Consolidated Net
Income, the sum of all income taxes, depreciation, depletion and
amortization of property, plant, equipment and intangibles, in each case
for such quarter.
"Consolidated Net Income": for any fiscal period, net income of the
-----------------------
Borrower and its Restricted Subsidiaries for such period, determined in
accordance with GAAP.
"Consolidated Total Debt": at any date, all indebtedness of the
-----------------------
Borrower and its Restricted Subsidiaries outstanding on such date for
borrowed money, the deferred purchase price of property (other than (i)
current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices and accrued expenses
incurred in the ordinary course of business, (ii) obligations under federal
coal leases, (iii) obligations under coal leases which may be terminated at
the discretion of the lessee and (iv) deferred purchase obligations in
connection with the acquisition of the Martinka mine) and all obligations
of the Borrower and its Restricted Subsidiaries in respect of Financing
Leases; provided, that Consolidated Total Debt shall not include, in any
event, Non-Recourse Debt.
"Consolidated Working Capital": at any date, the excess of (a) the sum
----------------------------
of all amounts (other than cash and Cash Equivalents) that would, in
accordance with GAAP, be set forth opposite the caption "total current
-------------
assets"any like caption) on a consolidated balance sheet of the Borrower
------
and its Restricted Subsidiaries at such date minus (b) the sum of all
amounts that would, in accordance with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a consolidated
-------------------------
balance sheet of the Borrower and its Restricted Subsidiaries on such date
(excluding, to the extent it would otherwise be included under current
liabilities, any short-term Consolidated Total Debt and the current portion
of any long-term Consolidated Total Debt).
7
<PAGE>
"Constitutional Documents": as to any Person, the articles or
------------------------
certificate of incorporation and by-laws, partnership agreement or other
organizational documents of such Person.
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Documents": this Agreement, the Notes, the Applications, the
----------------
Subordination Agreement, the Security Documents and the Confirmation
Agreement.
"Credit Event": the obligation of any Lender to make a Loan or of the
------------
Issuing Lender to issue a Letter of Credit.
"Credit Parties": the Borrower and each Subsidiary of the Borrower
--------------
which is a party to a Credit Document.
"Darex": Darex Capital Inc., a corporation organized under the laws of
-----
the Republic of Panama.
"Debt Ratio": as at the last day of any fiscal quarter, the ratio of
----------
(a) Consolidated Total Debt on such date to (b) Consolidated EBITDA for the
four fiscal quarters ended on such date.
"Default": any of the events specified in Section 8, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
------- -
America.
"EBITDA": for any Person, as of the last day of any fiscal quarter,
------
Net Income of such Person for such quarter (excluding without duplication,
(w) noncash compensation expenses related to common stock and other equity
securities issued to employees, (x) extraordinary or non-recurring gains
and losses in accordance with GAAP, (y) gains or losses on discontinued
operations and (z) any FAS 121 writedowns, in each case, for such quarter),
plus (i) consolidated interest expense for such quarter, determined in
accordance with GAAP, plus (ii) any minority interests share of income and
losses plus (iii) to the extent deducted in computing such Net Income, the
sum of all income taxes, depreciation, depletion and amortization of
property, plant, equipment and intangibles, in each case, for such quarter.
"Effective Date": the first date on which all of the conditions
--------------
precedent set forth in subsection 5.1 have been satisfied.
"Equity Documents": the Employment Agreement by and between the
----------------
Borrower and certain management parties; the 1998 Option Plan for Key
Employees of the Borrower; the Common Stock Subscription Agreement between
the Borrower and certain purchasers of its common stock; the Non-Qualified
Stock Option Agreement made by and between the Borrower and certain
employees of the Borrower or a Subsidiary or Affiliate of the Borrower; the
Dragline Management Proposal; the Stockholders Agreement among the
Borrower,
8
<PAGE>
LBMBP II, certain affiliates of LBMBP II entities and certain management
investors; the Common Stock/Preferred Stock Subscription Agreement between
the Borrower and certain other parties; and each other agreement governing
the initial equity capitalization of the Borrower and the rights of the
equity holders of the Borrower; as each may be amended, modified or
supplemented from time to time not in violation of the terms hereof.
"Equity Investment": the $480,000,000 equity contribution to be made
-----------------
to the Borrower pursuant to the Equity Documents by LBMBP II, its
Affiliates and certain members of existing management of the Borrower.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Escrow Date": May 18, 1998.
-----------
"Event of Default": any of the events specified in Section 8,
----------------
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess
----------------
of (a) the sum, without duplication, of (i) Consolidated Net Income for
such fiscal year, (ii) the net decrease, if any, in Consolidated Working
Capital during such fiscal year, (iii) to the extent deducted in computing
such Consolidated Net Income, non-cash interest expense, depreciation,
depletion and amortization for such fiscal year, (iv) extraordinary non-
cash losses during such fiscal year subtracted in the determination of
Consolidated Net Income for such fiscal year, (v) net decrease in deferred
income tax assets or net increase in deferred income tax liabilities of the
Borrower and its Restricted Subsidiaries for such fiscal year, (vi) non-
cash losses in connection with asset dispositions whether or not
constituting extraordinary losses and (vii) non-cash ordinary losses over
----
(b) the sum, without duplication, of (i) the aggregate amount of permitted
cash Capital Expenditures made by the Borrower and its Restricted
Subsidiaries during such fiscal year, (ii) the net increase, if any, in
Consolidated Working Capital during such fiscal year, (iii) the aggregate
amount of payments of principal in respect of any Indebtedness not
prohibited hereunder during such fiscal year (other than prepayments of
Revolving Credit Loans not accompanied by reductions of the Commitments and
prepayments of other short-term lines of credit), (iv) net increase in
deferred income tax assets or net decrease in deferred income tax
liabilities of the Borrower and its Restricted Subsidiaries for such fiscal
year, (v) extraordinary non-cash gains during such fiscal year added in the
determination of Consolidated Net Income for such fiscal year, (vi) non-
cash gains in connection with asset dispositions whether or not
constituting extraordinary gains and (vii) non-cash ordinary gains.
"Excess Cash Flow Payment Date": in respect of any fiscal year, the
-----------------------------
date on which the Borrower is required to deliver audited financial
statements for such fiscal year to each Lender pursuant to subsection
6.1(a).
"Federal Funds Rate": means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighed
average of the per annum rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds
brokers as published by the Federal Reserve Bank of New York for
9
<PAGE>
such day (or, if such rate is not so published for any day, the average of
the rates quoted by three federal funds brokers to the Administrative Agent
on such day on such transactions).
"Final Maturity Date": June 30, 2006.
-------------------
"Financing Lease": any lease of property, real or personal, the
---------------
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Subsidiary": any Subsidiary which is organized under the
------------------
laws of any jurisdiction outside the United States or under the laws of the
U.S. Virgin Islands, excluding any such Subsidiary that is, as of the date
of determination, treated as (i) a domestic entity or (ii) a partnership or
a division of a domestic entity, in each case for United States federal
income tax purposes.
"FRB": means the Board of Governors of the Federal Reserve System,
---
and any governmental authority succeeding to any of its principal
functions.
"GAAP": generally accepted accounting principles in the United States
----
of America in effect on March 31, 1998; provided, that with respect to
Australian Subsidiaries of the Borrower, "GAAP" shall mean generally
accepted accounting principles in Australia to the extent such principles
are permitted to be applied in accordance with generally accepted
accounting principles in the United States of America.
"Gold Fields": Gold Fields Mining Corporation, a Delaware
-----------
corporation.
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
----------------------------------
Agreement, dated as of May 14, 1998, substantially in the form of Exhibit
B, among the Borrower, the Subsidiaries from time to time party thereto and
the Original Administrative Agent (as predecessor-in-interest to the
Administrative Agent), for the benefit of the Agents and the Lenders, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
-------------------- -------------------
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to the
extent the guaranteeing person has issued a reimbursement, counterindemnity
or similar obligation in order to induce the creation of such obligation,
in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of any
-------------------
other third Person (the "primary obligor") in any manner, whether directly
---------------
or indirectly, including, without limitation, reimbursement obligations
under letters of credit and any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to
10
<PAGE>
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include (i) indemnification or
reimbursement obligations under or in respect of Surety Bonds, (ii)
ordinary course performance guarantees by any Credit Party of the
obligations (other than for the payment of borrowed money) of any other
Credit Party and (iii) endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of
(a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b)
the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Hedge Agreement": any Interest Rate Agreement, and any currency
---------------
future or option contract, commodities future or option contract for
materials used in the ordinary course of business and other similar
agreements.
"Indebtedness": of any Person at any date, (a) all indebtedness of
------------
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices and accrued expenses incurred in the ordinary course of
business), (b) any other indebtedness of such Person which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person,
(e) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof, (f) all Attributable Debt of such Person with
respect to sale and leaseback transactions of such Person, (g) obligations
of such Person in respect of Hedge Agreements and (h) all obligations of
such Person for Production Payments from property operated by or on behalf
of such Person.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Interest Payment Date": (a) as to any Base Rate Loan, the last
---------------------
Business Day of each March, June, September and December, (b) as to any
LIBOR Loan having an Interest Period of three months or less, the last
Business Day of such Interest Period, and (c) as to any LIBOR Loan having
an interest period longer than three months, (i) each Business Day which is
three months or a whole multiple thereof after the first day of such
Interest Period and (ii) the last Business Day of such Interest Period.
"Interest Period": with respect to any LIBOR Loan:
---------------
11
<PAGE>
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such LIBOR Loan
and ending one, two, three or six, and to the extent available to all
the Lenders, nine or twelve months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
preceding Interest Period applicable to such LIBOR Loan and ending
one, two, three or six, and to the extent available to all the
Lenders, nine or twelve months thereafter, as selected by the Borrower
by irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period pertaining to a LIBOR Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the immediately preceding Business Day;
(ii) any Interest Period for any Loan that would otherwise
extend beyond the Termination Date of such Loan shall end on the
Termination Date of such Loan;
(iii) any Interest Period pertaining to a LIBOR Loan that begins
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month in
which such Interest Period would otherwise be scheduled to end) shall
end on the last Business Day of the appropriate calendar month; and
(iv) no Interest Period with respect to any portion of any Type
of Term Loan shall extend beyond a date on which the Borrower is
required to make a scheduled payment of principal of Term Loans of
such Type unless the sum of (a) the aggregate principal amount of Term
Loans of such Type that are Base Rate Loans plus (b) the aggregate
principal amount of Term Loans of such Type that are LIBOR Rate Loans
with Interest Periods expiring on or before such date equals or
exceeds the principal amount required to be paid on Term Loans of such
Type on such date.
"Interest Rate Agreement": any interest rate swap agreement, interest
-----------------------
rate cap agreement, interest rate collar agreement, interest rate future or
option contract, or other similar agreement or arrangement.
"Interest Rate Agreement Obligations": the obligations of the
-----------------------------------
Borrower or any of its Subsidiaries to make payments to counterparties
under Interest Rate Agreements in the event of the occurrence of a
termination event thereunder.
"Investments": as defined in subsection 7.9.
-----------
12
<PAGE>
"Issuing Lender": Such Lender or Lenders that agree to act as Issuing
--------------
Lender at the request of the Administrative Agent and the Borrower.
"Joint Venture": any Person (other than a Subsidiary) in which the
-------------
Borrower and its Subsidiaries collectively hold a percentage ownership
interest of no greater than fifty percent (50%).
"LBMBP II": Lehman Brothers Merchant Banking Partners II L.P., a
--------
Delaware limited partnership.
"LCPI": as defined in the preamble to this Agreement.
----
"L/C Commitment": $330,000,000.
--------------
"L/C Fee Payment Date": the last Business Day of each March, June,
--------------------
September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": the collective reference to all the Revolving
----------------
Credit Lenders other than the Issuing Lender.
"Lender" and "Lenders": the persons identified as Lenders and listed
--------------------
on the signature pages of this Agreement (including the Issuing Lender and
the Swing Line Lender), together with their successors and permitted
assigns pursuant to subsection 10.6; provided that the term "Lenders", when
-------- -------
used in the context of a particular Commitment, shall mean Lenders having
that Commitment.
"Letters of Credit": as defined in subsection 3.1(a).
-----------------
"LIBOR": the rate appearing on Page 3750 of the Telerate Service (or
-----
on any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior
to commencement of such Interest Period, as the rate of interest for dollar
deposits in the approximate amount of the Loan to be made or continued as,
or converted into, a LIBOR Rate Loan and having a maturity comparable to
such Interest Period. In the event that such rate is not available at such
time for any reason, then LIBOR shall be the rate of interest per annum
determined by the Administrative Agent to be the arithmetic mean (rounded
upward to the next 1/16th of 1%) of the rates of interest per annum
notified to the Administrative Agent by each Reference Bank as the rate of
interest at which dollar deposits in the approximate amount of the amount
of the Loan to be made or continued as, or converted into, a LIBOR Rate
Loan by such Reference Bank and having a maturity comparable to such
Interest Period would be offered to such
13
<PAGE>
Reference Bank in the London interbank market at its request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"LIBOR Loans": Loans the rate of interest applicable to which is
-----------
based upon the LIBOR Rate.
"LIBOR Rate": means, for any Interest Period, with respect to LIBOR
----------
Loans comprising part of the same borrowing, the rate of interest per annum
(rounded upward to the next 1/16th of 1%) determined by the Administrative
Agent as follows:
LIBOR Rate = LIBOR
------------------------------
1.00 - LIBOR Reserve Percentage
"LIBOR Reserve Percentage": for any day for any Interest Period the
------------------------
maximum reserve percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency liabilities").
------------------------
"Lien": any mortgage, deed of trust, charge, pledge, hypothecation,
----
assignment, easement, deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or any preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
----
"Martinka mine": the closed deep mine located in Marion County, West
-------------
Virginia, also known as the Tygart River Mine.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, assets, operations, property or condition (financial or
otherwise) of the Borrower and its Restricted Subsidiaries taken as a
whole, (b) the validity or enforceability of this or any of the other
Credit Documents or the rights or remedies of the Agents or the Lenders
hereunder or thereunder, (c) the value of the Collateral considered as a
whole or the ability of the Agents and the Lenders to realize thereon or
(d) the Transaction.
"Materials of Environmental Concern": any hazardous or toxic
----------------------------------
substances, materials or wastes, defined or regulated as such in or under,
or that could give rise to liability under, any applicable Mining and
Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls, urea-formaldehyde insulation, gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products.
"Mine": any excavation or opening into the earth now and hereafter
----
made from which Coal is or can be extracted on or from any of the
properties owned or leased by any Credit Party, together with all
appurtenances, fixtures, structures, improvements, and all tangible
14
<PAGE>
property of whatsoever kind or nature in connection therewith, including
without limitation the Mines described in Schedule 4.25.
"Mining and Environmental Laws": any and all applicable current and
-----------------------------
future federal, state, local and foreign statutes, laws, regulations,
guidances, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions or common law causes of action relating to mining operations
and activities or to the environment or to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment
including ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes or to the
reclamation of lands. Mining and Environmental Laws shall include, but not
be limited to the Federal Coal Leasing Amendments Act, the Surface Mining
Control and Reclamation Act, all other land reclamation and use statutes
and regulations, the Federal Coal Mine Health and Safety Act, the
Comprehensive Environmental Response, Compensation, and Liability Act; the
Resource Conservation and Recovery Act; the Toxic Substances Control Act;
the Federal Water Pollution Control Act; the Hazardous Materials
Transportation Act; the Clean Air Act; the Safe Drinking Water Act; the
Occupational Safety and Health Act; the Federal Insecticide, Fungicide and
Rodenticide Act; the Endangered Species Act, the Black Lung Act and the
Coal Act, each as amended, and their state and local counterparts or
equivalents.
"Mining and Environmental Permits": any and all permits, licenses,
--------------------------------
registrations, notifications, exemptions and any other authorization
required under any applicable Mining and Environmental Law.
"Minority Interests": the 1% interests of Peabody Investments, Inc. in
------------------
CL Hartford, L.L.C., a Delaware limited liability company, and Citizens
Power Sales, a Delaware general partnership.
"Mortgages": the collective reference to the mortgages, deeds of
---------
trust, fixture filings (whether recorded as part of such mortgages or deeds
of trust or as separate instruments), assignments of rent, and any other
functionally similar instruments or agreements, securing the obligations
under the Credit Documents, and covering certain real property (whether
owned or leased) of the Borrower or the appropriate Restricted Subsidiary
as contemplated hereunder, to be executed and delivered by the Borrower or
such Restricted Subsidiary in form and substance reasonably satisfactory to
the Agents, as the same may be amended, supplemented or otherwise modified
from time to time (individually, a "Mortgage").
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 3(37) or Section 4001(a)(3) of ERISA.
"Net Income": for any Person for any fiscal period, net income of
----------
such Person for such period, determined in accordance with GAAP.
"Net Proceeds": the aggregate cash proceeds (including Cash
------------
Equivalents) received by the Borrower or any of its Restricted Subsidiaries
in respect of:
15
<PAGE>
(a) any issuance after the Closing Date by the Borrower or any
of its Restricted Subsidiaries of (i) indebtedness for borrowed money
and (ii) any other indebtedness of the Borrower or its Restricted
Subsidiaries evidenced by a note, bond, debenture or similar
instrument;
(b) any Asset Sale by the Borrower or any Restricted Subsidiary;
and
(c) any cash payments received in respect of promissory notes or
other evidences of indebtedness delivered to the Borrower or such
Restricted Subsidiary in respect of any such Asset Sale;
in each case net of (without duplication) (i), (A) in the case of an Asset
Sale, the amount required to repay any Indebtedness (other than the Loans)
secured by a Lien on any assets of the Borrower or a Subsidiary of the
Borrower that are sold or otherwise disposed of in connection with such
Asset Sale and (B) reasonable and appropriate amounts established by the
Borrower or such Subsidiary, as the case may be, as a reserve against
liabilities associated with such Asset Sale and retained by the Borrower or
such Subsidiary, (ii) the reasonable expenses (including legal fees and
brokers' and underwriters' commissions, lenders fees, credit enhancement
fees, accountants' fees, investment banking fees, survey costs, title
insurance premiums and other customary fees, in any case, paid to third
parties or, to the extent permitted hereby, Affiliates) incurred in
effecting such issuance or sale and (iii) any taxes reasonably attributable
to such sale and reasonably estimated by the Borrower or such Subsidiary to
be actually payable.
"Non-Excluded Taxes": as defined in subsection 2.15(a).
------------------
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
-----------------
Borrower nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) other than a pledge of the equity interests of any
Unrestricted Subsidiary, (b) is directly or indirectly liable (as a
guarantor or otherwise) other than by virtue of a pledge of the equity
interests of any Unrestricted Subsidiary, or (c) constitutes the lender;
(ii) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against any
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both)
any holder of any other Indebtedness (other than the Obligations) of the
Borrower or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and (iii) as to which the lenders
thereunder will not have any recourse to the Capital Stock or assets of the
Borrower or any of its Restricted Subsidiaries (other than the equity
interests of any Unrestricted Subsidiary).
"Non-U.S. Lender": as defined in subsection 2.15(b).
---------------
"Notes": the Tranche A Term Notes, the Tranche B Term Notes, the
-----
Revolving Credit Notes and the Swing Line Note (or any of them as the case
may be).
"Notice of Borrowing": as defined in subsection 2.2.
-------------------
"Obligations": as defined in the Security Documents.
-----------
16
<PAGE>
"Offer": as defined in the recitals to this Agreement.
-----
"Operating Equipment": all surface and subsurface machinery,
-------------------
equipment, facilities and other property of every kind or nature now owned
or hereafter acquired (by purchase or lease) by the Borrower or any
Subsidiary, which are useful for the processing or transportation of Coal,
including, but not by way of limitation, all hoisting shafts, air shafts,
draglines, miners, longwall units, engines, boilers, dynamos, generators,
belts and conveyor belts and other electrical apparatus, drills, machinery
and tipples, store houses and other buildings of every kind, used in
connection with the Mines; and all trucks, shovels, endloaders, dozers,
loaders, tools, supplies, equipment and personal property of every kind or
nature now owned or hereafter acquired by the Borrower or any Subsidiary
for use, or used in connection with the Mines or the processing and
transportation of Coal.
"Original Administrative Agent": as defined in the preamble to this
-----------------------------
Agreement.
"Original Agents": the "Agents" under and as defined in the Original
---------------
Credit Agreement.
"Original Credit Agreement": as defined in the preamble to this
-------------------------
Agreement.
"Original Documentation Agent": as defined in the preamble to this
----------------------------
Agreement.
"Original Lender": as defined in the preamble to this Agreement.
---------------
"Participants": as defined in subsection 10.6(b).
------------
"Participation Agreement": the Agreement dated as of March 2, 1998,
-----------------------
between TU and LBMBP II, relating to the Offer and the Acquisition, as the
same may be amended, modified or supplemented from time to time not in
violation of the terms hereof.
"Patent Security Agreements": the agreements dated as of the date
--------------------------
hereof by certain Credit Parties in favor of the Administrative Agent, for
the benefit of the Agents and the Lenders, substantially in the form of
Exhibit I.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA, or any successor thereto.
"Peabody Australia": Peabody Australia Ltd., a private limited
-----------------
company incorporated in England and Wales.
"Permitted Liens": Liens permitted to exist under subsection 7.3.
---------------
"Person": an individual, partnership, corporation, business trust,
------
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"PHCI": Peabody Holding Company, Inc., a New York corporation.
----
17
<PAGE>
"Plan": at a particular time, any employee benefit plan as defined in
----
Section 3(3) of ERISA which the Borrower or any Commonly Controlled Entity
maintains, administers, contributes to or is required to contribute to, or
under which the Borrower or any Commonly Controlled Entity could reasonably
be expected to incur any liability.
"Pro Forma Financial Statements": as defined in subsection 4.1(b).
------------------------------
"Production Payments": with respect to any Person, shall mean all
-------------------
production payment obligations and other similar obligations with respect
to coal and other natural resources of such Person that are recorded as a
liability or deferred revenue on the financial statements of such Person in
accordance with GAAP.
"Properties": as defined in subsection 4.16.
----------
"Prudential Note": that certain 5% Subordinated Income Note Due March
---------------
1, 2007, made by PHCI in favor of The Prudential Insurance Company of
America (as successor-in-interest to Kennecott Copper Corporation), dated
June 30, 1977 (as amended by Amendment No. 1 dated as of February 8, 1991,
and Amendment No. 2 dated as of September 9, 1992), in an original
principal amount of $400,000,000.
"Purchase Agreement": the Purchase Agreement dated as of May 18,
------------------
1998, among the Borrower, Lehman Brothers Inc. and the Guarantors party
thereto pursuant to which Lehman Brothers Inc. agreed to purchase from the
Borrower the Senior Notes and the Subordinated Notes.
"Reference Bank": each of the Administrative Agent and Bank of
--------------
America National Trust & Savings Association.
"Refinancing Indebtedness": as defined in subsection 7.2(j).
------------------------
"Refunded Swing Line Loan": as defined in subsection 2.1(b)(iii).
------------------------
"Register": as defined in subsection 10.6(d).
--------
"Registration Rights Agreement": the Registration Rights Agreement,
-----------------------------
dated as of May 18, 1998, between the Borrower and Lehman Brothers Inc.
"Regulation H": Regulation H of the FRB as in effect from time to
------------
time.
"Regulation U": Regulation U of the FRB as in effect from time to
------------
time.
"Regulation X": Regulation X of the FRB as in effect from time to
------------
time.
"Reimbursement Obligation": the obligation of the Borrower to
------------------------
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts drawn
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
18
<PAGE>
"Reportable Event": any of the events set forth in Section 4043(c) of
----------------
ERISA, other than those events as to which the thirty-day notice period is
waived under the regulations of the PBGC.
"Required Lenders": at any time, Lenders the Commitment Percentages
----------------
for all Types of Loans of which aggregate more than 50%.
"Requirement of Law": as to any Person, the Constitutional Documents
------------------
of such Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Requisite Class Lenders": at any time, (a) for the Class Lenders
-----------------------
having Tranche A Term Loan Exposure, Lenders having or holding no less than
66 2/3% of the aggregate Tranche A Term Loan Exposure of all Lenders, (b)
for the Class Lenders having Revolving Credit Loan Exposure, Lenders having
or holding no less than 66 2/3% of the aggregate Revolving Credit Loan
Exposure of all Lenders, and (c) for the Class Lenders having Tranche B
Term Loan Exposure, Lenders having or holding no less than 66 2/3% of the
aggregate Tranche B Term Loan Exposure of all Lenders.
"Responsible Officer": the chief executive officer, the president or
-------------------
vice president of the Borrower or, with respect to financial matters, the
chief financial officer or treasurer of the Borrower.
"Restricted Subsidiary" of a Person means any Subsidiary of the
---------------------
referent Person that is not an Unrestricted Subsidiary.
"Revolving Credit Commitment": the commitment of a Lender, as set
---------------------------
forth on Schedule I hereto, to make Revolving Credit Loans to the Borrower
----------
pursuant to subsection 2.1(a)(iii) and, to issue and/or purchase
participations in Letters of Credit pursuant to Section 3.
"Revolving Credit Commitments" means such commitments of all Lenders
----------------------------
in the aggregate, which shall be $480,000,000 (subject to the Revolving
Loan Sublimit).
"Revolving Credit Lender": any Lender having a Revolving Credit
-----------------------
Commitment or a Revolving Credit Loan outstanding.
"Revolving Credit Loans": the Loans made (or deemed made) by Revolving
----------------------
Credit Lenders to the Borrower pursuant to subsection 2.1(a)(iii).
"Revolving Credit Loan Exposure": with respect to any Lender as of any
------------------------------
date of determination, (i) if there are no outstanding Letters of Credit or
Revolving Credit Loans, that Lender's Revolving Credit Commitment, and (ii)
otherwise, the sum of (a) the aggregate outstanding principal amount of the
Revolving Credit Loans of that Lender plus (b) in the event that Lender is
an Issuing Lender, the aggregate face amount in respect of all Letters of
Credit issued by that Lender (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any unreimbursed
drawings thereunder) plus (c) in the event that
19
<PAGE>
such Lender is the Swing Line Lender, the aggregate principal amount of
Swing Line Loans made by such Lender then outstanding (net of any
participations purchased by other Lenders in such Swing Line Loans) plus
(d) the aggregate amount of all participations purchased by that Lender in
any outstanding Swing Line Loans or Letters of Credit or any unreimbursed
drawings under any Letters of Credit.
"Revolving Credit Notes": (i) the promissory notes of the Borrower
----------------------
issued pursuant to subsection 2.5(h)(C) on the Effective Date to evidence
the Revolving Credit Loans of any Lender and (ii) any promissory notes
issued by the Borrower pursuant to Section 10.6(d) in connection with
assignments of the Revolving Credit Commitments and Revolving Credit Loans
of any Lenders, in each case substantially in the form of Exhibit A-4
annexed hereto, as they may be amended, supplemented or otherwise modified
from time to time.
"Revolving Loan Sublimit": as of any date of determination the lesser
-----------------------
of (i) the Revolving Credit Commitments then in effect and (ii)
$200,000,000.
"Revolving Loan Termination Date": June 30, 2004.
-------------------------------
"Security Documents": the collective reference to the Guarantee and
------------------
Collateral Agreement, the Patent Security Agreements, the Trademark
Security Agreement, the Mortgages and all other security documents now or
hereafter delivered to the Administrative Agent in connection with the
Original Credit Agreement and/or this Agreement granting a Lien on any
asset or assets of any Person to secure the obligations and liabilities of
the Borrower under the Original Credit Agreement and/or this Agreement and
under any of the other Credit Documents or to secure any guarantee of any
such obligations and liabilities.
"Seller": as defined in the recitals to this Agreement.
------
"Senior Notes": the Borrower's 8 7/8% Senior Notes, due 2008 (the
------------
"Initial Senior Notes"), issued on the Closing Date (or, if earlier, the
---------------------
Escrow Date), and the senior notes of the Borrower, having the same terms
as the Initial Senior Notes, issued in exchange for the Initial Senior
Notes as contemplated by the Senior Notes Documents.
"Senior Notes Documents": the Senior Notes Indenture, the
----------------------
Registration Rights Agreement, the Purchase Agreement and the Senior Notes.
"Senior Notes Indenture": the Indenture among the Borrower, the
----------------------
Guarantors party thereto and State Street Bank and Trust Company, as
trustee, pursuant to which the Senior Notes are issued.
"Similar Business": coal production, coal mining, coal brokering,
----------------
coal transportation, mine development, power marketing, electricity
generation, power/energy sales and trading, energy transactions/asset
restructurings, risk management products associated with energy, fuel/power
integration and other energy related businesses, ash disposal,
environmental remediation, coal, natural gas, petroleum or other fossil
fuel exploration, production, marketing, transportation and distribution
and other related businesses, and activities of the Borrower and its
Subsidiaries as of the date of the closing of the Acquisition and any
business
20
<PAGE>
or activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Specified Subsidiary": any Subsidiary whose EBITDA determined for
--------------------
the fiscal quarter most recently ended prior to the time of determination
hereunder was greater than or equal to 20% of the Consolidated EBITDA of
the Borrower and its Subsidiaries for such fiscal quarter, as determined in
accordance with GAAP.
"Subordinated Notes": the Borrower's 9 5/8% Senior Subordinated
------------------
Notes, due 2008 (the "Initial Subordinated Notes"), issued on the Closing
--------------------------
Date (or, if earlier, the Escrow Date), and the subordinated notes of the
Borrower, having the same terms as the Initial Subordinated Notes, issued
in exchange for the Initial Subordinated Notes as contemplated by the
Subordinated Notes Documents.
"Subordinated Notes Documents": the Subordinated Notes Indenture, the
----------------------------
Purchase Agreement and the Subordinated Notes.
"Subordinated Notes Indenture": the Indenture among the Borrower, the
----------------------------
Guarantors party thereto and State Street Bank and Trust Company, as
trustee, pursuant to which the Subordinated Notes are issued.
"Subordination Agreement": the Subordination Agreement, dated as of
-----------------------
May 19, 1998, substantially in the form of Exhibit H, by the Credit
Parties, as subordinated creditors, in favor of the Original Agents and the
Original Lenders (as predecessors-in-interest to the Agents and the
Lenders), as senior creditors, pursuant to which all Indebtedness of any
Credit Party to any other Credit Party is subordinated to the Obligations.
"Subsidiary": as to any Person, a corporation, partnership or other
----------
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, directly or
indirectly, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
---------- ------------
Subsidiary or Subsidiaries of the Borrower.
"Surety Bonds": surety bonds obtained by the Borrower or any
------------
Restricted Subsidiary in the ordinary course of business consistent with
past practice and the indemnification or reimbursement obligations of the
Borrower or such Restricted Subsidiary in connection therewith as to which
reserves with respect to the underlying obligations are maintained in
accordance with GAAP.
"Swing Line Lender": means LCPI or such other Lender that agrees to
-----------------
act as Swing Line Lender at the request of the Administrative Agent and the
Borrower.
"Swing Line Loans": as defined in Section 2.1(b).
----------------
21
<PAGE>
"TEG": as defined in the recitals to this Agreement.
---
"Term Loan Commitment or Term Loan Commitments": the commitments of a
---------------------------------------------
Lender to make any Term Loans pursuant to subsection 2.1(a); and Term Loan
---------
Commitments means such commitments of all Lenders in the aggregate, which
-----------
shall be $920,000,000.
"Term Loan Exposure": with respect to a Lender of a Type of Term Loan
------------------
as of any date of determination, (i) prior to the termination of all of a
Lender's Commitment with respect to the Term Loans of such Type, that
Lender's Commitment with respect to Term Loans of such Type (or any
portion thereof that has not been terminated) plus the outstanding
principal amount of the Term Loan of such Type of that Lender, and (ii)
after the termination of all of a Lender's Commitment with respect to the
Term Loans of such Type, the outstanding principal amount of the Term Loan
of such Type of that Lender.
"Term Loans": one or more of the Tranche A Term Loans or the Tranche
----------
B Term Loans.
"Termination Date": (i) with respect to Tranche A Term Loans, June
----------------
30, 2004 (the "Tranche A Term Loan Termination Date"); (ii) with respect to
------------------------------------
Tranche B Term Loans, June 30, 2006 (the "Tranche B Term Loan Termination
-------------------------------
Date"); and (iii) with respect to Revolving Credit Loans and Swing Line
----
Loans, the Revolving Loan Termination Date.
"Title Opinion": as defined in subsection 6.10(d).
-------------
"Title Policy": as defined in subsection 6.10(d).
------------
"Total Assets": the total assets of the Borrower and its Consolidated
------------
Subsidiaries, as shown on the most recently available Consolidated balance
sheet of the Borrower.
"Total Commitments": the sum of the Revolving Credit Commitments and
-----------------
the Term Loan Commitments.
"Trademark Security Agreement": the agreement dated as of the date
----------------------------
hereof by a certain Credit Party in favor of the Administrative Agent, for
the benefit of the Agents and the Lenders, substantially in the form of
Exhibit J.
"Tranche": the collective reference to certain LIBOR Loans, all of
-------
which the then current Interest Periods with respect to such LIBOR Loans,
begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day); Tranches may be
identified as "LIBOR Tranches".
--------------
"Tranche A Term Lender": any Lender having a Tranche A Term Loan
---------------------
Commitment or a Tranche A Term Loan outstanding.
"Tranche A Term Loans": the Loans made (or deemed made) by Tranche A
--------------------
Term Lenders to the Borrower pursuant to subsection 2.1(a)(i).
22
<PAGE>
"Tranche A Term Loan Commitment": the commitment of a Tranche A Term
------------------------------
Lender, as set forth on Schedule I hereto, to make a Tranche A Term Loan to
----------
the Borrower pursuant to subsection 2.1(a)(i); and "Tranche A Term Loan
-------------------
Commitments" means such commitments of all Tranche A Term Lenders in the
-----------
aggregate, which shall be $270,000,000.
"Tranche A Term Notes": (i) the promissory notes of the Borrower
--------------------
issued pursuant to subsection 2.5(h)(A) on the Effective Date to evidence
the Tranche A Term Loans of any Lender and (ii) any promissory notes issued
by the Borrower pursuant to subsection 10.6(d) in connection with
assignments of the Tranche A Term Loan Commitments and Tranche A Term Loans
of any Lender, in each case substantially in the form of Exhibit A-1
annexed hereto, as they may be amended, supplemented or otherwise modified
from time to time.
"Tranche B Term Lenders": any Lender having a Tranche B Term Loan
----------------------
Commitment or a Tranche B Term Loan outstanding.
"Tranche B Term Loans": the Loans made (or deemed made) by Tranche B
--------------------
Term Lenders to the Borrower pursuant to subsection 2.1(a)(ii).
"Tranche B Term Loan Commitment": the commitment of a Tranche B Term
------------------------------
Lender to make a Tranche B Term Loan to the Borrower pursuant to subsection
2.1(a)(ii); and "Tranche B Term Loan Commitments" means such commitments of
-------------------------------
all Tranche B Term Lenders in the aggregate, which shall be $650,000,000.
"Tranche B Term Notes": (i) the promissory notes of the Borrower
--------------------
issued pursuant to subsection 2.5(h)(B) on the Effective Date to evidence
the Tranche B Term Loans of any Lender and (ii) any promissory notes issued
by the Borrower pursuant to subsection 10.6(d) in connection with
assignments of the Tranche B Term Loan Commitments and Tranche B Term Loans
of any Lender, in each case substantially in the form of Exhibit A-2
annexed hereto, as they may be amended, supplemented or otherwise modified
from time to time.
"Transaction": the transactions contemplated by the Transaction
-----------
Documents.
"Transaction Documents": (i) the Acquisition Agreement, the
---------------------
Participation Agreement, the Schedules thereto and the documents set forth
on Schedule III hereto, (ii) the Equity Documents, (iii) the Senior Notes
Documents and (iv) the Subordinated Notes Documents.
"Transfer Agreements": as defined in subsection 4.12.
-------------------
"Transferee": as defined in subsection 10.6(f).
----------
"TU": as defined in the recitals to this Agreement.
--
"Type": a Revolving Credit Loan, a Tranche A Term Loan, a Tranche B
----
Term Loan or a Swing Line Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
---------------
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
23
<PAGE>
"Unrestricted Subsidiary": any Subsidiary of the Borrower that is a
-----------------------
Citizens Entity and any other Subsidiary of the Borrower that the Borrower
notifies the Administrative Agent in writing is an "Unrestricted
Subsidiary", but only to the extent that such Citizens Entity or other
Subsidiary (a) has no Indebtedness other than Non-Recourse Debt; (b) is not
a party to any agreement, contract, arrangement or understanding with the
Borrower or any Restricted Subsidiary of the Borrower except as expressly
permitted by subsection 7.11; (c) is a Person with respect to which neither
the Borrower nor any of its Restricted Subsidiaries has any direct or
indirect obligation (x) to subscribe for additional equity interests in
such Person, except with respect to Investments permitted under subsection
7.9(n), or (y) to maintain or preserve such Person's financial condition
(except with respect to performance guarantees expressly permitted under
subsection 7.4(g)) or to cause such Person to achieve any specified levels
of operating results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Borrower or
any of its Restricted Subsidiaries. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary (or is redesignated by the Borrower as a Restricted Subsidiary),
it shall thereafter cease to be an Unrestricted Subsidiary for purposes of
this Agreement, any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Borrower as of such date and any
Investments in such Subsidiary shall be deemed to be Investments in a
Restricted Subsidiary of the Borrower as of such date (and, if such
Indebtedness or Investments are not permitted to be incurred hereunder the
Borrower shall be in default under this Agreement). At the time of any
designation by the Borrower of any Restricted Subsidiary as an Unrestricted
Subsidiary, such designation shall be deemed (A) an Investment in an
Unrestricted Subsidiary in an amount equal to the sum of (i) the net worth
of such designated Restricted Subsidiary immediately prior to such
designation (such net worth to be calculated without regard to any
Guarantee Obligation incurred by such designated Restricted Subsidiary with
respect to the Obligations) and (ii) the aggregate principal amount of any
Indebtedness owed by such designated Restricted Subsidiary to the Borrower
or any other Restricted Subsidiary immediately prior to such designation,
all calculated, except as set forth in the parenthetical to clause (i), on
a consolidated basis in accordance with GAAP and (B) an Asset Sale which
must comply with the provisions of subsections 7.6(b), (l) or (n).
"Upstream Payment": as defined in subsection 7.7.
----------------
"U.S. Taxes": any tax, assessment, or other charge or levy and any
----------
liabilities with respect thereto, including any penalties, additions to
tax, fines or interest thereon, imposed by or on behalf of the United
States or any taxing authority thereof.
"Year 2000 Problem": any significant risk that computer hardware,
-----------------
software or equipment containing embedded microchips essential to the
business or operations of the Borrower or any of its Subsidiaries will not,
in the case of dates or time periods occurring after December 31, 1999,
function at least as effectively and reliably as in the case of dates or
time periods occurring before January 1, 2000, including the making of
accurate leap year calculations.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Credit Document or any certificate or other document made or
delivered pursuant hereto.
24
<PAGE>
(b) As used herein and in any Credit Document, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of similar
------ ------ ---------
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Interrelationship with Original Credit Agreement. As stated in
------------------------------------------------
the preamble hereof, this Credit Agreement is intended to amend and restate the
provisions of the Original Credit Agreement and, notwithstanding any
substitution of Notes as of the Effective Date, except as expressly modified
herein, (a) all of the terms and provisions of the Original Credit Agreement
shall continue to apply for the period prior to the Effective Date, including
any determinations of payment dates, interest rates, Events of Default or any
amount that may be payable to the Original Agents or the Original Lenders (or
their assignees or replacements hereunder), and (b) the Obligations (as defined
in the Original Credit Agreement) under the Original Credit Agreement shall
continue to be paid or prepaid on or prior to the Effective Date, and be secured
by the Collateral, and shall from and after the Effective Date continue to be
owing and be subject to the terms of this Credit Agreement. All references in
the Notes and the other Credit Documents to (i) the Original Credit Agreement or
the "Credit Agreement" shall be deemed to include references to this Credit
Agreement and (ii) the "Lenders" or a "Lender" or to the "Agents" or any Agent
shall mean such terms as defined in this Credit Agreement. As of the Effective
Date all of the covenants set forth in the Original Credit Agreement are of no
further force and effect, it being understood that all obligations of the
Borrower with respect to the Obligations (as defined in the Original Credit
Agreement) shall be governed by this Credit Agreement from and after the
Effective Date.
1.4 Confirmation of Existing Obligations. The Borrower hereby (i)
------------------------------------
confirms and agrees that it is truly and justly indebted to the Lenders (as
assignees of the Original Lender) in the aggregate amount of the Obligations (as
defined in the Original Credit Agreement) outstanding immediately prior to the
Effective Date, including, without limitation, all accrued and unpaid interest,
fees and expenses that are due and owing in respect thereto, (ii) reaffirms and
admits the validity and enforceability of this Agreement and the other Credit
Documents (including the granting of liens and security interests in the
Collateral) and all of its obligations thereunder and (iii) agrees and admits
that, as of the date hereof, it has no defenses to, or offsets or counterclaim
against, any of its obligations to the Agents or any Lender under the Credit
Documents of any kind whatsoever.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments. (a) Subject to the terms and conditions hereof,
-----------
each Lender severally agrees to make the loans described in this subsection
2.1(a), as applicable, to the Borrower.
25
<PAGE>
(i) Tranche A Term Loans. Each Tranche A Term Lender shall be
--------------------
deemed to have made a term loan to the Borrower on the Effective Date
in an aggregate principal amount equal to such Lender's Tranche A Term
Loan Commitment. Amounts borrowed under this subsection 2.1(a)(i) and
subsequently repaid may not be reborrowed.
(ii) Tranche B Term Loans. Each Tranche B Term Lender shall be
--------------------
deemed to have made a term loan to the Borrower on the Effective Date
in an aggregate principal amount equal to such Lender's Tranche B Term
Loan Commitment. Amounts borrowed under this subsection 2.1(a)(ii)
and subsequently repaid may not be reborrowed.
(iii) Revolving Credit Loans. To the extent that any Revolving
----------------------
Credit Loans are outstanding under the Original Credit Agreement on
the Effective Date, each Revolving Credit Lender shall be deemed to
have made Revolving Credit Loans to the Borrower on the Effective Date
in an aggregate principal amount equal to such Lender's Commitment
Percentage of all Revolving Credit Loans outstanding on the Effective
Date. In addition, subject to the immediately following sentence,
each Revolving Credit Lender severally agrees to make revolving credit
loans to the Borrower, from time to time during the Commitment Period,
in an aggregate principal amount at any one time outstanding which,
when added to the aggregate principal amount of outstanding Swing Line
Loans made by such Lender (or in which such Lender has purchased a
participation) and such Lender's Commitment Percentage of (A) the then
outstanding L/C Obligations and (B) any Revolving Credit Loans then
outstanding, does not exceed the amount of such Lender's Revolving
Credit Commitment. Notwithstanding anything contained in this
Agreement to the contrary, at no time may the amount of Revolving
Credit Loans outstanding exceed the Revolving Loan Sublimit. During
the Commitment Period, the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans, in
whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof.
(b) (i) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make swing line loans (individually, a "Swing Line Loan";
---------------
collectively, the "Swing Line Loans") to the Borrower from time to time during
----------------
the Commitment Period in an aggregate principal amount at any one time
outstanding not to exceed $50,000,000; provided, that no Swing Line Loan shall
be made if, after giving effect thereto and to the simultaneous use of the
proceeds thereof, (A) the aggregate principal amount of Revolving Credit Loans
then outstanding plus the aggregate principal amount of Swing Line Loans then
outstanding would exceed the Revolving Loan Sublimit or (B) the aggregate
principal amount of Revolving Credit Loans then outstanding plus the aggregate
principal amount of Swing Line Loans then outstanding, plus the aggregate amount
of L/C Obligations then outstanding would exceed the Revolving Credit
Commitments of the Revolving Credit Lenders. Until the Termination Date,
Amounts borrowed by the Borrower under this subsection 2.1(b) may be repaid and
reborrowed. All Swing Line Loans shall be made as Base Rate Loans and may not
be converted into LIBOR Loans. In order to borrow a Swing Line Loan, the
Borrower shall give the Swing Line Lender, with a copy to the Administrative
Agent, irrevocable notice (which notice must be received by the Swing Line
Lender prior to 12:00 Noon, New York City time) on the requested Borrowing Date
specifying the amount of
26
<PAGE>
of the requested Swing Line Loan which shall be in a minimum amount of $500,000
or whole multiples of $100,000 in excess thereof. The proceeds of the Swing Line
Loan will be made available by the Swing Line Lender to the Borrower at the
office of the Swing Line Lender by crediting the account of the Borrower at such
office with such proceeds.
(ii) The Swing Line Loans shall be evidenced by a promissory note of
the Borrower, substantially in the form of Exhibit A-4 (the "Swing Line Note"),
---------------
with appropriate insertions, payable to the order of the Swing Line Lender and
representing the obligation of the Borrower to pay the unpaid principal amount
of the Swing Line Loans, with interest thereon as prescribed in subsection 2.9.
The Swing Line Note shall (i) be dated the Effective Date, (ii) be stated to
mature on the Termination Date and (iii) bear interest, payable on the dates
specified in 2.9, for the period from the date thereof to the Termination Date
on the unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum specified in subsection 2.9.
(iii) The Swing Line Lender, at any time in its sole and absolute
discretion, may on behalf of the Borrower (which hereby irrevocably directs the
Swing Line Lender to act on its behalf) request each Lender, including the Swing
Line Lender, to make a Revolving Credit Loan (which shall be a Base Rate Loan)
in an amount equal to such Lender's Commitment Percentage with respect to
Revolving Credit Loans of the Swing Line Loans (the "Refunded Swing Line Loans")
-------------------------
outstanding on the date such notice is given. Unless any of the events
described in subsection 8(f) shall have occurred (in which event the procedures
of subsection 2.1(b)(iv) shall apply) each Lender shall, not later than 12:00
P.M., New York City time, on the Business Day next succeeding the date on which
such notice is given, make available to the Swing Line Lender in immediately
available funds the amount equal to the Revolving Credit Loan to be made by such
Lender. The proceeds of such Revolving Credit Loans shall be immediately
applied to repay the Refunded Swing Line Loans. Upon any request by the Swing
Line Lender to the Lender pursuant to this subsection 2.1(b)(iii), the
Administrative Agent shall promptly give notice to the Borrower of such request.
(iv) If prior to the making of a Revolving Credit Loan pursuant to
subsection 2.1(b)(iii) one of the events described in subsection 8(f) shall have
occurred, each Lender will, on the date such Loan was to have been made,
purchase an undivided participating interest in the Swing Line Loans in an
amount equal to its Commitment Percentage with respect to Revolving Credit
Loans. Each Lender will immediately transfer to the Swing Line Lender, in
immediately available funds, the amount of its participation.
(v) Whenever, at any time after the Swing Line Lender has received
from any Lender such Lender's participating interest in a Swing Line Loan, the
Swing Line Lender receives any payment on account thereof, the Swing Line Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Lender will return to the
Swing Line Lender any portion thereof previously distributed by the Swing Line
Lender to it.
(vi) Each Lender's obligation to purchase participating interests
pursuant to subsection 2.1(b)(iv) shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (a) any set-
off, counterclaim, recoupment, defense or other right which such Lender or the
Borrower may have against the Swing Line Lender, any other Lender or anyone else
for any reason whatsoever, (b) the occurrence or continuance of any Default or
Event
27
<PAGE>
of Default; (c) any adverse change in the condition (financial or otherwise) of
the Borrower; (d) any breach of this Agreement by the Borrower or any other
Lender; or (e) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
(c) Except for Swing Line Loans, which shall be Base Rate Loans, the
Loans may from time to time be (i) LIBOR Loans, (ii) Base Rate Loans or (iii) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.2 and 2.7, provided that
no Revolving Credit Loan shall be made as a LIBOR Loan after the day that is one
month prior to the Termination Date with respect to such Loan.
2.2 Procedure for Borrowing. The Borrower may borrow under the
-----------------------
Commitments during the Commitment Period on any Business Day, provided that the
Borrower shall give the Administrative Agent irrevocable notice substantially in
the form attached as Exhibit D (a "Notice of Borrowing") (which notice must be
-------------------
received by the Administrative Agent prior to (a) 11:00 A.M., New York City
time, three Business Days prior to the requested Borrowing Date, if all or any
part of the requested Loans are to be initially LIBOR Loans, (b) 11:00 A.M., New
York City time, one Business Day prior to the requested Borrowing Date in the
case of a Base Rate Loan and, (c) 11:00 A.M., New York City time, on the
requested Borrowing Date in the case of a Swing Line Loan), specifying (i) the
amount to be borrowed of each Type of Loan, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of LIBOR Loans, Base Rate Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
LIBOR Loans, the respective lengths of the initial Interest Periods therefor.
Each borrowing under the Commitments shall be in an amount equal to (x) in the
case of Base Rate Loans (other than Swing Line Loans), $2,000,000 or a whole
multiple of $100,000 in excess thereof (or, if the then Available Commitments
are less than $2,000,000, such lesser amount), (y) in the case of Swing Line
Loans, as provided in subsection 2.1(b)(i) and (z) in the case of LIBOR Loans,
$5,000,000 or a whole multiple of $100,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each applicable Lender thereof. Each such Lender will make the amount of
its pro rata share of each borrowing available to the Administrative Agent for
the account of the Borrower at the office of the Administrative Agent specified
in subsection 10.2 prior to 11:00 A.M., New York City time (in the case of LIBOR
Loans) or 2:30 P.M., New York City time (in the case of Base Rate Loans), on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent crediting the account of the Borrower on
the books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent. All notices given by the Borrower under this subsection
2.2 may be made by telephonic notice promptly confirmed in writing.
2.3 Commitment Fee. The Borrower agrees to pay to the Administrative
--------------
Agent for the account of each Revolving Credit Lender a commitment fee for the
period from and including the first day of the Commitment Period to and
including the Revolving Loan Termination Date, computed at the Commitment Fee
Rate on the average daily amount of the Available Commitment of such Revolving
Credit Lender during the period for which payment is made, payable in arrears on
the last Business Day of each March, June, September and December and on the
Revolving Loan Termination Date, commencing on the first of such dates to occur
after the date hereof.
2.4 Termination or Reduction of Revolving Credit Commitments. The
--------------------------------------------------------
Borrower shall have the right, upon not less than three Business Days' written
notice to the Administrative Agent, to
28
<PAGE>
terminate the Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments ratably among the Revolving Credit
Lenders; provided that no such termination or reduction shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Credit Loans
made on the effective date thereof, (i) the aggregate principal amount of the
Revolving Credit Loans then outstanding, when added to the outstanding Swing
Line Loans, would exceed the Revolving Loan Sublimit or (ii) the aggregate
principal amount of the Revolving Credit Loans then outstanding, when added to
the then outstanding L/C Obligations and the outstanding Swing Line Loans, would
exceed the Revolving Credit Commitments then in effect. Any such reduction shall
be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall reduce permanently the Revolving Credit Commitments then in
effect.
2.5 Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Scheduled Payments of Tranche A Term Loans. The Borrower shall
------------------------------------------
make principal payments on the Tranche A Term Loans on March 31, June 30,
September 30 and December 31 of each year, commencing on September 30, 1998, in
the amounts set forth opposite the corresponding Payment Date as follows:
[CONTINUED ON NEXT PAGE]
29
<PAGE>
<TABLE>
<CAPTION>
Scheduled Repayment
Payment Date of Tranche A Term Loans
------------ -----------------------
<S> <C>
9/30/98 $ 2,500,000
12/31/98 $ 2,500,000
3/31/99 $ 2,500,000
6/30/99 $ 2,500,000
9/30/99 $ 3,750,000
12/31/99 $ 3,750,000
3/31/00 $ 3,750,000
6/30/00 $ 3,750,000
9/30/00 $ 5,000,000
12/31/00 $ 5,000,000
3/31/01 $ 5,000,000
6/30/01 $ 5,000,000
9/30/01 $12,500,000
12/31/01 $12,500,000
3/31/02 $12,500,000
6/30/02 $12,500,000
9/30/02 $18,750,000
12/31/02 $18,750,000
3/31/03 $18,750,000
6/30/03 $18,750,000
9/30/03 $25,000,000
12/31/03 $25,000,000
3/31/04 $25,000,000
6/30/04 $25,000,000
</TABLE>
provided that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche A Term Loans
and all other amounts owed hereunder with respect to the Tranche A Term Loans
shall be paid in full no later than the Tranche A Term Loan Termination Date,
and the final installment payable by the Borrower in respect of the Tranche A
Term Loans on such date shall be in an amount, if such amount is different from
that specified above, sufficient to repay all amounts owing by the Borrower
under this Agreement with respect to the Tranche A Term Loans.
[CONTINUED ON NEXT PAGE]
30
<PAGE>
(b) Scheduled Payments of Tranche B Term Loans. The Borrower shall
------------------------------------------
make principal payments on the Tranche B Term Loans on March 31, June 30,
September 30 and December 31 of each year, commencing on September 30, 1998, in
the amounts set forth opposite the corresponding Payment Date as follows:
<TABLE>
<CAPTION>
Scheduled Repayment
Payment Date of Tranche B Term Loans
------------ -----------------------
<S> <C>
9/30/98 $ 1,625,000
12/31/98 $ 1,625,000
3/31/99 $ 1,625,000
6/30/99 $ 1,625,000
9/30/99 $ 1,625,000
12/31/99 $ 1,625,000
3/31/00 $ 1,625,000
6/30/00 $ 1,625,000
9/30/00 $ 1,625,000
12/31/00 $ 1,625,000
3/31/01 $ 1,625,000
6/30/01 $ 1,625,000
9/30/01 $ 1,625,000
12/31/01 $ 1,625,000
3/31/02 $ 1,625,000
6/30/02 $ 1,625,000
9/30/02 $ 1,625,000
12/31/02 $ 1,625,000
3/31/03 $ 1,625,000
6/30/03 $ 1,625,000
9/30/03 $ 1,625,000
12/31/03 $ 1,625,000
3/31/04 $ 1,625,000
6/30/04 $ 1,625,000
9/30/04 $ 25,000,000
12/31/04 $ 25,000,000
3/31/05 $ 25,000,000
6/30/05 $ 25,000,000
9/30/05 $127,750,000
12/31/05 $127,750,000
3/31/06 $127,750,000
6/30/06 $127,750,000
</TABLE>
31
<PAGE>
provided that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further that the Tranche B Term Loans
and all other amounts owed hereunder with respect to the Tranche B Term Loans
shall be paid in full no later than the Tranche B Term Loan Termination Date,
and the final installment payable by the Borrower in respect of the Tranche B
Term Loans on such date shall be in an amount, if such amount is different from
that specified above, sufficient to repay all amounts owing by the Borrower
under this Agreement with respect to the Tranche B Term Loans.
(c) Payments on Revolving Credit Loans and Swing Line Loans. The
-------------------------------------------------------
Borrower hereby unconditionally promises to pay to the Administrative Agent on
the Revolving Loan Termination Date (or such earlier date on which the Loans
become due and payable pursuant to Section 8) (i) for the account of each
Revolving Credit Lender the then unpaid principal amount of each Revolving
Credit Loan of such Lender and all other amounts owing to such Lender hereunder
with respect to such Revolving Credit Loan and (ii) for the account of the Swing
Line Lender (and each other Revolving Credit Lender that has purchased a
participation in then outstanding Swing Line Loans) the then unpaid principal
amount of Swing Line Loans and all other amounts owed to such Lender hereunder
with respect to the Swing Line Loans.
(d) Interest. The Borrower hereby further agrees to pay interest on
--------
the unpaid principal amount of the Loans from time to time outstanding from the
date such Loans are made until payment in full thereof at the rates per annum,
and on the dates, set forth in subsection 2.9.
(e) Recording. Each Lender shall maintain in accordance with its
---------
usual practice an account or accounts evidencing indebtedness of the Borrower to
such Lender resulting from each Loan of such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.
(f) Register. The Administrative Agent shall maintain the Register
--------
pursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Loan and each Obligation
evidenced by a Note made hereunder, the Type thereof, whether each such Loan is
a Base Rate Loan or a LIBOR Loan and each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) both the amount
of any sum received by the Administrative Agent hereunder from the Borrower and
each Lender's share thereof.
(g) Prima Facie Evidence. The entries made in the Register and the
--------------------
accounts of each Lender maintained pursuant to subsection 2.5(f) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain the
Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to the Borrower by such Lender in accordance with the terms of this
Agreement.
(h) Notes. The Borrower agrees that the Borrower will execute and
-----
deliver to each Lender a promissory note of the Borrower evidencing (A) the
Tranche A Term Loans of such Lender, substantially in the form of Exhibit A-1
with appropriate insertions as to date and principal amount (a "Tranche A Term
--------------
Note"), (B) the Tranche B Term Loans of such Lender, substantially in
- ----
32
<PAGE>
the form of Exhibit A-2 with appropriate insertions as to date and principal
amount (a "Tranche B Term Note"), and (C) the Revolving Credit Loans of such
--------------------
Lender, substantially in the form of Exhibit A-3 with appropriate insertions as
to date and principal amount ("Revolving Credit Note"). A Note and the
---------------------
Obligation evidenced thereby may be assigned or otherwise transferred in whole
or in part only by registration of such assignment or transfer of such Note and
the Obligation evidenced thereby in the Register (and each Note shall expressly
so provide). Any assignment or transfer of all or part of an Obligation
evidenced by a Note shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Obligation,
duly endorsed by (or accompanied by a written instrument of assignment or
transfer duly executed by) the holder thereof, and thereupon one or more new
Notes shall be issued to the designated Assignee and the old Note shall be
returned by the Administrative Agent to the Borrower marked "cancelled." No
---------
assignment of a Note and the Obligation evidenced thereby shall be effective
unless it shall have been recorded in the Register by the Administrative Agent
as provided in this subsection 2.5(h).
2.6 Optional Prepayments; Mandatory Prepayments and Reduction of
------------------------------------------------------------
Commitments. (a) Subject to subsection 2.16, the Borrower may at any time and
- -----------
from time to time prepay any Loans, in whole or in part, without premium or
penalty, upon irrevocable notice to the Administrative Agent prior to 11:00
A.M., New York City time, three Business Days prior to the date of prepayment,
specifying the date and amount of prepayment, the Type of Loan to be prepaid
(which loans shall be prepaid on a pro rata basis among the applicable Lenders)
and whether the prepayment is of LIBOR Loans, Base Rate Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
applicable Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein, together
with any amounts payable pursuant to subsection 2.16. Partial prepayments shall
be in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof.
(b) (i) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall incur or permit the incurrence of any Indebtedness (other
than Indebtedness permitted pursuant to subsection 7.2), 100% of the Net
Proceeds thereof shall be promptly applied toward the prepayment of the Loans
and permanent reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b). Nothing in this paragraph (b) shall be deemed to permit any
Indebtedness not permitted by subsection 7.2.
(ii) If, subsequent to the Closing Date (or, if earlier, the Escrow
Date), the Borrower or any of its Restricted Subsidiaries shall receive Net
Proceeds from any Asset Sale or series of related Asset Sales in excess of
$500,000, such Net Proceeds shall be promptly applied toward the prepayment of
the Loans and permanent reduction of the Commitments as set forth in clause (iv)
of this subsection 2.6(b); provided that Net Proceeds from any Asset Sales shall
not be required to be so applied to the extent that such Net Proceeds are used
by the Borrower or such Restricted Subsidiary (A) to acquire assets to be
employed in the business of the Borrower or its Restricted Subsidiaries or a
Similar Business of the Borrower or its Restricted Subsidiaries or, (B) to the
extent permitted by subsection 7.9, to acquire (i) equity interests in a Person
engaged in a Similar Business or (ii) assets constituting a business unit of a
Person engaged in a Similar Business, in each case within 358 days of receipt
thereof, but if such Net Proceeds are not so used, 100% of the amount of such
Net Proceeds not so used shall be applied toward the prepayment of the Loans and
the permanent reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b) on the earlier of (x) the 359th day after receipt of such Net
Proceeds and (y) the date on which the Borrower has determined that such
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Net Proceeds shall not be so used. To the extent that more than $50,000,000 in
Net Proceeds from Asset Sales shall at any time remain unused or unapplied as
provided in this subsection 2.6(b)(ii) for a period of more than 60 days, the
Borrower shall deposit all such unused or unapplied Net Proceeds into a cash
collateral account satisfactory to the Administrative Agent established for the
benefit of the Lenders; provided, however, that so long as an Event of Default
shall not have occurred and be continuing, such funds shall be released promptly
upon notice from the Borrower for prompt use or application in accordance with
this subsection 2.6(b)(ii). The Borrower hereby grants to the Administrative
Agent for the benefit of the Lenders, a security interest in such cash
collateral account and cash collateral to secure all obligations of the Borrower
under this Agreement and the other Credit Documents until used or applied as
provided herein.
(iii) If there is Excess Cash Flow for any fiscal year
and the Debt Ratio as of the last day of such fiscal year is greater than 4.0 to
1.0, 75% of such Excess Cash Flow shall be applied toward the prepayment of the
Loans and the permanent reduction of the Commitments as set forth in clause (iv)
of this subsection 2.6(b) on the Excess Cash Flow Payment Date for such fiscal
year. If there is Excess Cash Flow for any fiscal year and the Debt Ratio as of
the last day of such fiscal year is less than or equal to 4.0 to 1.0, 50% of
such Excess Cash Flow shall be applied toward the prepayment of the Loans and
the permanent reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b) on the Excess Cash Flow Payment Date for such fiscal year.
(iv) Any mandatory prepayments of the Loans pursuant to this
subsection 2.6 shall be applied (x) first, to the Tranche A Term Loans and
Tranche B Term Loans on a pro rata basis to reduce the unpaid scheduled
installments of principal of each such Tranche of Term Loans due in the year
2001, (y) second, to the Tranche A Term Loans and the Tranche B Term Loans on a
pro rata basis to reduce the unpaid scheduled installments of principal of each
such Tranche of Term Loans on a pro rata basis, and (z) thereafter to the
permanent reduction of the Revolving Credit Commitment; provided that, in the
case of Tranche B Term Loans, so long as any Tranche A Term Loans are
outstanding, the Tranche B Term Lenders shall have the right to waive such
Lenders' right to receive any portion of such prepayment. The Administrative
Agent shall notify the Tranche B Term Lenders of such receipt and the amount of
the prepayment to be applied to each such Lender's Term Loans; provided, that
the Borrower shall use its reasonable efforts to notify the Tranche B Term
Lenders of such waivable mandatory prepayment three (3) Business Days prior to
the payment to the Administrative Agent of such waivable mandatory prepayment.
In the event any such Tranche B Term Lender desires to waive such Lender's right
to receive any such waivable mandatory prepayment, such Lender shall so advise
the Administrative Agent no later than the close of business on the Business Day
immediately following the date of such notice from the Administrative Agent. In
the event that any such Lender waives such Lender's right to any such waivable
mandatory prepayment, the Administrative Agent shall apply 50% of the amount so
waived by such Lender to prepay the Tranche A Term Loans to reduce unpaid
scheduled installments of principal of the Tranche A Term Loans on a pro rata
basis. The Administrative Agent shall return the remainder of the amount so
waived by such Lender to the Borrower. Revolving Credit Commitment reductions
made pursuant to subsections 2.6(b)(i), (ii) and (iii) shall be applied to each
Lender's Revolving Credit Commitment on a pro rata basis and shall reduce
permanently such Commitments.
(v) If after giving effect to any reduction of the Revolving Credit
Commitments under subsection 2.4 or 2.6 (A) the aggregate outstanding principal
amount of Swing Line Loans plus the aggregate outstanding principal amount of
Revolving Credit Loans shall exceed the Revolving Loan Sublimit or (B) the
amount in clause (A) plus the aggregate outstanding amount of L/C
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Obligations, shall exceed the aggregate amount of the Revolving Credit
Commitments, such reduction shall be accompanied by prepayment in the amount of
such excess to be applied (x) first, to the outstanding Swing Line Loans and (y)
-----
second, to outstanding Revolving Credit Loans (in each case, together with any
- ------
amounts payable under subsection 2.16); provided that, with respect to clause
(B) above, if the aggregate principal amount of Swing Line Loans and Revolving
Credit Loans then outstanding is less than the amount of such excess (because
Letters of Credit constitute a portion of such excess), the Borrower shall
immediately, without notice or demand, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount (but in
no event greater than such balance) in a cash collateral account satisfactory to
the Administrative Agent established for the benefit of the Issuing Lender and
the L/C Participants. The Borrower hereby grants to the Administrative Agent,
for the benefit of the Issuing Lender and the L/C Participants, a security
interest in such cash collateral account and cash collateral to secure all
obligations of the Borrower under this Agreement and the other Credit Documents.
2.7 Conversion and Continuation Options. (a) The Borrower may elect
-----------------------------------
from time to time to convert LIBOR Loans to Base Rate Loans, by giving the
Administrative Agent prior irrevocable notice of such election at or before
11:00 A.M. New York City time, on the Business Day immediately preceding the
date of the proposed conversion and of the amount and Type of Loan to be
converted, provided that any such conversion of LIBOR Loans may only be made on
the last day of an Interest Period with respect thereto. The Borrower may elect
from time to time to convert Base Rate Loans (other than Swing Line Loans) to
LIBOR Loans by giving the Administrative Agent prior irrevocable notice of such
election at or before 11:00 A.M., New York City time, on the third Business Day
immediately preceding the date of the proposed conversion and of the amount and
Type of Loan to be converted. Any such notice of conversion to LIBOR Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each applicable Lender thereof. All or any part of outstanding
LIBOR Loans and Base Rate Loans may be converted as provided herein, provided
that (i) no Loan may be converted into a LIBOR Loan when any Event of Default
has occurred and is then continuing and the Required Lenders have determined in
their sole discretion not to permit such conversion and (ii) no Loan may be
converted into a LIBOR Loan after the date that is one month prior to the
Termination Date with respect to such Loan.
(b) Any LIBOR Loans may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in subsection 1.1, of the length of the
---------------
next Interest Period to be applicable to such Loans and of the amount and Type
of Loan to be continued, provided that no LIBOR Loan may be continued as such
(i) when any Event of Default has occurred and is then continuing and the
Required Lenders have determined in their sole discretion not to permit such
continuation or (ii) after the date that is one month prior to the Termination
Date with respect to such Loan and provided, further, that if the Borrower shall
fail to give such notice or if such continuation is not permitted such Loans
shall be automatically converted to Base Rate Loans on the last day of such then
expiring Interest Period.
(c) All notices given by the Borrower under this subsection 2.7 may
be made by telephonic notice promptly confirmed in writing.
2.8 Minimum Amounts and Maximum Number of Tranches. All borrowings,
----------------------------------------------
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall
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be in such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Loans comprising each
LIBOR Tranche shall be equal to $10,000,000 or a whole multiple of $1,000,000 in
excess thereof. All Loans hereunder may be converted or continued into Base Rate
Loans without reference to the minimum principal amount requirements for new
Base Rate Borrowings set forth in Section 2.2 above. In no event shall there be
more than 25 LIBOR Tranches outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) Each LIBOR Loan shall
--------------------------------
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the LIBOR Rate determined for such day plus the
Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable with respect to each Loan in arrears on
each Interest Payment Date and on the Termination Date with respect to such
Loan, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.10 Computation of Interest and Fees. (a) Interest on Base Rate
--------------------------------
Loans and fees shall be calculated on the basis of a 365- (or 366-, as the case
may be) day year for the actual days elapsed; all other interest shall be
calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a LIBOR Rate. Any change in the interest rate
on a Loan resulting from a change in the Base Rate or the LIBOR Reserve
Percentage shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 2.9(a) or (c).
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2.11 Inability to Determine Interest Rate. If prior to the first day
------------------------------------
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the eurodollar market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the LIBOR Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any LIBOR Loans requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to LIBOR Loans shall be
converted to or continued as Base Rate Loans and (z) any outstanding LIBOR Loans
shall be converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn in writing by the Administrative
Agent (which the Administrative Agent agrees to do when the Administrative Agent
has determined, or has been instructed by the Required Lenders that, the
circumstances that prompted the delivery of such notice no longer exist), no
further LIBOR Loans shall be made or continued as such, nor shall the Borrower
have the right to convert Base Rate Loans to LIBOR Loans.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing by the
-------------------------------
Borrower from the Revolving Credit Lenders hereunder, each payment by the
Borrower on account of any commitment fee hereunder and any reduction of the
Revolving Credit Commitments of Revolving Credit Lenders shall be made pro rata
according to the respective Commitment Percentages of the Revolving Credit
Lenders. Each payment (including each prepayment (other than as provided in
subsection 2.6(b)(iv) of this Agreement)) by the Borrower on account of
principal of and interest on any Term Loans or the Revolving Credit Loans, and
any application by the Administrative Agent of the proceeds of any Collateral,
shall be made pro rata according to the respective outstanding principal amounts
of such Loans then held by the Lenders. All payments (including prepayments) to
be made by the Borrower hereunder in respect of any Loan, whether on account of
principal, interest, Reimbursement Obligations, fees, expenses or otherwise,
shall be made without set off or counterclaim and shall be made prior to 11:00
A.M., New York City time, on the due date thereof to the Administrative Agent,
for the account of the Lenders with respect to such Loans, at the Administrative
Agent's office specified in subsection 10.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
applicable Lenders promptly upon receipt in like funds as received. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative
37
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Agent may assume that such Lender is making such amount available to the
Administrative Agent on such Borrowing Date, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Rate for the period until such Lender
makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's Commitment Percentage of such borrowing is not
made available to the Administrative Agent by such Lender within three Business
Days of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans hereunder, on demand, from the Borrower. The failure of any
Lender to make any Loan to be made by it shall not relieve any other Lender of
its obligation hereunder to make its Loan on such Borrowing Date.
2.13 Illegality. Notwithstanding any other provision herein, if the
----------
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
LIBOR Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make LIBOR Loans, continue LIBOR Loans as such and convert Base
Rate Loans to LIBOR Loans shall forthwith be cancelled and (b) such Lender's
Loans then outstanding as LIBOR Loans, if any, shall be converted automatically
to Base Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a LIBOR Loan occurs on a day which is not the
last day of the then current Interest Period with respect thereto, the Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant to
subsection 2.16. If circumstances subsequently change so that any affected
Lender shall determine that it is no longer so affected, such Lender will
promptly notify the Borrower and the Administrative Agent, and upon receipt of
such notice, the obligations of such Lender to make or continue LIBOR Loans or
to convert Base Rate Loans into LIBOR Loans shall be reinstated.
2.14 Requirements of Law. (a) If the adoption of or any change in
-------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Letter of Credit, any
Application or any LIBOR Loan made by it, or change the basis of taxation
of payments to such Lender in respect thereof (except for Non-Excluded
Taxes that are covered by subsection 2.15 and changes in the rate of net
income taxes (including branch profits taxes and minimum taxes) or
franchise taxes (imposed in lieu of net income taxes) of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the LIBOR Rate hereunder; or
38
<PAGE>
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or issuing or participating in Letters of
Credit or to reduce any amount receivable hereunder in respect thereof, then, in
any such case, the Borrower shall promptly pay such Lender upon written demand
such additional amount or amounts as will compensate such Lender for such
increased cost or reduced amount receivable; provided that before making any
such demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, in its reasonable discretion, in any
legal, economic or regulatory manner) to designate a different LIBOR lending
office if the making of such designation would allow the Lender or its LIBOR
lending office to continue to perform its obligations to make LIBOR Loans or to
continue to fund or maintain LIBOR Loans and avoid the need for, or reduce the
amount of, such increased cost. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify the
Borrower, through the Administrative Agent, of the event by reason of which it
has become so entitled. If the Borrower so notifies the Administrative Agent
within five Business Days after any Lender notifies the Borrower of any
increased cost pursuant to the foregoing provisions of this Section, the
Borrower may convert all LIBOR Loans of such Lender then outstanding into Base
Rate Loans in accordance with the terms hereof.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
prompt written request therefor, the Borrower shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled; provided that the Borrower shall not be required to compensate a
Lender pursuant to this subsection for any increased costs or reductions
incurred more than 90 days prior to the date that such Lender notifies the
Borrower of the Requirement of Law giving rise to such increased costs or
reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Requirement of Law giving rise to such increased
costs or reductions is retroactive, then the 90-day period referred to above
shall be extended to include the period of retroactive effect thereof. A
certificate as to any additional amounts payable pursuant to this subsection,
showing the calculation thereof in reasonable detail, submitted by such Lender
to the Borrower (with a copy to the Administrative Agent) shall be conclusive in
the absence of manifest error. The agreements in this subsection shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
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2.15 Taxes. (a) Except as provided in this subsection 2.15, all
-----
payments made by the Borrower under this Agreement and any Notes shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority ("Taxes"),
-----
excluding Taxes on net income (including, without limitation, branch profits
taxes and minimum taxes) and franchise taxes (imposed in lieu of net income
taxes) imposed on any Agent or any Lender as a result of a present or former
connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld or
------------------
deducted from any amounts payable to any Agent or any Lender hereunder or under
any Note, the amounts so payable to such Agent or such Lender shall be increased
to the extent necessary to yield to such Agent or such Lender (after payment of
all Non-Excluded Taxes) the amount of interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such amounts
payable to any Lender that is not a United States person as defined in Section
7701(a)(30) of the Code with respect to any Taxes that are imposed on amounts
payable to such Lender at the time such Lender becomes a party to this Agreement
or that are attributable to such Lender's failure at any time to comply with the
requirements of paragraph (b) of this subsection. Whenever any Non-Excluded
Taxes are so required to be withheld or deducted, the Borrower shall make any
such required withholding or deduction and remit the full amount withheld or
deducted to the relevant authority in accordance with applicable law, and, as
promptly as possible thereafter, the Borrower shall send to the relevant Agent
for its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof or, if such official receipt was not received, any other proof
of payment reasonably satisfactory to such Agent and Lender.
(b) Each Lender, Assignee and Participant that is not a United States
person as defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall
---------------
deliver to the Borrower and the Administrative Agent, and if applicable, the
assigning Lender (or, in the case of a Participant, solely to the Lender from
which the related participation shall have been purchased) on or before the date
on which it becomes a party to this Agreement (or, in the case of a Participant,
on or before the date on which such Participant purchases the related
participation) either:
(A) two duly completed and signed copies of either Internal Revenue
Service Form 1001 (relating to such Non-U.S. Lender and entitling it to a
complete exemption from withholding of U.S. Taxes on all amounts to be
received by such Non-U.S. Lender pursuant to this Agreement and the other
Credit Documents) or Form 4224 (relating to all amounts to be received by
such Non-U.S. Lender pursuant to this Agreement and the other Credit
Documents), or successor and related applicable forms, as the case may be;
or
(B) in the case of a Non-U.S. Lender that is not a "bank" within the
----
meaning of Section 881(c)(3)(A) of the Code and that cannot comply with the
requirements of clause (A) hereof, (x) a statement in the form of Exhibit E
(or such other form of statement as shall be reasonably requested by the
Borrower (or, in the case of a Participant, the applicable Lender) from
time to time) to the effect that such Non-U.S. Lender is eligible for a
complete
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exemption from withholding of U.S. Taxes under Code Section 871(h) or
881(c), and (y) two duly completed and signed copies of Internal Revenue
Service Form W-8 or successor and related applicable form.
Further, each Non-U.S. Lender agrees (i) to deliver, upon request, to the
Borrower and the Administrative Agent, and if applicable, the assigning Lender
(or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two further duly completed and signed
copies of such Forms 1001 or 4224, as the case may be, or successor and related
applicable forms, on or before the date that any such form expires or becomes
obsolete and promptly after the occurrence of any event requiring a change from
the most recent form(s) previously delivered by it to the Borrower (or, in the
case of a Participant, solely to the Lender from which the related participation
shall have been purchased) in accordance with applicable U.S. laws and
regulations and (ii) in the case of a Non-U.S. Lender that delivers a statement
in the form of Exhibit E (or such other form of statement as shall have been
requested by the Borrower), to deliver to the Borrower and the Administrative
Agent, and if applicable, the assigning Lender, such additional statements and
forms as shall be reasonably requested by the Borrower (or, in the case of a
Participant, the applicable Lender) from time to time unless, in any such case,
any change in law or regulation has occurred subsequent to the date such Lender
(or Participant) became a party to this Agreement (or in the case of a
Participant, the date on which such Participant purchased the related
participation) which renders all such forms inapplicable or which would prevent
such Lender (or Participant) from properly completing and executing any such
form with respect to it and such Lender (or Participant) promptly notifies the
Borrower and the Administrative Agent (or, in the case of a Participant, the
Lender from which the related participation shall have been purchased) if it is
no longer able to deliver, or if it is required to withdraw or cancel, any form
or statement previously delivered by it pursuant to this subsection 2.15(b). The
Borrower hereby agrees that for so long as a Lender that is a Non-U.S. Lender
complies with this subsection 2.15(b), the Borrower shall not withhold any
amounts from any payments made pursuant to this Agreement to such Non-U.S.
Lender, unless the Borrower reasonably determines that it is required by law to
withhold or deduct any amounts from any payments made to such Non-U.S. Lender
pursuant to this Agreement.
(c) The Borrower will indemnify each Agent and each Lender for the
full amount of Non-Excluded Taxes paid by such Agent or such Lender, as the case
may be, and any liability for penalties, interest and expenses (including
reasonable attorney's fees and expenses) arising therefrom or with respect
thereto, whether or not such Non-Excluded Taxes were correctly or legally
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability prepared by an Agent or a Lender, absent manifest
error, shall be final after the date such Agent or such Lender, as the case may
be, makes written demand therefor.
(d) If any Agent or any Lender receives a refund with respect to Non-
Excluded Taxes paid by the Borrower, which in the sole discretion and good faith
judgment of such Lender or Agent is allocable to such payment, it shall promptly
pay such refund to the extent allocable to payment of Non-Excluded Taxes to the
Borrower, net of all out-of-pocket expenses of such Lender incurred in obtaining
such refund, if all the payments due under this subsection 2.15 have been paid
in full; provided, however, that the Borrower agrees to promptly return such
amount, net of any incremental additional costs, to the applicable Agent or
Lender, as the case may be, if it receives notice from the applicable Agent or
Lender that such Agent or Lender is required to repay such refund.
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(e) In addition to its agreements under paragraph (b) of this
subsection, each Lender and each Agent shall, at the request of the Borrower,
use best efforts to provide any certificate or document that such Lender or
Agent could legally provide without any material burden on its part and that
would reduce (or avoid) any Non-Excluded Taxes on payments to it made under this
Agreement or any Notes.
(f) The agreements in this subsection 2.15 shall survive the
termination of this Agreement and the payment of all Loans and other amounts
payable hereunder.
2.16 Indemnity. The Borrower agrees to indemnify each Lender and to
---------
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of LIBOR Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of LIBOR Loans on a day which is not
the last day of an Interest Period with respect thereto (but excluding loss of
margin). Such indemnification under this subsection 2.16 may include an amount
equal to the excess, if any, of (i) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (but excluding loss of margin) over
(ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all amounts payable thereunder.
2.17 Replacement of Lenders. If at any time (a) the Borrower becomes
----------------------
obligated to pay additional amounts described in subsection 2.14 or 2.15 as a
result of any condition described in such subsections, or any Lender ceases to
make LIBOR Loans pursuant to subsection 2.13, (b) any Lender becomes insolvent
and its assets become subject to a receiver, liquidator, trustee, custodian or
other Person having similar powers or (c) any Lender becomes a "Nonconsenting
-------------
Lender" (hereinafter defined), then the Borrower may, on ten Business Days'
- ------
prior written notice to the Administrative Agent and such Lender, replace such
Lender by causing such Lender to (and such Lender shall) assign pursuant to
subsection 10.6 all of its rights and obligations under this Agreement to a
Lender or other financial institution selected by the Borrower and acceptable to
the Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder (including amounts payable under subsection 2.16 as
though such Loans were being paid instead of being purchased); provided that (i)
neither the Administrative Agent nor any Lender shall have any obligation to the
Borrower to find a replacement Lender or other such entity, (ii) in the event of
a replacement of a Nonconsenting Lender or a Lender to which the Borrower
becomes obligated to pay additional amounts pursuant to this subsection 2.17, in
order for the Borrower to be entitled to replace such a Lender, such replacement
must take place no later than 180 days after (A) the date the Nonconsenting
Lender shall have notified the Borrower and the Administrative Agent of its
failure to agree to any requested consent, waiver or amendment or (B) the Lender
shall have demanded payment of additional amounts under one of the subsections
described in this subsection 2.17, as the case may be, and (iii) in no event
shall the Lender hereby replaced be required to pay or surrender to such
replacement Lender or other entity any of the fees
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received by such Lender hereby replaced pursuant to this Agreement. In the case
of a replacement of a Lender to which the Borrower becomes obligated to pay
additional amounts pursuant to subsection 2.14 or 2.15, the Borrower shall pay
such additional amounts to such Lender prior to such Lender being replaced and
the payment of such additional amounts shall be a condition to the replacement
of such Lender. In the event that (x) the Borrower or the Administrative Agent
has requested the Lenders to consent to a departure or waiver of any provisions
of the Credit Documents or to agree to any amendment thereto, (y) the consent,
waiver or amendment in question requires the agreement of all Lenders in
accordance with the terms of subsection 10.1 and (z) the Required Lenders have
agreed to such consent, waiver or amendment, then any Lender who does not agree
to such consent, waiver or amendment shall be deemed a "Nonconsenting Lender."
--------------------
2.18 Certain Fees. Borrower agrees to pay to the Administrative
------------
Agent, for its own account, a non-refundable administration fee in an amount
previously agreed to with the Administrative Agent, payable in advance on the
Closing Date and annually in advance on each anniversary thereof prior to the
earlier of (x) the Final Maturity Date and (y) the payment in full of all Loans
and all other amounts owing under this Agreement.
2.19 Certain Rules Relating to the Payment of Additional Amounts.
-----------------------------------------------------------
(a) Upon the request, and at the expense, of the Borrower, each Lender to which
the Borrower is required to pay any additional amount pursuant to subsection
2.14 or 2.15 shall, at the option of such Lender, either (A) forego payment of
such additional amount from the Borrower or (B) reasonably afford the Borrower
the opportunity to contest, and reasonably cooperate with the Borrower in
contesting, the imposition of any Non-Excluded taxes giving rise to such
payment; provided that (i) such Lender shall not be required to afford the
Borrower the opportunity to so contest unless the Borrower shall have confirmed
in writing to such Lender its obligation to pay such amounts pursuant to this
Agreement and (ii) the Borrower shall reimburse such Lender for its out-of-
pocket costs, including attorneys' and accountants' fees and disbursements
incurred in so cooperating with the Borrower in contesting the imposition of
such Non-Excluded Taxes.
(b) Each Lender agrees that if it makes any demand for payment under
subsection 2.14 or 2.15(a), or if any adoption or change of the type described
in subsection 2.13 shall occur with respect to it, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its reasonable discretion) to designate a different lending office
if the making of such a designation would allow the Lender to continue to make
and maintain LIBOR Loans and would reduce or obviate the need for the Borrower
to make payments under subsection 2.14 or 2.15(a), or would eliminate or reduce
the effect of any adoption or change described in subsection 2.13.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
--------------
hereof, the Issuing Lender, in reliance on the agreements of the Revolving
Credit Lenders set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
-----------------
the Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the Available Commitment
with respect to Revolving Credit Loans of all Revolving Credit Lenders
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less the aggregate principal amount of the Swing Line Loans then outstanding
- ----
would be less than zero.
(b) Each Letter of Credit shall (i) be denominated in Dollars, (ii)
be a standby letter of credit issued to support obligations of the Borrower or
any of its Restricted Subsidiaries, contingent or otherwise and (iii) expire no
later than the earlier of (x) the date that is 12 months after the date of its
issuance and (y) the fifth Business Day prior to the Revolving Loan Termination
Date; provided that any Letter of Credit with an expiration date occurring up to
twelve months after such Letter of Credit's date of issuance may be
automatically renewable for subsequent 12-month periods (but in no event later
than the fifth Business Day prior to the Revolving Loan Termination Date).
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law or any policies of the Issuing Lender.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
-------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit at
any time prior to the fifth Business Day prior to the Revolving Loan Termination
Date by delivering to the Issuing Lender with a copy to the Administrative Agent
at its address for notices specified herein an Application therefor, completed
to the satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may reasonably
request. Upon receipt of any Application, the Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Issuing Lender and the
Borrower. The Issuing Lender shall furnish a copy of such Letter of Credit to
the Borrower and the Administrative Agent (with copies for each Lender) promptly
following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay
-----------------------------------
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit fee with respect to each Letter of Credit,
computed for the period from and including the date of issuance of such Letter
of Credit to the expiration date of such Letter of Credit at a rate per annum
equal to the Applicable Margin then in effect for LIBOR Revolving Credit Loans,
of the aggregate face amount of Letters of Credit outstanding, payable in
arrears on each L/C Fee Payment Date and on the Revolving Loan Termination Date.
Such fee shall be payable to the Administrative Agent to be shared ratably among
the Revolving Credit Lenders in accordance with their respective Commitment
Percentages with respect to Revolving Credit Loans. In addition, the Borrower
shall pay to the Administrative Agent, for the sole account of the Issuing
Lender, a fee equal to 0.250% per annum of the aggregate face amount of
outstanding Letters of Credit payable quarterly in arrears on each L/C Fee
Payment Date and on the Revolving Loan Termination Date.
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(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this subsection.
3.4 L/C Participation. (a) The Issuing Lender irrevocably agrees to
-----------------
sell and hereby sells to each L/C Participant, and, to induce the Issuing Lender
to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing Lender, on
the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's
Commitment Percentage with respect to Revolving Credit Loans from time to time
in effect in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
the Issuing Lender that, if a draft is paid under any Letter of Credit for which
the Issuing Lender is not reimbursed in full by the Borrower in accordance with
the terms of this Agreement, such L/C Participant shall pay to the Issuing
Lender upon demand at the Issuing Lender's address for notices specified herein
an amount equal to such L/C Participant's then Commitment Percentage with
respect to Revolving Credit Loans of the amount of such draft, or any part
thereof, which is not so reimbursed; provided that, if such demand is made prior
to 11:00 A.M., New York City time, on a Business Day, such L/C Participant shall
make such payment to the Issuing Lender prior to the end of such Business Day
and otherwise such L/C Participant shall make such payment on the next
succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to subsection 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Base Rate Loans hereunder. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will,
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<PAGE>
if such payment is received prior to 11:00 A.M., New York City time, on a
Business Day, distribute to such L/C Participant its pro rata share thereof
prior to the end of such Business Day and otherwise the Issuing Lender will
distribute such payment on the next succeeding Business Day; provided, however,
that in the event that any such payment received by the Issuing Lender and
distributed to the L/C Participants shall be required to be returned by the
Issuing Lender, each such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
----------------------------------------
agrees to reimburse the Issuing Lender on the same Business Day on which the
Issuing Lender notifies the Borrower of the date and amount of a draft presented
under any Letter of Credit and paid by the Issuing Lender provided such notice
is received by 1:00 P.M., New York City time, on such Business Day, and the next
Business Day if such notice is received after such time. The Issuing Lender
shall provide notice to the Borrower on each Business Day on which a draft is
presented and paid by the Issuing Lender indicating the amount of (i) such draft
so paid and (ii) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this subsection from the date a draft presented under any
Letter of Credit is paid by the Issuing Lender until payment in full (i) at the
rate which would be payable on any Loans that are Base Rate Loans at such time
until such payment is required to be made pursuant to subsection 3.5(a), and
(ii) thereafter, at the rate which would be payable on any Loans that are Base
Rate Loans at such time which were then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under
--------------------
subsection 3.5(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged (unless the Issuing Lender has actual knowledge of such
invalidity, fraud or forgery), or (ii) any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the
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<PAGE>
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Administrative Agent of the date and amount thereof. If any
draft shall be presented for payment under any Letter of Credit, the
responsibility of the Issuing Lender to the Borrower in connection with such
draft shall, in addition to any payment obligation expressly provided for in
such Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment appear on their face to be in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
-----------
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall govern and control.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Issuing Lender, the Swing Line Lender and
the Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Agents, the Issuing Lender, the Swing Line Lender and each
Lender that:
4.1 Financial Statements and Condition. (a) The Borrower has
----------------------------------
heretofore furnished to the Lenders the combined balance sheet and statements of
income and retained earnings and cash flows of the Acquired Subsidiaries, in
each case as of and for the fiscal year most recently ended, as applicable.
Such financial statements present fairly in all material respects the financial
condition, results of operations and cash flows of the Acquired Subsidiaries as
of such dates and for such periods in accordance with GAAP.
(b) The Borrower has heretofore delivered to the Lenders its
unaudited pro forma consolidated balance sheet as of December 31, 1997 (the "Pro
---
Forma Financial Statements"), prepared giving effect to the Transactions as if
- --------------------------
they had occurred on such date and unaudited pro forma condensed statements of
income for the twelve and nine months ended December 31, 1997 and the year ended
March 31, 1997, assuming the Transactions had actually occurred on April 1,
1997. Such pro forma financial statements have been prepared in good faith by
the Borrower based on assumptions believed by the Borrower to be reasonable, and
reflect on a pro forma basis the estimated consolidated financial position and
results of operations of the Borrower as of December 31, 1997, and March 31,
1997 assuming that the Transactions had actually occurred at April 1, 1997.
4.2 No Change. Since March 31, 1997 there has been no development,
---------
event or circumstance which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence. The Borrower and each of its Subsidiaries
-------------------
(a) is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization (i) as of the Closing Date and (ii) with
respect to the Borrower and its Restricted Subsidiaries, on the Effective Date
and on each Borrowing Date, (b) has the corporate power and authority, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the
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business in which it is currently engaged except, with respect to Unrestricted
Subsidiaries, where the failure to have such power, authority and legal right
could not reasonably be expected to have a Material Adverse Effect and (c) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except to the extent that
the failure to so qualify could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations; No
-----------------------------------------------------------
Conflict. The Borrower and each of its Restricted Subsidiaries has the
- --------
corporate power and authority, and the legal right, to make, deliver and perform
the Credit Documents to which it is a party and, in the case of the Borrower, to
borrow hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of such Credit Documents and the Transaction
Documents. After giving effect to the Acquisition, no consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents and Transaction Documents to which the
Borrower and each other Credit Party is a party (including, without limitation,
the collateral assignment of the Coal Supply Agreements listed on Schedule 4.24
to the Administrative Agent for the benefit of the Agents and the Lenders and
the mortgaging of all real property intended by the Credit Agreement to be
mortgaged to the Administrative Agent for the benefit of the Agents and the
Lenders), except those set forth on Schedule 4.4. This Agreement and each other
Credit Document and Transaction Document have been duly executed and delivered
on behalf of the Borrower and each other Credit Party. This Agreement and each
other Credit Document and Transaction Document to which it is a party constitute
legal, valid and binding obligations of each Credit Party party thereto
enforceable against each such Credit Party, as the case may be, in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
4.5 No Legal Bar. Except as set forth on Schedule 4.5 or as could
------------
not reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect, the execution, delivery and performance of each Credit Document
by the Borrower and each Restricted Subsidiary party thereto, the borrowing and
use of the proceeds of the Loans and the consummation of the transactions
contemplated by the Credit Documents and the Transaction Documents: (a) will not
violate any Requirement of Law or any Contractual Obligation applicable to or
binding, the Borrower or any Restricted Subsidiary (after giving effect to the
Acquisition) or any of their respective properties or assets and (b) will not
result in the creation or imposition of any Lien on any of its properties or
assets pursuant to any Requirement of Law applicable to it or any of its
Contractual Obligations, except for the Liens arising under the Credit
Documents.
4.6 Litigation; Compliance with Laws; Reserves. (a) Except as set
------------------------------------------
forth in Schedule 4.6, there are not any actions, suits or proceedings at law or
in equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary (after giving effect to the Acquisition) or any business, property or
rights of any such person (i) that expressly involve any Credit Document or the
Transactions or (ii) as to which there is a reasonable possibility of any
adverse determination and that,
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in either case could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect.
(b) To the extent required by GAAP, the Borrower and its Subsidiaries
(after giving effect to the Acquisition) maintain adequate reserves for (i)
future costs associated with any lung disease claim alleging pneumoconiosis or
silicosis or arising out of exposure or alleged exposure to coal dust or the
coal mining environment, (ii) future costs associated with retiree and health
care benefits, (iii) future costs associated with reclamation of disturbed
acreage, removal of facilities and other closing costs in connection with its
mining operations and (iv) future costs associated with other potential
environmental liabilities.
(c) None of the Borrower or any of its Subsidiaries (after giving
effect to the Acquisition) or any of its respective material properties or
assets is in violation of, nor will the continued operation of its material
properties and assets as currently conducted violate, any law, rule or
regulation (including any zoning, building, Mining and Environmental Law,
ordinance, code or approval or any building or mining permits), or is in default
with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries
----------
(after giving effect to the Acquisition) is in default under or with respect to
any of its Contractual Obligations in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
4.8 Ownership and Location of Property; Liens. (a) Schedule 4.8(a)
-----------------------------------------
lists completely and correctly as of the Closing Date all material real property
(including surface rights and coal and other mineral rights) owned by the
Borrower and the other Credit Parties (after giving effect to the Acquisition)
and Schedule 6.10 sets forth the addresses (or reasonably specific locations) of
such properties for which a Mortgage or fixture filing is required hereunder.
As of the Closing Date, (i) with respect to each parcel of real property listed
on Schedule 4.8(a) for which a Mortgage is required hereunder, the Borrower or
its applicable Restricted Subsidiary (after giving effect to the Acquisition)
has good record title in fee simple to such parcel, except for defects in title
to such parcel which do not or will not have a material adverse effect on the
(A) marketability, (B) title insurability, or (C) operation and intended use, of
such parcel; and (ii) with respect to all other real property listed on Schedule
4.8(a), the Borrower and its applicable Restricted Subsidiaries (after giving
effect to the Acquisition) have good record title in fee simple, except, with
respect to this clause (ii), for defects in title which could not reasonably be
expected to result in a Material Adverse Effect.
(b) Schedule 4.8(b) lists completely and correctly as of the Closing Date
(A) all material real property (including surface rights and coal and other
mineral rights) leased by the Borrower and the other Credit Parties (after
giving effect to the Acquisition) and (B) the lessors thereof and the addresses
(or reasonably specific locations) of such properties for which a Mortgage or
fixture filing is required hereunder. As of the Closing Date, (i)(A) with
respect to each parcel of real property listed on Schedule 4.8(b) for which a
Mortgage is required hereunder, the Borrower or its applicable Restricted
Subsidiary (after giving effect to the Acquisition) has a valid and enforceable
leasehold interest, except where such lack of validity or enforceability does
not or will not have a material adverse effect on the (x) title insurability or
(y) operation and intended use, of such parcel, and (B) with respect to all
other real property listed on Schedule 4.8(b), the Borrower and its applicable
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Restricted Subsidiaries (after giving effect to the Acquisition) have valid and
enforceable leasehold interests, except, with respect to this clause (B), where
such lack of validity or enforceability could not reasonably be expected to have
a Material Adverse Effect; (ii)(A) with respect to each parcel of real property
listed on Schedule 4.8(b) for which a Mortgage is required hereunder, the
Borrower or its applicable Restricted Subsidiary (after giving effect to the
Acquisition) possesses the leasehold interest(s) necessary for the operation of
the applicable Mine(s) currently being operated on such parcel, and each of its
rights under the applicable lease(s), contracts, rights-of-way and easements
necessary for the operation of such Mine(s) is in full force and effect, except
to the extent that failure to maintain such lease(s), contracts, rights of way
and easements in full force and effect does not and will not have a material
adverse effect on the operation and intended use of such parcel by the Borrower
or such Restricted Subsidiary, and (B) with respect to all other real property
listed on Schedule 4.8(b), the Borrower and its Restricted Subsidiaries (after
giving effect to the Acquisition) possess all leasehold interests necessary for
the operation of the Mines currently being operated by each of them, and each of
their respective rights under the leases, contracts, rights-of-way and easements
necessary for the operation of such Mines are in full force and effect, except
to the extent, with respect to this clause (B), that failure to maintain such
leases, contracts, rights of way and easements in full force and effect could
not reasonably be expected to have a Material Adverse Effect; (iii)(A) with
respect to each parcel of real property listed on Schedule 4.8(b) for which a
Mortgage is required hereunder, neither the Borrower nor its applicable
Restricted Subsidiary (after giving effect to the Acquisition) is in default
under any of the applicable instruments or agreements described in clauses
4.8(b)(i) and 4.8(b)(ii) above, except for any defaults which, in the aggregate,
do not or will not have a material adverse effect on the operation and intended
use of such parcel, and (B) with respect to all other real property listed on
Schedule 4.8(b), neither the Borrower nor its Restricted Subsidiaries (after
giving effect to the Acquisition) is in default under any of the applicable
instruments or agreements described in clauses 4.8(b)(i) and 4.8(b)(ii) above,
except, with respect to this clause (B), for any defaults which, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
(iv) each of the Borrower and its Restricted Subsidiaries (after giving effect
to the Acquisition) possesses all licenses, permits (including, but not limited
to, all Mining and Environmental Permits necessary for the operation of the
Mines being operated by each of them in accordance with applicable Mining and
Environmental Laws) or franchises which are necessary to carry out its business
as presently conducted, except where failure to possess such licenses, permits
or franchises could not, in the aggregate, be reasonably expected to have a
Material Adverse Effect, and neither the Borrower nor any Restricted Subsidiary
(after giving effect to the Acquisition) is in violation in any material respect
of any such license, permit or franchise.
4.9 Intellectual Property. Each of the Borrower and its Restricted
---------------------
Subsidiaries (after giving effect to the Acquisition) owns, or is licensed to
use, all trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect (the "Intellectual Property"). To the best of
---------------------
the Borrower's knowledge, and except as set forth on Schedule 4.9, no claim has
been asserted and is pending by any Person challenging or questioning the use of
any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim which could reasonably be expected to have a Material Adverse Effect.
The use of such Intellectual Property by the Borrower and its Restricted
Subsidiaries (after giving effect to the Acquisition) does not infringe on the
rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
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4.10 Taxes. Each of the Borrower and its Subsidiaries, and any other
-----
affiliate with joint and several liability for taxes (after giving effect to the
Acquisition), has filed or caused to be filed all Federal, state, local and
other material tax returns or materials required to have been filed by it and
has paid or caused to be paid all taxes due and payable by it pursuant thereto
and all assessments received by it (other than any taxes or assessments the
amount or validity of which are currently being contested in good faith and for
which adequate reserves are maintained on the books of the Borrower or such
affiliate), except where the failure to do any of the foregoing could not
reasonably be expected to result in a Material Adverse Effect; no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans has
-------------------
been or will be used for "purchasing" or "carrying" any "margin stock" within
---------- -------- ------------
the respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect.
4.12 ERISA; Coal Act; Black Lung Act. Except as (i) set forth on
-------------------------------
Schedule 4.12 or (ii) described pursuant to the notice provisions of 6.7(d)(vi)
the Borrower has no agreements, arrangements or understandings relating to the
transfer of Plans from TEG or the Seller to the Borrower (the "Transfer
--------
Agreements"). Except as could not reasonably be expected, individually or in
- ----------
the aggregate, to have a Material Adverse Effect: no Reportable Event has
occurred with respect to any Single Employer Plan; all contributions required to
be made with respect to a Plan have been timely made; none of the Borrower or
any of its Subsidiaries (after giving effect to the Acquisition) nor any
Commonly Controlled Entity has incurred any material liability to or on account
of a Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the
Code or, to the knowledge of the Borrower, reasonably expects to incur any
liability (including any indirect, contingent or secondary liability) under any
of the foregoing Sections with respect to any Plan; no termination of, or
institution of proceedings to terminate or appoint a trustee to administer, a
Single Employer Plan has occurred; and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code (except that with
respect to any Multiemployer Plan, such representation is deemed made only to
the knowledge of the Borrower). No "accumulated funding deficiency" (within the
------------------------------
meaning of Section 412 of the Code or Section 302 of ERISA), extension of any
amortization period (within the meaning of Section 412 of the Code) or Lien in
favor of the PBGC or a Plan has arisen or has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Single Employer Plan. Neither the Borrower nor any Commonly
Controlled Entity (after giving effect to the Acquisition) currently intends to
undertake a complete or partial withdrawal (as described in ERISA section 4203
and 4205, respectively) from any Multiemployer Plan for which there is any
outstanding liability; if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made, the Borrower anticipates that there would be a withdrawal liability
in an amount which would be reasonably likely to have a Material Adverse Effect.
To the best knowledge of the Borrower, no such Multiemployer Plan is in
Reorganization or Insolvent. The Borrower, its Subsidiaries and its "related
persons" (as defined in the Coal Act) are in compliance in all material respects
with the Coal Act and none of the Borrower, its Subsidiaries or its related
persons has any liability under the Coal Act except with respect to premiums or
other payments required thereunder which have been paid when due and except to
the extent that the liability thereunder could not reasonably be expected to
have a Material Adverse Effect. The
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Borrower and its Subsidiaries are in compliance in all material respects with
the Black Lung Act, and neither the Borrower nor its Subsidiaries has any
liability under the Black Lung Act except with respect to premiums,
contributions or other payments required thereunder which have been paid when
due and except to the extent that the liability thereunder could not reasonably
be expected to have a Material Adverse Effect.
4.13 Investment Company Act; Other Regulations. Neither the Borrower
-----------------------------------------
nor any Restricted Subsidiary (after giving effect to the Acquisition) is (a) an
'investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
None of the Borrower or any of its Restricted Subsidiaries is subject to
regulation under the Federal Power Act or any other Federal or State statute or
regulation (other than Regulation X) which limits its ability to incur
Indebtedness.
4.14 Subsidiaries and Other Investments. (a) Schedule 4.14(a) sets
----------------------------------
forth as of the Closing Date a list of all direct and indirect Subsidiaries of
the Borrower (after giving effect to the Acquisition) and the percentage
ownership interest of the Borrower (and each Subsidiary) therein. The shares of
Capital Stock or other ownership interests so indicated in Schedule 4.14(a) are
owned by the Borrower (or such Subsidiaries), directly or indirectly, and, with
respect to Restricted Subsidiaries only, are fully paid and non-assessable and
free and clear of all Liens, except for Permitted Liens.
(b) Schedule 4.14(b) sets forth as of the Closing Date a list of all
Joint Ventures and other minority investments to which the Borrower or any
Subsidiary (after giving effect to the Acquisition) is a party, including a
listing of each other Person party to such Joint Venture or investment and the
Borrower's or such Subsidiary's percentage interest therein. The shares of
Capital Stock or other ownership interests so indicated in Schedule 4.14(b) are
owned by the Borrower or such Subsidiary, directly or indirectly, and except
with respect to Unrestricted Subsidiaries, are fully paid and non-assessable and
free and clear of all Liens, except for Permitted Liens.
4.15 Purpose of Loans. The proceeds of the Term Loans shall be used
----------------
by the Borrower to finance the Acquisition and related fees and expenses, to
repay up to $50,000,000 of Indebtedness of Peabody Australia and its
Subsidiaries and, if necessary, to provide cash collateral for certain letters
of credit of the Acquired Subsidiaries. The proceeds of the Revolving Credit
Loans shall be used by the Borrower for working capital purposes and other
general corporate purposes in the ordinary course of business of the Borrower
and its Restricted Subsidiaries, including, without limitation, to make
Investments permitted under subsection 7.9.
4.16 Environmental Matters.
---------------------
Except as listed on Schedule 4.16, or as would not, individually or in
the aggregate, be expected to result in a Material Adverse Effect:
(a) The facilities and properties currently or formerly owned,
leased or operated by the Borrower or any of its Subsidiaries (after giving
effect to the Acquisition) (the "Properties") do not contain, and have not
----------
previously contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii)
could reasonably be expected to give rise to liability under, any
applicable Mining and Environmental Law.
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(b) None of the Borrower nor any of its Subsidiaries (after giving
effect to the Acquisition) has received any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Mining and Environmental Laws with
regard to any of the Properties or the business operated by the Borrower or
any of its Subsidiaries (after giving effect to the Acquisition) (the
"Business"), or any prior business for which the Borrower has, or may
---------
reasonably be alleged to have, retained liability under any Mining and
Environmental Law, nor does the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability
under, any applicable Mining and Environmental Law, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could reasonably be expected to give rise to liability under, any
applicable Mining and Environmental Law.
(d) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened under any
Mining and Environmental Law to which the Borrower or any Subsidiary (after
giving effect to the Acquisition) is or, to the knowledge of the Borrower,
will be named as a party or with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other similar administrative or
judicial requirements outstanding under any Mining and Environmental Law
with respect to the Properties or the Business.
(e) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Borrower or any Subsidiary (after giving effect to
the Acquisition) in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a manner
that could reasonably give rise to liability under any applicable Mining
and Environmental Laws.
(f) The Properties and all operations at the Properties are in
compliance in all respects with all applicable Mining and Environmental
Laws, and there is no contamination at, under or about the Properties or
violation of any applicable Mining and Environmental Law with respect to
the Properties or the Business that could interfere with the continued
operation of the Properties or materially impair the fair saleable value
thereof.
(g) The Borrower and its Subsidiaries (after giving effect to the
Acquisition) hold and are in compliance with all Mining and Environmental
Permits necessary for their operations.
(h) No Lien relating to or in connection with any Mining and
Environmental Law has been filed or has been attached to any Property.
(i) The Borrower has delivered, or otherwise made available, to the
Lenders copies of all material written environmental reports, audits and
assessments concerning the Properties and the Business in the custody or
control of the Borrower, including any prior business for which the
Borrower has, or may reasonably be alleged to have, retained liability
under any Mining and Environmental Law.
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4.17 Collateral Documents. (a) The Guarantee and Collateral
--------------------
Agreement is effective to create in favor of the Administrative Agent, for the
ratable benefit of the Agents and the Lenders, a legal, valid and enforceable
security interest in the pledged stock and other equity ownership interests
described therein and, when stock certificates representing or constituting the
pledged stock and other equity ownership interests described therein are
delivered to the Administrative Agent, such security interest shall, subject to
the existence of Permitted Liens, constitute a perfected first lien on, and
security interest in, all right, title and interest of the pledgor party thereto
in the pledged stock or other equity ownership interests described therein.
(b) The Guarantee and Collateral Agreement is effective to create in
favor of the Administrative Agent, for the ratable benefit of the Agents and the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein. Uniform Commercial Code financing statements have been filed
in each of the jurisdictions listed on Part I of Schedule 4.17 (which lists
fixture filings as well), or arrangements have been made for such filing in such
jurisdictions, and upon such filings, and upon the taking of possession by the
Administrative Agent of any such Collateral the security interests in which may
be perfected only by possession, such security interests will, subject to the
existence of Liens as permitted by the definition of Permitted Liens, constitute
perfected first priority Liens on, and security interests in, all right, title
and interest of the debtor party thereto in the collateral described therein.
(c) Any and all consents or approvals (whether pursuant to
Requirements of Law or any contract or other agreement or instrument) which are
required, necessary or prudent to perfect a security interest in each of the
Mortgages required hereunder, have been obtained or will be obtained within the
applicable periods set forth in subsection 6.10(c). Upon (a) execution and
delivery of such Mortgages, (b) the recording of each Mortgage in the applicable
jurisdiction listed on Part II of Schedule 4.17, and (c) the payment of any
required mortgage-recording taxes or fees, each of the Mortgages will be
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Agents and Lenders, a legal, valid and enforceable lien on the
real property or leasehold interest described therein and such liens will, at
the time of recordation of such Mortgages in such jurisdictions, constitute
first priority liens on the real property or leasehold interest described
therein, subject only to the existence of Liens as permitted by subsection
7.3(a), (e), (f), (g) and (j).
4.18 Accuracy and Completeness of Information. No fact is known to
----------------------------------------
the Borrower or any of its Subsidiaries which has had or could reasonably be
expected to have a Material Adverse Effect, which has not been disclosed to the
Lenders by the Borrower or its Subsidiaries in writing prior to the date hereof.
No document furnished or statement made in writing to the Lenders by the
Borrower, any Subsidiary or, to the best of its knowledge, any party to any of
the Transaction Documents in connection with the negotiation, preparation or
execution of this Agreement or any of the other Credit Documents, taken as a
whole, contains any untrue statement of a material fact or omits to state any
such material fact necessary in order to make the statements contained therein
not misleading in the context in which such statements are made. The Equity
Documents constitute all of the material agreements relating to the Equity
Investment, the Senior Notes Documents constitute all of the material agreements
relating to the Senior Notes and the Subordinated Notes Documents constitute all
of the material agreements relating to the Subordinated Notes.
4.19 Solvency. As of the Closing Date and after giving effect to the
--------
Acquisition and the other transactions contemplated by the Transaction Documents
including borrowings under the Original Credit Agreement on the Closing Date
(or, if earlier, the Escrow Date) and the incurrence of
54
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all other Indebtedness and Guarantee Obligations being incurred on such date,
the Borrower was "Solvent," in that (a) the property, at a fair valuation, of
-------
the Borrower and its Subsidiaries, taken together as a single entity, exceeded
their debts, (b) the present fair salable value of the assets of the Borrower
and its Subsidiaries, taken together as a single entity, was greater than the
amount that will be required to pay their probable debts as such debts become
absolute and matured, and (c) the Borrower did not intend to, and did not
believe that the Borrower and its Subsidiaries, taken together as a single
entity, would, incur debts or liabilities beyond the their ability to pay as
such debts and liabilities mature. For purposes of this subsection, "debt"
----
means "liability on a claim" and "claim" means any (i) right to payment, whether
-------------------- -----
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, or unsecured.
4.20 Labor Matters. There are no strikes, stoppages, slowdowns or
-------------
other labor disputes or controversies pending or, to the Borrower's knowledge,
overtly threatened against the Borrower or any of its Subsidiaries (after giving
effect to the Acquisition) which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. The hours worked and
payments made to employees of the Borrower and each of its Subsidiaries (and
their predecessors) have not been in violation of the Fair Labor Standards Act
or any other applicable Requirement of Law, except to the extent such violations
could not, or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
4.21 Transaction Documents. To the best of the Borrower's knowledge,
---------------------
the representations and warranties contained in the Transaction Documents, taken
as a whole, are true and correct in all material respects as of the Closing Date
(and, if earlier, the Escrow Date). On the Closing Date, the Acquisition was
consummated in accordance with the Transaction Documents.
4.22 Insurance. Schedule 4.22 sets forth a true, complete and
---------
correct description of all material insurance maintained by the Borrower or by
the Borrower for its Subsidiaries as of the Closing Date and after giving effect
to the Acquisition. As of such date, such insurance is in full force and effect
and all premiums have been duly paid (unless such premium is being contested in
good faith; provided that the policy to which such premium relates is not
canceled or in imminent danger of cancellation as a result of such contest). The
Borrower and its Restricted Subsidiaries (after giving effect to the
Acquisition) and the Citizens Entities (as of the Closing Date only) have
insurance in such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.
4.23 Receipt of Proceeds. On the Closing Date, the Borrower received
-------------------
(i) at least $400,000,000 in gross proceeds from the issuance of the Senior
Notes on the terms and conditions set forth in the Senior Notes Documents, (ii)
at least $500,000,000 in gross proceeds from the issuance of the Senior
Subordinated Notes on the terms and conditions set forth in the Subordinated
Notes Documents and (iii) the Equity Investment on the terms and conditions set
forth in the Equity Documents.
4.24 Coal Supply Agreements. Schedule 4.24 sets forth a complete and
----------------------
accurate list of all Coal Supply Agreements to which the Borrower or any other
Credit Party (after giving effect to the Acquisition) is a party as of the
Closing Date, including the counterparty to each such agreement,
55
<PAGE>
which, by their terms, do not prohibit a collateral assignment thereof to the
Administrative Agent for the ratable benefit of the Agents and the Lenders or
would not, upon such assignment or attempted assignment require notice to any
other party thereto. As of the Closing Date, each such Coal Supply Agreement is
in full force and effect, except to the extent that the failure to be in full
force and effect could not reasonably be expected to have a Material Adverse
Effect.
4.25 Mines. Schedule 4.25 sets forth a complete and accurate list of
-----
all Mines (including addresses and the owner and operator thereof) owned or
operated by the Borrower or any of its Restricted Subsidiaries (after giving
effect to the Acquisition) as of the Closing Date.
4.26 Titled Equipment. The value of all vehicles, rolling stock and
----------------
other Operating Equipment owned by the Borrower or any of its Restricted
Subsidiaries (after giving effect to the Acquisition) as of the Closing Date and
covered by certificates of title is not, in the aggregate, material to the
Borrower and its Subsidiaries taken as a whole.
4.27 Acts of God. Neither the Business nor the Properties has been
-----------
affected by any fire, explosion, accident, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance), which could reasonably be expected to have a Material
Adverse Effect.
4.28 Surety Bonds. All surety, reclamation and similar bonds
------------
required to be maintained by the Borrower or any of its Restricted Subsidiaries
(after giving effect to the Acquisition) under any Requirement of Law or
Contractual Obligation are in full force and effect and were not and will not be
terminated, suspended, revoked or otherwise adversely affected by virtue of the
consummation of the Transaction and the financing hereunder and under the other
Transaction Documents; provided that (i) self-bonding permitted under
Requirements of Law prior to the Closing Date may be required to be replaced
following the Closing Date with surety bonds, (ii) the cost of such bonds may be
increased and (iii) certain of such bonds may be terminated, suspended or
revoked, provided that, taken together, the events specified in clauses (i),
(ii) and (iii) above will not have a Material Adverse Effect. All required
guarantees of, and letters of credit with respect to, such surety, reclamation
and similar bonds are in full force and effect except where such failure to be
in full force and effect could not reasonably be expected to have a Material
Adverse Effect.
4.29 Coal Sales. The Borrower and each of the other Credit Parties
----------
(taken as a whole) sell not less than 80% of their inventory "F.O.B. mine" from
which such inventory was severed, other than those sales of inventory designated
for export. Not less than 66 2/3% of the Borrower's and the other Credit
Parties' (taken as a whole) foreign sales of inventory are exported from the
shipping terminal owned by Dominion Terminal Associates in Newport News,
Virginia or the shipping terminal in Lambert's Point, Virginia. The Borrower
and the other Credit Parties (taken as a whole) will not materially modify,
change or alter the manner and method of their coal sales described in this
subsection 4.29 without (i) providing to the Administrative Agent prompt written
notice thereof and (ii) performing within thirty (30) days after any such
modification, change or alteration, any and all acts (including, without
limitation, the execution of any and all documents (including, without
limitation, financing statements and continuation statements for filing under
the provisions of the Uniform Commercial Code or any other Requirement of Law))
which are reasonably necessary in the opinion of the Administrative Agent to
maintain in favor of the Administrative Agent, for the benefit of the Agents and
the Lenders, its first priority security interest in such Collateral.
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SECTION 5. CONDITIONS PRECEDENT
5.1 Effective Date. The effectiveness of this amendment and
--------------
restatement of the Original Credit Agreement shall be subject to the
satisfaction of each of the following conditions precedent:
(a) The Administrative Agent shall have received (i) a copy of the
certificate of incorporation, including all amendments thereto, of the
Borrower, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of the
Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower dated
the Effective Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Borrower as in effect on the Effective
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Borrower authorizing the execution, delivery and performance of the Credit
Documents to which the Borrower is a party, the borrowing hereunder, and
that such resolutions have not been modified or rescinded and that the
certificate of incorporation of the Borrower have not been amended since
the date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above, and (C) as to the
incumbency and specimen signature of each officer executing any Credit
Document or any other document delivered in connection herewith on behalf
of the Borrower; (iii) a certificate of a Responsible Officer (other than
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above) as to the incumbency and specimen signature of such
Secretary or Assistant Secretary.
(b) The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each Credit Party (other than the
Borrower) authorizing (i) the execution, delivery and performance of the
Credit Documents to which it is a party and (ii) the granting by it of the
Liens created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of such Credit Party
as of the Closing Date, which certificate shall be in form and substance
reasonably satisfactory to the Administrative Agent and shall state that
the resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(c) The Administrative Agent shall have received a certificate of
each Credit Party (other than the Borrower), dated the Closing Date, as to
the incumbency and signature of the officers of such Credit Party executing
any Credit Document, reasonably satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and
the Secretary or any Assistant Secretary of such Credit Party.
(d) The Administrative Agent shall have received true and complete
copies of the certificate of incorporation and by-laws of each Credit Party
(other than the Borrower), certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary of such
Credit Party.
(e) The Administrative Agent shall have received from the Borrower,
the other Credit Parties, the Lenders and the Agents duly-executed
signature pages to each Credit Document to which each such Person is a
party (including, without limitation, this Agreement, the
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Confirmation Agreement, the Notes, the Trademark Security Agreement and the
Patent Security Agreements) and each such Credit Document shall be in full
force and effect.
(f) The Administrative Agent shall have received the following
executed legal opinions:
(i) the executed legal opinion of Simpson Thacher &
Bartlett, counsel to the Borrower and special New York counsel to the
other Credit Parties, substantially in the form of Exhibit C-1;
(ii) the executed legal opinion of Jeffery Klinger, Esq.,
special Missouri counsel to the Borrower and in-house counsel to the
other Credit Parties, substantially in the form of Exhibit C-2; and
(iii) the executed legal opinions of local counsel to the
Borrower and the other Credit Parties in the states of Wyoming,
Arizona and West Virginia regarding perfection of security interests
in Collateral located in such jurisdictions.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Agents may reasonably
require.
(g) The Administrative Agent shall have received duly-executed UCC
financing statement amendments and assignments with respect to all UCC-1
financing statements and fixture filings originally executed and delivered
on the Closing Date by the Credit Parties under the Original Credit
Agreement, in each case reflecting the assignment of such financing
statements to the Administrative Agent by the Original Administrative Agent
and reflecting the amendment and restatement of the Original Credit
Agreement by this Agreement, as well as any other instruments and documents
in form and substance reasonably satisfactory to the Administrative Agent
necessary or, in the opinion of the Administrative Agent, desirable to
continue the perfection of the Administrative Agent's (as assignee of the
Original Administrative Agent) security interest in any Collateral granted
by the Borrower on the Closing Date pursuant to the Security Documents.
(h) The Administrative Agent shall have received evidence reasonably
satisfactory to it that the Agents and the Lenders have been named as
additional insureds on all liability insurance policies of the Borrower and
its Restricted Subsidiaries and that the Administrative Agent has been
named as loss payee on all property and casualty insurance policies of the
Borrower and its Restricted Subsidiaries.
(i) Each assignment of a Loan and/or a Commitment by the Original
Lender to a Lender contemplated to occur on or prior to the Effective Date
shall have been consummated.
(j) The Original Administrative Agent shall have received payment in
full for all fees and expenses incurred by it through the Effective Date in
its capacity as Administrative Agent under the Original Credit Agreement
(including, without limitation, the fees and expenses of its legal
counsel), to the extent the Borrower has received a written statement
therefor.
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(k) The Administrative Agent and the Syndication Agent shall have
received a certificate, signed by a Responsible Officer of the Borrower,
dated the Effective Date and confirming that the representations and
warranties set forth herein and in the other Credit Documents are true and
correct in all material respects as of such date, except to the extent such
representations and warranties expressly relate solely to an earlier date.
(l) On the Effective date, no Default or Event of Default shall have
occurred and be continuing.
(m) On the Effective Date, no event shall have occurred that could
reasonably be expected to have a Material Adverse Effect.
(n) The Administrative Agent shall have received from the Original
Administrative Agent all documents delivered to the Original Administrative
Agent pursuant to subsections 5.1(a) and 6.22 of the Original Credit
Agreement.
5.2 [RESERVED]
5.3 Conditions to a Credit Event. The obligation of any Lender or
----------------------------
of the Issuing Lender on the occasion of any Credit Event is subject to the
satisfaction of the following conditions:
(a) The Administrative Agent shall have received a Notice of
Borrowing at least three (3) Business Days in advance of the date of such
Credit Event (subject to any shorter notice periods provided for in
subsection 2.2) or, in the case of the issuance of a Letter of Credit, the
Issuing Lender, the Administrative Agent shall have received an Application
requesting the issuance of such Letter of Credit at least three (3)
Business Days in advance of the date of such Credit Event.
(b) The Administrative Agent and the Syndication Agent shall have
received a certificate, signed by a Responsible Officer of the Borrower,
dated the date of such Credit Event and confirming that the representations
and warranties set forth herein and in the other Credit Documents are true
and correct in all material respects as of such date, except to the extent
such representations and warranties expressly relate solely to an earlier
date.
(c) At the time of and immediately after such Credit Event, no
Default or Event of shall have occurred and be continuing.
(d) No event shall have occurred that could reasonably be expected
to have a Material Adverse Effect.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or any Agent hereunder or under any
other Credit Document, the Borrower shall, and shall cause each of its
Subsidiaries (or, where specified, Restricted Subsidiaries) to:
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6.1 Financial Statements. Furnish to the Administrative Agent with
--------------------
copies for each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of (i) the Borrower and its consolidated Subsidiaries and (ii) the
Borrower and its Consolidated Subsidiaries, in each case as at the end of
such year and the related consolidated and Consolidated statements of
income and retained earnings and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year and, in
the case of statements delivered under clause (i), reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by independent certified public
accountants of nationally recognized standing and, in the case of
statements delivered under clause (ii), certified by a Responsible Officer;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, (i) the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries and (ii) the Consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, in each
case as at the end of such quarter and the related unaudited consolidated
and Consolidated statements of income and retained earnings and of cash
flows of the Borrower and its applicable Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all
material respects and shall be prepared in reasonable detail and in accordance
with GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the case
may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative
-------------------------------
Agent with copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a)(i), a certificate of the independent
certified public accountants reporting on such financial statements stating
that, in performing their audit, nothing came to their attention that
caused them to believe that the Borrower failed to comply with the
provisions of subsection 7.1, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a)(ii) and (b), a certificate of a
Responsible Officer stating that, to the best of such Officer's knowledge,
during such period (i) no Restricted Subsidiary has been formed or acquired
(or, if any such Subsidiary has been formed or acquired, the Borrower has
complied with the requirements of subsection 6.10 with respect thereto),
(ii) neither of the Borrower nor any of its Restricted Subsidiaries has
changed its name, its principal place of business, its chief executive
office or the location of any material item of tangible Collateral without
complying with the requirements of this Agreement and the Security
Documents with respect thereto and
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(ii) such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(c) concurrently with the delivery of financial statements pursuant
to subsection 6.1(a)(ii) or (b), a certificate of the chief financial
officer of the Borrower setting forth, in reasonable detail, the
computations, as applicable, of (i) Debt Ratio, (ii) Excess Cash Flow and
(iii) the financial covenants set forth in subsection 7.1, as of such last
day or for the fiscal period then ended, as the case may be;
(d) not later than 60 days after the end of each fiscal year of the
Borrower, a copy of summary projections by the Borrower of the operating
budget and cash flow budget of the Borrower and its Subsidiaries for the
succeeding fiscal year, such projections to be accompanied by a certificate
of a Responsible Officer to the effect that such projections have been
prepared based on assumptions believed by the Borrower to be reasonable;
(e) within five days after the same are sent, copies of all financial
statements and reports which the Borrower or any of its Restricted
Subsidiaries sends to its stockholders, and within five days after the same
are filed, copies of all financial statements and other reports which the
Borrower or any of its Subsidiaries may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. With respect to the Borrower and each of
----------------------
its Restricted Subsidiaries, pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, or otherwise in accordance with
customary industry practice, as the case may be, all its material obligations of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Borrower
or such Restricted Subsidiary, as the case may be.
6.4 Existence; Businesses and Properties. (a) Do or cause to be done
------------------------------------
all things necessary to preserve, renew and keep in full force and effect the
legal existence of the Borrower and each Restricted Subsidiary, except as
otherwise expressly permitted under subsections 7.5 and 7.6.
(b) With respect to the Borrower and its Restricted Subsidiaries,
maintain, preserve, protect, and keep all Collateral and all other property used
or useful and necessary in the conduct of its business in good condition
(ordinary wear and tear and damage by fire or other casualty or taking by
condemnation excepted and in compliance with all applicable material
Requirements of Law.
(c) Keep in full force and effect all of its material leases and
other material contract rights, and all material rights of way, easements and
privileges necessary or appropriate for the proper operation of the Mines being
operated by the Borrower or a Restricted Subsidiary.
(d) Obtain and comply with each permit, license, authorization and
other governmental approval necessary to recover Coal from any Mine being
operated by the Borrower or a
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Restricted Subsidiary and observe the requirements thereof in all material
respects, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(e) Cause each Mine being operated by the Borrower or a Restricted
Subsidiary to be operated, maintained, developed and mined and cause the
associated processing plants and other fixed and operating assets to be operated
and maintained, in a workmanlike manner, as would a prudent coal mine operator,
and in accordance with generally accepted mining practices and all applicable
Requirements of Law, including but not limited to applicable Mining and
Environmental Laws, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(f) Cause the Operating Equipment, the processing plants associated
with the Mines being operated by the Borrower or a Restricted Subsidiary and
other fixed and operating assets to be kept in effective operating condition,
and all repairs, renewals, replacements, addition and improvements thereof or
thereto needful to the production, processing and transportation of Coal from
any such Mine or associated properties to be promptly made, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(g) Pay or cause to be paid when due all expenses incurred in
connection with the maintenance, development, operation and protection of
processing plants associated with the Mines being operated by the Borrower or a
Restricted Subsidiary and other fixed and operating assets, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.5 Insurance. (a) Maintain with financially sound and reputable
---------
insurance companies insurance (including, without limitation, all required
surety, reclamation and similar bonds) on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, cargo loss and business interruption) as are usually insured against
in the same general area by companies engaged in the same or a similar business;
and furnish to the Administrative Agent with copies for each Lender, upon
written request, full information as to the insurance carried except to the
extent that the failure to do any of the foregoing with respect to any such
property could not reasonably be expected to result in a Material Adverse
Effect, or, in the case of the Borrower and any Restricted Subsidiary,
materially adversely affect the value or usefulness of such property; provided
that in any event the Borrower will maintain, and will cause each of its
Restricted Subsidiaries to maintain, to the extent obtainable on commercially
reasonable terms, (i) property and casualty insurance on all real and personal
property on an all risks basis (including the perils of flood and quake),
covering the repair or replacement cost of all such property and consequential
loss coverage for business interruption and extra expense (which shall be
limited to fixed construction expenses and such other business interruption
expenses as are otherwise generally available to similar businesses), and (ii)
public liability insurance. All such insurance with respect to the Borrower and
its Restricted Subsidiaries shall be provided by insurers or reinsurers which
(x) in the case of United States insurers and reinsurers, have an A.M. Best
policyholders rating of not less than A- with respect to primary insurance and
B+ with respect to excess insurance and (y) in the case of non-United States
insurers or reinsurers, the providers of at least 80% of such insurance have
either an ISI policyholders rating of not less than A, an A.M. Best
policyholders rating of not less than A- or a surplus of not less than
$500,000,000 with respect to primary insurance, and an ISI policyholders rating
of not less than BBB with respect to excess insurance, or, if the relevant
insurance is not available from such insurers, such other insurers as the
Administrative Agent may approve in writing. All insurance shall provide that
no cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by the
Administrative Agent of written notice thereof.
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(b) The Borrower and its Restricted Subsidiaries will deliver to the
Administrative Agent on behalf of the Lenders, (i) on the Closing Date (or, if
earlier, the Escrow Date), a certificate dated such date showing the amount of
insurance coverage as of such date, (ii) upon request of any Lender through the
Administrative Agent from time to time full information as to the insurance
carried, (iii) promptly following receipt of notice from any insurer, a copy of
any notice of cancellation or material change in coverage from that existing on
the Closing Date, (iv) forthwith, notice of any cancellation or nonrenewal of
coverage by the Borrower or any Subsidiary, and (v) promptly after such
information is available to the Borrower, full information as to any claim for
an amount in excess of $2,500,000 with respect to any property and casualty
insurance policy maintained by the Borrower or any Restricted Subsidiary. The
Agents and the Lenders shall be named as additional insureds on all such
liability insurance policies of the Borrower and its Restricted Subsidiaries and
the Administrative Agent shall be named as loss payee on all property and
casualty insurance policies of the Borrower and its Restricted Subsidiaries.
Any proceeds from any such insurance policy in respect of any claim, or any
condemnation award or other compensation in respect of a condemnation (or any
transfer or disposition of property in lieu of condemnation) for which the
Borrower or any of its Restricted Subsidiaries receives a condemnation award or
other compensation shall be paid to the Borrower or the Restricted Subsidiary;
provided that any such proceeds paid to the Borrower or any Restricted
Subsidiary with respect to, and to the extent of, a loss attributable to any
Unrestricted Subsidiary or its property shall be paid to such Unrestricted
Subsidiary; provided further that: (A) the Borrower or the Restricted Subsidiary
will use such proceeds, condemnation award or other compensation to repair,
restore or replace the assets which were the subject of such claim within 12
months after receipt thereof (and a Responsible Officer shall deliver a
certificate specifying in reasonable detail such usage not later than the last
day of such relevant period), and (B) if, at the time of the receipt of such
proceeds, condemnation award or other compensation, an Event of Default has
occurred and is continuing, the aggregate amount of all such proceeds,
condemnation award or other compensation shall be paid to the Administrative
Agent and held as Collateral for application in accordance with the Security
Documents; and provided further that, to the extent that any amount of such
proceeds, condemnation award or other compensation are not used or committed
during the time period specified in proviso (A) above, then, if requested by
notice from the Required Lenders to the Borrower, all such remaining uncommitted
proceeds, condemnation award or other compensation shall be paid to the
Administrative Agent and held as Collateral for application in accordance with
the Security Documents.
6.6 Inspection of Properties; Books and Records; Discussions. Keep
--------------------------------------------------------
proper books of record and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine any of its books, records, agreements, contracts and the like (except to
the extent (i) any such access is restricted by a Requirement of Law or (ii) any
such agreements, contracts or the like are subject to a written confidentiality
agreement with a non-Affiliate that prohibits the Borrower or any of its
Subsidiaries from granting such access to the Lenders; provided that, with
respect to such confidentiality restrictions affecting the Borrower or any of
its Restricted Subsidiaries, a Responsible Officer is made available to such
Lender to discuss such confidential information to the extent permitted) at any
reasonable time and upon reasonable notice on a Business Day and as often as may
reasonably be desired by any Lender and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants; provided that the
Administrative Agent or such Lender shall notify the Borrower prior to any
contact with such
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accountants and give the Borrower the opportunity to participate in such
discussions; provided, further, that the Borrower shall notify the
Administrative Agent of any such visits, inspections or discussions prior to
each occurrence thereof.
6.7 Notices. Promptly give notice to the Administrative Agent and
-------
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any material
Contractual Obligation of the Borrower or any of its Restricted
Subsidiaries, (ii) litigation, investigation or proceeding which may exist
at any time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in either case, could reasonably be expected
to have a Material Adverse Effect or (iii) any material asset sale by the
Borrower or a Restricted Subsidiary (describing in reasonable detail the
assets sold, the consideration received therefor and the proposed use of
the proceeds thereof);
(c) any other litigation or proceeding affecting the Borrower or any
of its Restricted Subsidiaries in which the amount involved is $10,000,000
or more and not covered by insurance; and
(d) the following events that, individually or in the aggregate,
would be reasonably likely to have a Material Adverse Effect, as soon as
possible and in any event within 20 days after the Borrower knows or has
reason to know thereof: (i) the incurrence or expected incurrence of an
accumulated funding deficiency or the filing or expected filing of an
application to the Secretary of the Treasury for a waiver or modification
of the minimum funding standard (including any required installment
payments) or an extension or expected extension of any amortization period
under Section 412 of the Code with respect to a Plan, the creation of any
Lien or the expected creation of any Lien in favor of the PBGC or a Plan,
and the reassumption or expected reassumption by the Seller of sponsorship
of any Single Employer Plan, (ii) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan (other than a Multiple
Employer Plan), or any withdrawal from or expected withdrawal from, or the
termination, Reorganization or Insolvency, or expected termination,
Reorganization or Insolvency of, any Multiemployer Plan, or a failure or
reasonably expected failure to make any required contribution to a Plan,
(iii) the institution or the expected institution of proceedings by the
PBGC or any Person (including any employer) with respect to the withdrawal
from, or the termination, Reorganization or Insolvency of, any Single
Employer Plan or Multiemployer Plan, (iv) the incurrence or expected
incurrence of any liability pursuant to (A) the Coal Act (other than with
respect to required premiums or other payments which are timely paid), or
(B) the Black Lung Act (other than with respect to required premiums,
contributions or other payments which are timely paid), (v) any adoption
of, assumption of, amendment of, or modification of any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits
to retired employees (other than as required by Section 601 of ERISA or the
Coal Act which on a FAS 106 basis results in the incurrence or expected
incurrence of any increased liability with respect thereto) or (vi) any
Transfer Agreement with the PBGC (which notice shall describe all the
material terms of any such Transfer Agreement).
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Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
6.8 Mining and Environmental Laws. Except as would not reasonably be
-----------------------------
expected to have a Material Adverse Effect: (a)(i) Comply in all respects with
all applicable Mining and Environmental Laws, and obtain, comply in all respects
with, and maintain any and all Mining and Environmental Permits necessary for
its operations as conducted and as planned; and (ii) take all reasonable efforts
to ensure that all of its tenants, subtenants, contractors, subcontractors, and
invitees comply in all respects with all applicable Mining and Environmental
Laws, and obtain, comply in all respects with and maintain any and all Mining
and Environmental Permits, applicable to any of them. Notwithstanding the
foregoing, upon learning of any actual or suspected noncompliance, the Borrower
or one or more of its Subsidiaries, as appropriate, shall promptly undertake all
reasonable efforts to achieve compliance; and
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions in each case required under
applicable Mining and Environmental Laws and promptly comply in all respects
with all lawful orders and directives of all Governmental Authorities regarding
applicable Mining and Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the pendency of
such proceedings could not be reasonably expected to have a Material Adverse
Effect.
6.9 Further Assurances. With respect to the Borrower and its
------------------
Restricted Subsidiaries, upon the reasonable request of the Administrative
Agent, promptly perform or cause to be performed any and all acts and execute or
cause to be executed any and all documents (including, without limitation,
financing statements and continuation statements) for filing under the
provisions of the Uniform Commercial Code or any other Requirement of Law which
are necessary or advisable to maintain in favor of the Administrative Agent, for
the benefit of the Agents and the Lenders, Liens on the Collateral that are duly
perfected in accordance with all applicable Requirements of Law.
6.10 Additional Collateral. (a) With respect to any assets (other
---------------------
than (x) any assets described in subsection 6.10(b), (y) immaterial assets a
Lien on which cannot be perfected by physical delivery to the Administrative
Agent or by filing UCC-1 financing statements, and (z) assets constituting
interests in real property, which are governed by subsection 6.10(c)) acquired
on or after the Closing Date by the Borrower or any of its Restricted
Subsidiaries (including, without limitation, the Capital Stock of newly created
or acquired Restricted Subsidiaries) which are not already subject to the Lien
created by any of the Security Documents, promptly (and in any event within
thirty (30) days after the acquisition thereof): (i) execute and deliver to the
Administrative Agent such amendments to the relevant Security Documents or such
other documents as the Administrative Agent shall deem necessary or advisable to
grant to the Administrative Agent, for the benefit of the Agents and the
Lenders, a Lien on such assets, (ii) take all actions necessary or advisable to
cause such Lien to be duly perfected in accordance with all applicable
Requirements of Law, including, without limitation, the delivery of the
applicable assets to the Administrative Agent or the filing of financing
statements in such jurisdictions as may be requested by the Administrative
Agent, and (iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described in clauses
(i) and (ii) of this subsection 6.10(a), which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
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(b) With respect to any Person that, on or subsequent to the Closing
Date, (x) becomes a direct or indirect Restricted Subsidiary (other than any
Acquired Subsidiary (for which the ten (10) day time periods set forth below do
not apply)), (y) ceases to be a Foreign Subsidiary but retains its Restricted
Subsidiary status, or (z) ceases to be an Unrestricted Subsidiary but retains
its, or otherwise qualifies hereunder for, Subsidiary status, as applicable
(except, in each case, with respect to the execution and delivery of any
Mortgages, the timing of the execution and delivery of which is governed by
subsection 6.10(c)(vi) below): (i) no later than ten (10) days after the date
such Person becomes such a Subsidiary, execute and deliver to the Administrative
Agent, for the benefit of the Agents and the Lenders, such amendments to the
Guarantee and Collateral Agreement as the Administrative Agent shall deem
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Agents and the Lenders, a Lien on the Capital Stock of such Restricted
Subsidiary which is owned by the Borrower or any of its Restricted Subsidiaries,
(ii) no later than ten (10) days after the date such Person becomes such a
Subsidiary, deliver to the Administrative Agent the certificates representing
such Capital Stock, together with undated stock powers executed and delivered in
blank by a duly authorized officer of the Borrower or such Restricted
Subsidiary, as the case may be, (iii) cause such Restricted Subsidiary (A) no
later than ten (10) days after the date such Person becomes such a Subsidiary,
to become a party to the Guarantee and Collateral Agreement, and the
Subordination Agreement, in each case pursuant to documentation which is in form
and substance reasonably satisfactory to the Administrative Agent and (B) no
later than thirty (30) days after the date such Person becomes such a
Subsidiary, to take all actions necessary or advisable to cause each Lien
created by the Guarantee and Collateral Agreement to be duly perfected in
accordance with and pursuant to all applicable Requirements of Law, including,
without limitation, the filing of fixture filings and financing statements in
such jurisdictions as may be requested by the Administrative Agent, and (iv)
within thirty (30) days of the date such Person becomes such a Subsidiary, if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described in clauses (i), (ii) and (iii) of
this subsection 6.10(b), which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding
the foregoing, (1) no Foreign Subsidiary of the Borrower shall be required to
execute the Guarantee and Collateral Agreement, (2) no more than 65% of the
Capital Stock of or equity interests in any direct Foreign Subsidiary of the
Borrower or any of its Subsidiaries (and none of the Capital Stock of or equity
interests in any indirect Foreign Subsidiary), or any other of its Subsidiaries
if more than 65% of the assets of such Subsidiary are securities of foreign
companies (such determination to be made on the basis of fair market value),
shall be required to be pledged hereunder, (3) no Unrestricted Subsidiary shall
be required to become a party to the Guarantee and Collateral Agreement or
deliver any Mortgages with respect to any of its real properties and (4) the
Capital Stock of Unrestricted Subsidiaries pledged to the Administrative Agent
pursuant to the Guarantee and Collateral Agreement shall be released as provided
in subsection 8.16 thereof.
(c) As promptly as practicable, but in any event:
(i) within sixty (60) days following the Closing Date or,
with respect to clause (C) only, within sixty (60) days following the
Administrative Agent's election of a Title Policy or a Title Opinion, the
Borrower, at its sole cost and expense, shall have delivered to the
Administrative Agent (A) a Mortgage with respect to each of the real property
interests described in Part I of Schedule 6.10, executed and delivered by a duly
authorized officer of the mortgagor party thereto, with a counterpart or a
conformed copy for each Lender, (B) a legal opinion in form and substance, and
from counsel licensed to practice in the jurisdiction in which such Mortgage is
to be recorded, reasonably satisfactory to the Administrative Agent, including,
without limitation, an opinion that such
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Mortgage is a legal, valid and binding instrument, enforceable according to its
terms, and (C) either a Title Policy (as defined in subsection 6.10(d)) or a
Title Opinion (as defined in subsection 6.10(d)), to be selected by the
Administrative Agent in its reasonable discretion, the exercise of which shall
take into account industry practices in the area in which such Mortgage is to be
recorded;
(ii) within ninety (90) days following the Closing Date,
or, with respect to clause (C) only, within ninety (90) days following the
Administrative Agent's election of a Title Policy or a Title Opinion, the
Borrower, at its sole cost and expense, shall have delivered to the
Administrative Agent, (A) a Mortgage with respect to each of the real property
interests described in Part II of Schedule 6.10, executed and delivered by a
duly authorized officer of the mortgagor party thereto, with a counterpart or a
conformed copy for each Lender, (B) a legal opinion in form and substance, and
from counsel licensed to practice in the jurisdiction in which such Mortgage is
to be recorded, reasonably satisfactory to the Administrative Agent, including,
without limitation, an opinion that such Mortgage is a legal, valid and binding
instrument, enforceable according to its terms, and (C) either a Title Policy or
a Title Opinion, to be selected by the Administrative Agent in its reasonable
discretion, the exercise of which shall take into account industry practices in
the area in which such Mortgage is to be recorded;
(iii) within one hundred fifty (150) days following the
Closing Date or, with respect to clause (C) only, within one hundred fifty (150)
days following the Administrative Agent's election of a Title Policy or a Title
Opinion, the Borrower, at its sole cost and expense, shall have delivered to the
Administrative Agent, (A) a Mortgage with respect to the each of the real
property interests described in Part III of Schedule 6.10, executed and
delivered by a duly authorized officer of the mortgagor party thereto, with a
counterpart or a conformed copy for each Lender, (B) a legal opinion in form and
substance, and from counsel licensed to practice in the jurisdiction in which
such Mortgage is to be recorded, reasonably satisfactory to the Administrative
Agent, including, without limitation, an opinion that such Mortgage is a legal,
valid and binding instrument, enforceable according to its terms, and (C) either
a Title Policy or a Title Opinion, to be selected by the Administrative Agent in
its reasonable discretion, the exercise of which shall take into account
industry practices in the area in which such Mortgage is to be recorded;
(iv) commencing on the Closing Date and continuing
thereafter for a period of one (1) year (or such longer period as may be
reasonably requested by the Administrative Agent (after taking into account such
factors as the overall value of the Collateral package granted to the Lenders,
the Borrower's financial performance to date and the prospects of obtaining such
Mortgages within a reasonable period of time)), the Borrower at its sole cost
and expense shall use commercially reasonable efforts to deliver to the
Administrative Agent, (A) a Mortgage with respect to each of the real property
interests described in Part IV of Schedule 6.10, executed and delivered by a
duly authorized officer of the mortgagor party thereto, with a counterpart or a
conformed copy for each Lender, (B) a legal opinion in form and substance, and
from counsel licensed to practice in the jurisdiction in which such Mortgage is
to be recorded, reasonably satisfactory to the Administrative Agent, including,
without limitation, an opinion that such Mortgage is a legal, valid and binding
instrument, enforceable according to its terms, and (C) either a Title Policy or
a Title Opinion, to be selected by the Administrative Agent in its reasonable
discretion, the exercise of which shall take into account industry practices in
the area in which such Mortgage is to be recorded;
(v) within thirty (30) days (or, with respect to clause
(C) only, within written thirty (30) days following the Administrative Agent's
election of a Title Policy or Title Opinion) following the acquisition (by
purchase, lease, or other means) of any real property interests by the
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Borrower or any Restricted Subsidiary on or after the Closing Date, the Borrower
or such Restricted Subsidiary, as applicable, at its sole cost and expense,
shall have delivered to the Administrative Agent (A) a Mortgage with respect to
each such real property interest covering each newly acquired parcel or parcels
of real property (provided that such real property interest (x) if comprised of
more than one parcel, consists of contiguous parcels, (y) comprises a "logical
mining unit," or (z) is otherwise mortgageable in the reasonable opinion of the
Administrative Agent) which contain(s) (collectively, if more than one parcel)
at least five (5) million tons of reasonably proven (by industry standards) coal
reserves, executed and delivered by a duly authorized officer of the mortgagor
party thereto, with a counterpart or a conformed copy for each Lender, (B) a
legal opinion in form and substance, and from counsel licensed to practice in
the jurisdiction in which such Mortgage is to be recorded, reasonably
satisfactory to the Administrative Agent, including, without limitation, an
opinion that such Mortgage is a legal, valid and binding instrument, enforceable
according to its terms, and (C) either a Title Policy or a Title Opinion, to be
selected by the Administrative Agent in its reasonable discretion, the exercise
of which shall take into account industry practices in the area in which such
Mortgage is to be recorded, but shall ultimately be subject to the
Administrative Agent's obligation to maximize Lenders' security with respect to
such Mortgage; provided, however, that notwithstanding the foregoing in this
clause 6.10(c)(v), with respect to the securing of any leasehold interest by a
Mortgage, the Borrower or its Restricted Subsidiary, as applicable, shall only
be required to use its commercially reasonable efforts to deliver such Mortgage
for such a period of time as is reasonably required to deliver such Mortgage or
for the Administrative Agent to determine with reasonable certainty that,
notwithstanding such efforts, such Mortgage cannot be delivered;
(vi) within sixty (60) days following the date on which any
Person (other than any Acquired Subsidiary) becomes a Restricted Subsidiary, or
ceases to be a Foreign Subsidiary but retains its Restricted Subsidiary status,
or ceases to be an Unrestricted Subsidiary but retains its, or otherwise
qualifies hereunder for Subsidiary status or, with respect to clause (C) only
within sixty (60) days following the Administrative Agent's election of a Title
Policy or a Title Opinion, the Borrower at its sole cost and expense shall have
delivered or caused to be delivered to the Administrative Agent with respect to
each such Person (A) a Mortgage with respect to each real property interest
owned by such Person covering each parcel or parcels of real property (provided
that such real property interest (x) if comprised of more than one parcel,
consists of contiguous parcels, (y) comprises a "logical mining unit," or (z) is
otherwise mortgageable in the reasonable opinion of the Administrative Agent)
which contain(s) (collectively, if more than one parcel) at least five (5)
million tons of reasonably proven (by industry standards) coal reserves,
executed and delivered by a duly authorized officer of the mortgagor party
thereto, with a counterpart or a conformed copy for each Lender, (B) a legal
opinion in form and substance, and from counsel licensed to practice in the
jurisdiction in which such Mortgage is to be recorded, reasonably satisfactory
to the Administrative Agent, including, without limitation, an opinion that such
Mortgage is a legal, valid and binding instrument, enforceable according to its
terms, and (C) either a Title Policy or a Title Opinion, to be selected by the
Administrative Agent in its reasonable discretion, the exercise of which shall
take into account industry practices in the area in which such Mortgage is to be
recorded; provided, however, that notwithstanding the foregoing in this clause
6.10(c)(vi), with respect to the securing of any leasehold interest by a
Mortgage, the Borrower or its Restricted Subsidiary, as applicable, shall only
be required to use its commercially reasonable efforts to deliver such Mortgage
for such a period of time as is reasonably required to deliver such Mortgage or
for the Administrative Agent to determine with reasonable certainty that,
notwithstanding such efforts, such Mortgage cannot be delivered; and,
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<PAGE>
(vii) at all times after the Borrower and its Restricted
Subsidiaries have recognized, collectively, an asset "impairment loss" (as such
term is contemplated by and pursuant to F.A.S. 121 ("Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of"))
(or more than one such asset impairment loss) totaling in the aggregate Fifty
Million Dollars ($50,000,000.00) or more, no later than thirty (30) days after
each such recognition after recognition in excess of such initial $50,000,000,
the Borrower at its sole cost and expense shall have delivered or caused to be
delivered to the Administrative Agent (i) one or more Mortgages with respect to
real property interests owned by Borrower or any of its Restricted Subsidiaries
which (A) are not already subject to any Mortgage, (B) which have been selected
by the Administrative Agent in its sole and absolute discretion, and (C) have a
total value (as reasonably determined by the Administrative Agent) at least
equal to the dollar value of such "impairment loss" recognition, such Mortgages
in each case to be executed and delivered by a duly authorized officer of the
mortgagor party thereto, with a counterpart or a conformed copy for each Lender,
(ii) a legal opinion in form and substance, and from counsel licensed to
practice in the jurisdiction in which each such Mortgage is to be recorded,
reasonably satisfactory to the Administrative Agent, including, without
limitation, an opinion that such Mortgage is a legal, valid and binding
instrument, enforceable according to its terms, (iii) either a Title Policy or a
Title Opinion, to be selected by the Administrative Agent in its reasonable
discretion, the exercise of which shall take into account industry practices in
the area in which each such Mortgage is to be recorded and (iv) a certificate
executed by an officer of the Borrower or the Restricted Subsidiary, as
applicable, issued to the Administrative Agent, certifying that at the time of
such certification the fair market value of the real property interests which
are being secured pursuant to this clause 6.10(c)(vii) equal or exceed the
amount of the applicable "impairment loss" recognition, and that such
recognition is in all other respects in accordance with GAAP.
(d) As promptly as practicable, but in any event, as applicable and
in either case, (i) within sixty (60) days following the Closing Date with
respect to the real property described in Part I of Schedule 6.10, (ii) within
ninety (90) days following the Closing Date with respect to the real property
described in Part II of Schedule 6.10, (iii) within one hundred fifty (150) days
following the Closing Date with respect to the real property described in Part
III of Schedule 6.10, (iv) with respect to some or all of the real property
described in Part IV of Schedule 6.10, if deliverable in accordance with the
provisions of clause 6.10(c)(iv) above, promptly upon the receipt of the
consents or other approvals required or necessary for the delivery thereof, and
(vi) no later than the required date of delivery of each Mortgage subject and
pursuant to subsections 6.10(c)(v), 6.10(c)(vi), and 6.10(c)(vii), the Borrower
shall have delivered or caused to be delivered to the Administrative Agent, with
respect to each parcel covered by the applicable Mortgage encumbering such real
property, (1) a mortgagee's title policy (or policies) (each such policy
satisfying the requirements of this subsection 6.10(d), a "Title Policy") dated
------------
a date reasonably satisfactory to the Administrative Agent, which such
policy(ies) shall (A) be in an amount reasonably satisfactory to the
Administrative Agent; (B) ensure that the Mortgage insured thereby creates a
valid first Lien on such parcel free and clear of all defects and encumbrances,
except for liens permitted by subsections 7.3(a), (e), (f), (g), and (j) such
other liens and defects as may be approved in writing by the Administrative
Agent; (C) name the Administrative Agent for the benefit of the Agents and the
Lenders as the insured thereunder; (D) be in the form of ALTA Loan Policy -1992;
(E) contain such endorsements and affirmative coverage as the Administrative
Agent may reasonably request and (F) be issued by title companies satisfactory
to the Administrative Agent (including any such title companies acting as co-
insurers or reinsures, at the option of the Administrative Agent), and the
Administrative Agent shall have received evidence reasonably satisfactory to it
that all premiums in respect of each such policy, and all charges for mortgage
recording tax, if any, have been paid, or (2) a legal opinion from local counsel
in the
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<PAGE>
jurisdiction of such Mortgage, in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent, including, without
limitation, an opinion that the mortgagor who is named in such Mortgage holds
legal and valid title to the interests secured thereby, free and clear of all
defects and encumbrances, except for liens permitted by subsections 7.3(a), (e),
(f), (g) and (j), and such other liens and defects approved by and/or acceptable
to the Administrative Agent (a "Title Opinion").
-------------
(e) If requested by the Administrative Agent, for each Title Policy
or Title Opinion issued pursuant to subsection 6.10(d), as promptly as possible,
but in any event within the applicable time periods referred to in subsection
6.10(d), the Borrower shall deliver or cause to be delivered to the
Administrative Agent a copy of all recorded documents referred to, or listed as
exceptions to title in, such Title Policy or Title Opinion, as applicable,
together with a copy, certified by such parties as the Administrative Agent may
reasonably deem appropriate, of any other all other documents affecting the real
property interest covered by such Title Policy or Title Opinion.
(f) As promptly as possible, but in any event within the applicable
time periods referred to in subsection 6.10(d), if required pursuant to
Regulation H of the Board of Governors of the Federal Reserve System
("Regulation H") the Borrower shall deliver to the Administrative Agent (A) a
- --------------
policy of flood insurance which (i) covers the parcel of improved real property
which is encumbered by the applicable Mortgage set forth on Schedule 6.10, (ii)
is written in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage which is reasonably allocable to such
parcel of improved real property or the maximum limit of coverage made available
with respect to the particular type of property under the National Flood
Insurance Act of 1968, whichever is less, and (iii) has a term ending not
earlier than the maturity of the Indebtedness secured by such Mortgage and (B)
confirmation that the Borrower has received the notice required pursuant to
Section 208(e)(3) of Regulation H.
(g) As promptly as possible, but in any event within forty-five (45)
days following the Closing Date, with respect to each parcel of real property
set forth on Part V of Schedule 6.10 (which shall include, without limitation,
all active Mines, preparation plants, loading facilities and other major
facilities owned by the Borrower or any other Credit Party), the Borrower shall
take all actions that the Administrative Agent may reasonably require, including
(if such property is not covered by a recorded Mortgage) the filing of UCC
fixture filing financing statements, to cause the security interest created by
the Security Documents in such fixtures to be perfected and with respect to each
such parcel of real property and, if such real property is leased by the
Borrower or the applicable Restricted Subsidiary or the Borrower or the
appropriate Restricted Subsidiary is otherwise prohibited by contract from
granting such fixture filing, use commercially reasonable efforts to obtain the
consent, if necessary, of the landlord of such property or any other Person to
the filing of UCC fixture filing financing statements and make such filings if
such consent is obtained.
(h) The Borrower hereby represents and warrants that the real
property interests described on Schedule 6.10, Parts I-IV, constitute
substantially all of the real property interests owned or controlled by the
Borrower or any of its Restricted Subsidiaries with respect to (i) the operating
mines (including coal reserves) known or referred to by the Borrower or any of
its Restricted Subsidiaries as the Federal No. 2 Mine, the Lee Ranch Mine, the
Rawhide Mine, the Caballo Mine, the North Antelope/Rochelle Mine Complex and the
Black Mesa/Kayenta Mine Complex, and (ii) the coal reserves known or referred to
by the Borrower or its Restricted Subsidiaries as the Belleville Reserves.
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<PAGE>
6.11 Interest Rate Protection. As promptly as practicable and in any
------------------------
event within 180 days after the Closing Date, enter into, and thereafter
maintain in full force and effect through the second anniversary of the Closing
Date one or more Interest Rate Agreements in form reasonably satisfactory to the
Administrative Agent, the effect of which shall be to set at fixed rates the
interest cost to the Borrower with respect to at least 33% of the aggregate
average outstanding principal amount of the Term Loans and deliver evidence of
the execution and delivery thereof to the Administrative Agent.
6.12 Foreign Jurisdictions. On the Effective Date, (i) be duly
---------------------
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except to the extent that the
failure to so qualify could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect, and (ii) with respect to the Borrower and the
other Credit Parties, and to the extent not already done so under the Original
Credit Agreement, deliver to the Administrative Agent certificates of good
standing issued by the Secretary of State (or other relevant officers) of each
jurisdiction referred to in clause (i) of this subsection 6.12, each dated as of
a recent date. The Borrower and each of its Restricted Subsidiaries agree to
maintain such qualification as a foreign corporation and such good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that the failure to do so qualify could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.13 Maintenance of Collateral; Alterations. Refrain from committing
--------------------------------------
any waste on any Collateral, except in the ordinary course of its business, or
make any material change in the use of any Collateral, provided that any Credit
Party may sell or lease to any other Person all or any portion of any item of
Collateral that the Borrower has determined in good faith is not used or useful
in such Credit Party's operating business.
6.14 Use of Proceeds. Use the proceeds of the Loans only for the
---------------
purposes specified in subsection 4.15.
6.15 [RESERVED]
6.16 Preparation of Environmental Reports. If an Event of Default
------------------------------------
caused by reason of a breach of subsection 4.16 or 6.8 (with respect to
compliance with Mining and Environmental Laws) shall have occurred and be
continuing, at the reasonable request of the Required Lenders through the
Administrative Agent, the Borrower shall provide to the Lenders within 60 days
after such request, at the expense of the Borrower, an environmental site
assessment report for the Properties which are the subject of such default
prepared by an environmental consulting firm reasonably acceptable to the
Administrative Agent and indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance or remedial action in
connection with such Properties.
6.17 Citizens Debt. Ensure (i) that TU causes the Seller or an
-------------
affiliate of the Seller to provide the credit support for certain existing debt
of Citizens contemplated by Section 4 of the Participation Agreement and (ii)
that such debt is and remains non-recourse to the Borrower and its Restricted
Subsidiaries.
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<PAGE>
6.18 Maintenance of Coal Reserves. Maintain at all times available
----------------------------
Coal reserves, or the rights to acquire coal from third parties, sufficient to
fulfill its requirements under existing Coal Supply Agreements.
6.19 Coal Supply Agreements. At all times comply fully with all of
----------------------
the terms and conditions of its Coal Supply Agreements, the nonperformance with
which could reasonably be expected to have a Material Adverse Effect. The
Borrower and each of its Subsidiaries shall further perform any and all actions
necessary to maintain all Coal Supply Agreements material to its business in
full force and effect. To the extent practicable and commercially reasonable
(provided that in no circumstance shall the Borrower or any of its Restricted
Subsidiaries be required to incur any additional costs or impair any existing or
potential business relationship), neither the Borrower nor any of its Restricted
Subsidiaries shall after the Closing Date enter into any Coal Supply Agreements
which do not provide that such Coal Supply Agreements are assignable to the
Lenders without the consent of any other party to such Coal Supply Agreement.
6.20 Exploration and Reserves. All primary and basic exploration
------------------------
data and information pertaining to the Mines will be preserved where reasonable
in accordance with customary industry practice and in a sound and careful manner
for future use and review. All such information together with all other reserve
reports and maps, analysis and, upon reasonable notice, engineering and
operating data and similar information pertaining to the Mines being operated by
any Credit Party shall be available at all reasonable times for inspection and
review by authorized representatives of the Administrative Agent (except to the
extent (i) any such access is restricted by a Requirement of Law or (ii) any
such data, information or the like are subject to a written confidentiality
agreement with a non-Affiliate that prohibits the Borrower or any of its
Subsidiaries from granting such access to the Lenders; provided that, with
respect to the Borrower or any of its Restricted Subsidiaries, a Responsible
Officer is made available to such Lender to discuss such confidential
information to the extent permitted).
6.21 Certain Long Term Liabilities and Environmental Reserves. To
--------------------------------------------------------
the extent required by GAAP, maintain adequate reserves for (i) future costs
associated with any lung disease claim alleging pneumoconiosis or silicosis or
arising out of exposure or alleged exposure to coal dust or the coal mining
environment, (ii) future costs associated with retiree and health care benefits,
(iii) future costs associated with reclamation of disturbed acreage, removal of
facilities and other closing costs in connection with its mining operations and
(iv) future costs associated with other potential environmental liabilities.
6.22 [RESERVED]
6.23 Unrestricted Subsidiaries. No Restricted Subsidiary may be
-------------------------
owned in whole or in part by an Unrestricted Subsidiary.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any portion of the
Commitments remain in effect or any amount is owing to any Lender or any of the
Agents hereunder or under any other Credit Document, the Borrower shall not, and
(except with respect to subsection 7.1), shall not permit
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<PAGE>
any of its Restricted Subsidiaries (and, with respect to Subsections 7.2, 7.3,
7.4 and 7.16, its Unrestricted Subsidiaries) to, directly or indirectly:
7.1 Financial Condition Covenants.
-----------------------------
(a) Debt Ratio. Permit the Debt Ratio at the last day of any fiscal
----------
quarter to be greater than the ratio set forth below opposite such date:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Ratio
--------------------- -----
<S> <C>
9/30/98 6.00
12/31/98 6.00
3/31/99 6.00
6/30/99 6.00
9/30/99 6.00
12/31/99 6.00
3/31/00 5.75
6/30/00 5.75
9/30/00 5.75
12/31/00 5.75
3/31/01 5.60
6/30/01 5.60
9/30/01 5.60
12/31/01 5.60
3/31/02 5.00
6/30/02 5.00
9/30/02 5.00
12/31/02 5.00
3/31/03 4.75
6/30/03 4.75
9/30/03 4.75
12/31/03 4.75
3/31/04 4.25
Thereafter 4.25
</TABLE>
[CONTINUED ON NEXT PAGE]
73
<PAGE>
(b) Interest Coverage. Permit the ratio of (i) Consolidated EBITDA
-----------------
for the four fiscal quarters ending on the last day of the fiscal quarter
set forth below to (ii) Consolidated Cash Interest Expense for the four
fiscal quarters ending on the last day of the fiscal quarter set forth
below to be less than the ratio set forth opposite such date below (such
ratio, the "Interest Coverage Ratio"):
-----------------------
<TABLE>
<CAPTION>
Fiscal Quarter Ending Ratio
--------------------- -----
<S> <C>
9/30/98 1.50
12/31/98 1.50
3/31/99 1.50
6/30/99 1.50
9/30/99 1.50
12/31/99 1.50
3/31/00 1.85
6/30/00 1.85
9/30/00 1.85
12/31/00 1.85
3/31/01 2.00
6/30/01 2.00
9/30/01 2.00
12/31/01 2.00
3/31/02 2.25
Thereafter 2.25
</TABLE>
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
--------------------------
exist any Indebtedness (including in respect of Interest Rate Agreements)
except:
(a) Indebtedness of the Borrower under the Credit Documents, the
Senior Note Documents and the Subordinated Note Documents;
(b) Indebtedness of the Borrower and any Restricted Subsidiary
incurred to finance the acquisition by the Borrower or a Restricted
Subsidiary of fixed or capital assets (whether pursuant to a loan, a
Financing Lease or otherwise) in an aggregate principal amount not
exceeding $100,000,000 at any time outstanding; provided, however, that the
aggregate amount of any mandatory payments made by the Borrower with
respect to such Indebtedness shall not exceed $20,000,000 in any fiscal
year;
(c) Indebtedness of a Person (other than any Acquired Subsidiary)
which becomes a Restricted Subsidiary after the date hereof, provided that
(i) such indebtedness existed at the time such Person became a Restricted
Subsidiary and was not created in anticipation thereof, (ii) immediately
after giving effect to the acquisition of such Person by the Borrower or
its Restricted Subsidiary, no Default or Event of Default shall have
occurred and be continuing, (iii) immediately after giving effect to the
acquisition of such Person by the Borrower or its Restricted Subsidiary,
the Borrower and its Restricted Subsidiaries shall be in pro forma
74
<PAGE>
compliance with the covenants contained in subsection 7.1, calculated based
on the relevant financial statements delivered pursuant to subsection 6.1,
as though such acquisition occurred at the beginning of the period covered
thereby, as evidenced by a certificate of a Responsible Officer of the
Borrower furnished to the Administrative Agent demonstrating such
compliance; and (iv) at no time shall all such Indebtedness permitted under
this subsection (c) exceed $200,000,000 in the aggregate outstanding.
(d) additional Indebtedness of the Borrower and its Restricted
Subsidiaries not otherwise permitted hereunder not exceeding $100,000,000
in aggregate principal amount at any time outstanding; provided, however,
that the aggregate amount of any mandatory payments made by the Borrower
with respect to such Indebtedness shall not exceed $20,000,000 in any
fiscal year;
(e) Indebtedness of the Borrower and the Acquired Subsidiaries (other
than under subsection (a)) outstanding or committed on the Closing Date and
reflected on Schedule 7.2(e), provided that, with respect to all
Indebtedness of one Credit Party to another Credit Party, such Credit
Parties have complied with the provisions of subsection 7.2(h);
(f) Indebtedness in respect of the Interest Rate Agreements required
by subsection 6.11;
(g) Indebtedness in respect of Hedge Agreements incurred in the
ordinary course of business and consistent with prudent business practice
(in any case, for the purpose of risk management only and not for the
purpose of speculation);
(h) unsecured Indebtedness of any Credit Party to any other Credit
Party; provided, that (i) such Credit Parties have complied with the
provisions of Subsection 6.10(b) and (ii) there exists an instrument or
instruments evidencing such Indebtedness and such instrument or instruments
have been pledged to the Administrative Agent, for the benefit of the
Agents and the Lenders, pursuant to the terms of the Guarantee and
Collateral Agreement;
(i) Indebtedness secured by Permitted Liens;
(j) extensions, renewals or refinancings of Indebtedness under
subsection 7.2(c) and (e) so long as (i) such Indebtedness (the
"Refinancing Indebtedness") is in an aggregate principal amount not greater
-------------------------
than the aggregate principal amount of the Indebtedness being extended,
renewed or refinanced plus the amount of any premiums required to be paid
thereon and fees and expenses associated therewith, (ii) such Refinancing
Indebtedness has a later or equal final maturity and a longer or equal
weighted average life than the Indebtedness being extended, renewed or
refinanced, (iii) the interest rate applicable to such Refinancing
Indebtedness is a market interest rate (as determined in good faith by the
Board of Directors of the Borrower) as of the time of such extension,
renewal or refinancing, (iv) if the Indebtedness being extended, renewed or
refinanced is subordinated to the Obligations, such Refinancing
Indebtedness is subordinated to the extent of the Indebtedness being
extended, renewed, or refinanced, (v) the covenants, events of default and
other provisions thereof (including any guarantees thereof), taken as a
whole, are no less favorable to the Lenders than those contained in the
Indebtedness being refinanced and (vi) at the time and after giving effect
to such extension, renewal or refinancing, no Event of Default shall have
occurred and be continuing;
75
<PAGE>
(k) [RESERVED]
(l) Indebtedness of any Unrestricted Subsidiary consisting entirely
of Non-Recourse Debt; provided, however, that if any such Indebtedness
ceases to be Non-Recourse Debt of such Unrestricted Subsidiary, such event
shall be deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Borrower that was not permitted by this subsection
7.2(l); and
(m) Indebtedness of Peabody Australia to the Borrower in an aggregate
amount not to exceed $50,000,000; provided that there exists an instrument
or instruments evidencing such Indebtedness and such instrument or
instruments have been pledged to the Administrative Agent for the benefit
of the Agents and the Lenders pursuant to the terms of the Guarantee and
Collateral Agreement.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
-------------------
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, surety bonds, trade
contracts (other than for borrowed money), leases (other than Capital Lease
Obligations), reclamation bonds, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, zoning restrictions, other restrictions
and other similar encumbrances previously or hereafter incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or such Subsidiary, or which are
set forth in any Title Policy delivered to the Administrative Agent
pursuant to the terms of this Agreement;
(f) Liens in existence on the Closing Date and listed on Schedule
7.3(f), securing Indebtedness permitted by subsection 7.2(e);
(g) Liens securing Indebtedness of the Borrower and its Restricted
Subsidiaries permitted by subsection 7.2(b) incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens shall
be created substantially simultaneously with the acquisition of such fixed
or capital assets, (ii) such Liens do not at any time encumber any property
other
76
<PAGE>
than the property financed by such Indebtedness (other than after acquired
title in or on such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien) and (iii) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the original purchase price of such property of such property at
the time it was acquired;
(h) Liens on the property or assets of a Person (other than any
Acquired Subsidiary) which becomes a Restricted Subsidiary after the date
hereof securing Indebtedness permitted by subsection 7.2(c), provided that
(i) such Liens existed at the time such corporation became a Subsidiary and
were not created in anticipation thereof, (ii) any such Lien is not
expanded to cover any property or assets of such in or on such property
and proceeds of the existing collateral in accordance with the instrument
creating such Lien, and (iii) the amount of Indebtedness secured thereby is
not increased;
(i) Liens created pursuant to this Agreement and the Security
Documents;
(j) Liens on the property of the Borrower or any of its Subsidiaries,
as a tenant under a lease or sublease entered into in the ordinary course
of business by such Person, in favor of the landlord under such lease or
sublease, securing the tenant's performance under such lease or sublease,
as such Liens are provided to the landlord under applicable law and not
waived by the landlord;
(k) so long as no Default or Event of Default shall have occurred and
be continuing under subsection 8(h), attachment or judgment Liens in an
aggregate amount outstanding at any one time not in excess of $20,000,000;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or consignment
arrangements entered into by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business;
(m) Liens in favor of a banking institution arising by operation of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(n) Liens securing Refinancing Indebtedness, to the extent that the
Indebtedness being refinanced was originally secured in accordance with
this subsection 7.3; provided that such Lien does not apply to any
additional property or assets of the Borrower or any Subsidiary (other than
the proceeds of the property or asset subject to such Lien);
(o) Production Payments, royalties, dedication of reserves under
supply agreements or similar rights or interests granted, taken subject to,
or otherwise imposed on properties consistent with normal practices in the
mining industry;
(p) Liens on assets of (and Capital Stock and other equity interests
in) Unrestricted Subsidiaries securing obligations of Unrestricted
Subsidiaries not otherwise prohibited hereunder;
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(q) Liens on the Chaco Royalty Stream in connection with a
securitization thereof permitted by subsection 7.6;
(r) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding $5,000,000 in the aggregate at any time
outstanding and which are not senior to the Liens created pursuant to this
Agreement and the Security Documents; and
(s) Liens securing the net amount of Indebtedness under Hedging
Obligations.
7.4 Limitation on Guarantee Obligations. Create, incur, assume or
-----------------------------------
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Closing Date and listed
on Schedule 7.4 and extensions, renewals and replacements thereof,
including the exercise of a 5% option requiring an increase of the
Guarantee Obligations of the Borrower in respect of Black Beauty Coal
Company provided, however, that no such extension, renewal or replacement
shall shorten the fixed maturity or increase the principal amount of the
Indebtedness guaranteed by the original guarantee;
(b) Guarantee Obligations not otherwise permitted under this
subsection 7.4 incurred after the Closing Date in an aggregate amount not
to exceed $50,000,000 at any one time outstanding for the Borrower and its
Restricted Subsidiaries provided, however, that any such Guarantee
Obligations incurred by the Borrower and any of its Restricted Subsidiaries
with respect to the same transaction shall be treated as a single
transaction for the purposes of calculating the amount of Guarantee
Obligations outstanding under this subsection 7.4(b);
(c) guarantees made by the Subsidiaries of the Borrower pursuant to
the Senior Notes Documents and the Subordinated Notes Documents; provided
that such Subsidiaries are parties to the Guarantee and Collateral
Agreement;
(d) Guarantee Obligations of the Credit Parties created under the
Credit Documents;
(e) the L/C Obligations;
(f) Guarantee Obligations of the Borrower or any Subsidiary in
respect of obligations of a Restricted Subsidiary or the Borrower permitted
to be incurred by such Subsidiary or the Borrower by this Agreement;
(g) Guarantee Obligations which are performance guarantees by the
Borrower or any of its Restricted Subsidiaries of the ordinary course
obligations (other than for the payment of borrowed money) of any
Unrestricted Subsidiary in an aggregate amount not to exceed $150,000,000
at any one time outstanding; provided, however, that any such performance
guarantee incurred by the Borrower and any of its Subsidiaries with respect
to the same transaction shall be treated as a single transaction for the
purpose of calculating the amount of obligations outstanding under this
subsection 7.4(g);
(h) indemnities in favor of the companies issuing title insurance
policies insuring the Mortgages to induce such issuance;
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<PAGE>
(i) indemnities made in the Commitment Letter, the Credit Documents
and the Transaction Documents (including, without limitation, the
indemnification of TEG with respect to the "value at risk" in respect of
Citizens' trading book, which shall not exceed $5,000,000) and in the
Constitutional Documents of the Borrower and its Subsidiaries;
(j) Guarantee Obligations of Unrestricted Subsidiaries in respect of
the obligations of other Unrestricted Subsidiaries not otherwise prohibited
hereunder; and
(k) Guarantee Obligations in respect of a letter of credit issued for
the account of the Borrower and for benefit of the PBGC in a face amount
not to exceed $37,000,000 and for which TEG provides credit support.
7.5 Limitation on Fundamental Changes. Enter into any merger,
---------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting business
(other than as provided in subsection 7.15), except:
(a) any Restricted Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be
the continuing or surviving corporation) or with or into any one or more
wholly-owned Restricted Subsidiaries of the Borrower (provided that the
wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporations); provided that a Credit Party may only be merged or
consolidated with or into another Credit Party;
(b) any wholly-owned Restricted Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other wholly-owned
Restricted Subsidiary of the Borrower that is a Credit Party; and
(c) the Acquisition.
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Restricted Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person other
than the Borrower or any wholly-owned Subsidiary that is a Credit Party, except:
(a) the sale or other disposition of obsolete or worn out property in
the ordinary course of business;
(b) the sale for fair market value (as determined in good faith by
the Borrower (and evidenced in a resolution of the Board of Directors of
the Borrower delivered to the Administrative Agent with respect to any such
sale determined to have a fair market value in excess of $25,000,000)) of
any property or assets not otherwise permitted by this subsection 7.6;
provided that the Net Proceeds thereof shall be applied pursuant to
subsection 2.6(b)(ii) provided, further, that (i) the aggregate fair market
value of all such Asset Sales during the first year after the Closing Date
does not exceed five percent (5%) of the Total Assets of the Borrower and
its Restricted Subsidiaries (determined immediately prior to the time of
each
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<PAGE>
such sale) and (ii) the aggregate fair market value of all such Asset Sales
during each year subsequent to the first year after the Closing Date does
not exceed ten percent (10%) of the Total Assets of the Borrower and its
Restricted Subsidiaries (determined immediately prior to the time of each
such sale);
(c) as permitted pursuant to subsection 7.5(b);
(d) the sale, lease, transfer or exchange of inventory (including
Coal and related products and mining equipment) in the ordinary course of
business;
(e) subject to subsection 6.5, transfers resulting from any casualty
or condemnation of property or assets;
(f) intercompany sales or transfers (among Credit Parties) of assets
made in the ordinary course of business;
(g) licenses, leases or subleases of tangible property in the
ordinary course of business;
(h) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business;
(i) the sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the compromise
or collection thereof;
(j) the sale or discount of accounts receivable without recourse
arising in the ordinary course of business and, in any event, not including
a securitization or other similar transaction;
(k) the sale of any assets in connection with any sale and leaseback
transaction otherwise permitted by subsection 7.12;
(l) the sale or transfer of property or assets to the extent
constituting an Investment in a Joint Venture or Unrestricted Subsidiary
permitted by subsections 7.9(k) or 7.9(n), respectively, or otherwise
permitted by subsection 7.9(i);
(m) the restructuring, renegotiation or termination of any Coal
Supply Agreements resulting in the Borrower or its Restricted Subsidiaries
receiving in a single transaction, or series of related transactions, cash
proceeds of no greater than $50,000,000; and
(n) an exchange or "swap" of assets of the Borrower or any of its
Restricted Subsidiaries for the assets (including ownership interests and
excluding cash) of a Person other than the Borrower or a Restricted
Subsidiary; provided that (A) the assets received by the Borrower or such
Restricted Subsidiary will be used or useful in a Similar Business and (B)
the Borrower or such Restricted Subsidiary receives reasonably equivalent
value for such assets, such equivalent value to be demonstrated to the
Administrative Agent (i) in a certificate of a Responsible Officer of the
Borrower or such Restricted Subsidiary if the fair market value of the
assets received by the Borrower or such Restricted Subsidiary is no greater
than $10,000,000, (ii) in a resolution of the Board of Directors of the
Borrower or such Restricted
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Subsidiary if the fair market value of the assets received by the Borrower
or such Restricted Subsidiary is no greater than $10,000,000, (ii) in a
resolution of the Board of Directors of the Borrower or such Restricted
Subsidiary if the fair market value of the assets received by the Borrower
or such Restricted Subsidiary is greater than $10,000,000 but no greater
than $25,000,000 or (iii) at the Borrower's expense, in an opinion of an
independent valuation firm selected by the Administrative Agent and
reasonably acceptable to the Borrower if the fair market value of the
assets received by the Borrower or such Restricted Subsidiary is greater
than $25,000,000; provided, further, that the fair market value of all such
assets exchanged or "swapped" in any fiscal year of the Borrower does not
exceed ten percent (10%) of the Total Assets of the Borrower and its
Restricted Subsidiaries (determined immediately prior to the time of each
such exchange or swap); and
(o) the sale of the Chaco Royalty Stream in connection with the
securitization thereof for fair market value as determined by the
Administrative Agent in its reasonable discretion;
provided, however, that with respect to any conveyance, sale, lease, assignment,
transfer, exchange, "swap" or disposition of any assets of the Borrower or its
Restricted Subsidiaries that constitutes Collateral to Persons that are not
Credit Parties (including, without limitation, by virtue of the designation of a
Credit Party as an Unrestricted Subsidiary as otherwise permitted hereunder, but
other than pursuant to subsections 7.6(a), (d), (e), (g), (h), (i), (j), (k) (to
the extent such sale and leaseback is permitted under subsection 7.12(b)) or
(o)), no more than the sum (the "Collateral Amount") of (i) 5% the Total Assets
-----------------
of the Borrower and its Restricted Subsidiaries (determined immediately prior to
the time of each such conveyance, sale, lease, assignment, transfer, exchange,
"swap", disposition or designation) and (ii) the net amount by which the Total
Commitments have been permanently reduced at such time, may be so conveyed,
sold, leased, assigned, transferred or disposed of in the aggregate during the
term of this Agreement without the Borrower substantially simultaneously
replacing (pursuant to subsections 2.6(b)(ii), 7.6(n) or otherwise) such assets
so conveyed, sold, leased, assigned, transferred, exchanged, "swapped," disposed
of or designated in excess of the Collateral Amount with other assets to be
included as Collateral on a dollar-for-dollar basis (as valued by the
Administrative Agent (or its experts) in its reasonable discretion (but at the
expense of the Borrower).
7.7 Dividends and Distributions; Restrictions on Ability of
-------------------------------------------------------
Restricted Subsidiaries to Pay Dividends. (a) Declare or pay, directly or
- -----------------------------------------
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its Capital Stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary to purchase or acquire) any shares of any class of its Capital Stock
or set aside any amount for any such purpose provided, however, that any
Restricted Subsidiary may declare and pay dividends or make other distributions
to the Borrower or another Subsidiary that is a Credit Party.
(b) Permit its Restricted Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Restricted Subsidiary
to (i) pay any dividends or make any other distributions on its capital
stock or any other interest or (ii) make or repay any loans or advances to
the Borrower or the parent of such Restricted Subsidiary (subclauses (i)
and (ii) are collectively referred to as an "Upstream Payment"); provided,
----------------
however, that the foregoing shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date under Indebtedness set forth on
Schedule 7.2(e) or under Operating Leases set forth on Schedule 7.7;
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(ii) contained in any debt instrument relating to a Person
(other than any Acquired Subsidiary) acquired after the Closing Date;
provided that (A) such encumbrances and restrictions are not
applicable to any Person other than such Person or property or assets
acquired, (B) such instrument was in existence at the time of such
acquisition, and (C) the Borrower reasonably believes at the time of
such acquisition that the terms of such instrument will not encumber
or restrict the ability of such acquired Person to make an Upstream
Payment in manner that would adversely affect the Borrower's ability
to perform its obligations under the Credit Documents when due;
(iii) incurred in connection with any Indebtedness permitted
pursuant to subsection 7.2 (including any permitted extension,
refinancing, renewal or replacement of Indebtedness contemplated by
clauses (i) and (ii) above); provided that, (A) the Borrower
reasonably believes at the time such Indebtedness is incurred that the
terms of such Indebtedness will not restrict the ability of the Person
incurring such Indebtedness to make an Upstream Payment in a manner
that would adversely affect the Borrower's ability to perform its
obligations under the Credit Documents when due and (B) such
Indebtedness (other than Non-Recourse Debt of Unrestricted
Subsidiaries) contains no express encumbrances or restrictions on the
ability of such Person to make an Upstream Payment;
(iv) contained in agreements relating to the sale of a
Subsidiary pending such sale, provided, that such encumbrances and
restrictions apply only to the Subsidiary that is to be sold and that
such sale is otherwise permitted hereunder; and
(v) existing under, or by reason of, applicable law.
7.8 Limitation on Capital Expenditures. Make or commit to make
----------------------------------
Capital Expenditures in respect of the purchase or other acquisition of fixed or
capital assets (excluding with respect to any such asset acquired in connection
with normal replacement and maintenance programs properly charged to current
operations, any assets acquired with the proceeds from insurance for casualty or
condemnation losses whether or not paid with the proceeds from insurance
policies, any assets purchased with the intent to enter into a permitted sale
and leaseback transaction resulting in an operating lease pursuant to subsection
7.12(b) and reinvestments of the proceeds of Asset Sales permitted by subsection
2.6(b)(ii)) except for Capital Expenditures in the ordinary course of business
not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries
during any of the fiscal years of the Borrower set forth below, the amount set
forth opposite such fiscal year below:
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
1999 $300,000,000
2000 $300,000,000
2001 $300,000,000
2002 $300,000,000
2003 $300,000,000
2004 $300,000,000
2005 and thereafter $300,000,000
</TABLE>
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<PAGE>
provided, that up to 33 1/3% of any amount listed above for any fiscal year not
so expended in such fiscal year may be carried over for expenditure in the
immediately following fiscal year.
7.9 Limitation on Investments, Loans and Advances. Make any advance,
---------------------------------------------
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person ("Investments"),
-----------
except :
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) loans and advances to employees of the Borrower or its Restricted
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Borrower and its
Restricted Subsidiaries not to exceed $5,000,000 at any one time
outstanding;
(d) Investments by the Borrower or its Restricted Subsidiaries in
Persons that are, or become by virtue of such Investment (and compliance
with subsection 6.10), Credit Parties and investments by such Subsidiaries
in the Borrower and in other Subsidiaries that are Credit Parties;
(e) Investments in existence on the Closing Date set forth on
Schedule 7.9(e) and extensions, renewals, modifications, restatements or
replacements thereof; provided that no such extension, renewal,
modification or restatement shall increase the amount of the original loan,
advance or investment;
(f) promissory notes and other similar non-cash consideration
received by the Borrower and its Restricted Subsidiaries in connection with
the dispositions permitted by subsection 7.6(b);
(g) Investments required by subsection 6.11;
(h) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers of the Borrower and its Restricted Subsidiaries and in
settlement of delinquent obligations of, and other disputes with, such
customers and suppliers arising in the ordinary course of business;
(i) so long as no Event of Default has occurred and is continuing, in
addition to the other Investments permitted by this subsection 7.9,
Investments in an aggregate amount not exceeding $75,000,000 (net of
dividends and any other distributions paid in respect thereof), at cost,
without regard to any write down or write up thereof;
(j) Investments in the nature of Production Payments, royalties,
dedication of reserves under supply agreements or similar rights or
interests granted, taken subject to, or otherwise imposed on properties
with normal practices in the mining industry;
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<PAGE>
(k) Investments in Joint Ventures in an amount not to exceed, in the
aggregate outstanding at any time (net of dividends and any other
distributions paid in respect thereof), five percent (5%) of the Total
Assets of the Borrower and its Restricted Subsidiaries (determined
immediately prior to the time of each such Investment);
(l) Investments in any assets constituting a business unit received
by the Borrower or its Restricted Subsidiaries by virtue of an asset
exchange or swap with a third party permitted by subsection 7.6(n) or
acquired as a permitted Capital Expenditure under subsection 7.8;
(m) Investments in a special purpose entity created in connection
with the securitization of the Chaco Royalty Stream as permitted by
subsection 7.6(o) in an amount not to exceed $20,000,000 in the aggregate;
(n) Investments in Unrestricted Subsidiaries in an amount not to
exceed in the aggregate outstanding at any time (net of dividends and any
other distributions paid in respect thereof) two and one-half percent (2
1/2%)) of the Total Assets of the Borrower and its Restricted Subsidiaries
(determined immediately prior to the time of each such Investment) during
the first year after the Closing Date, and five percent (5%) of the Total
Assets of the Borrower and its Restricted Subsidiaries (determined
immediately prior to the time of each such Investment) at all times
thereafter;
(o) Investments in Citizens Entities on the Closing Date in an amount
not to exceed $32,000,000 and Investments in Citizens Entities
substantially concurrent with the Closing Date in an amount not to exceed
$50,000,000;
(p) Hedge Agreements permitted under subsection 7.2(g); and
(q) subject to the provisions of subsection 7.2(m), Investments by
the Borrower in Peabody Australia in an aggregate amount not to exceed
$50,000,000.
7.10 Limitation on Optional Payments and Modifications of Instruments
----------------------------------------------------------------
and Agreements. (a) Make any optional payment or prepayment on or redemption
- --------------
or purchase of, or deliver any funds to any trustee for the prepayment,
redemption or defeasance of, the Senior Notes or the Subordinated Notes (whether
upon acceleration of the maturity thereof, upon a "Change of Control" (as
defined in the Senior Notes Indenture or the Subordinated Notes Indenture) or
otherwise) or (b) amend, modify or change, or consent or agree to any amendment,
modification or change to any of the material terms of any Senior Notes
Documents or Subordinated Notes Documents (other than any such amendment,
modification or change which would extend the maturity or reduce the amount of
any payment of principal thereof or which would reduce the rate or extend the
date for payment of interest thereon).
(b) Amend its Constitutional Documents in any manner which could
adversely affect the rights of the Lenders under the Credit Documents or their
ability to enforce the same.
(c) Modify or amend, or waive any provision or condition contained
in, any of the Transaction Documents in any manner that could reasonably be
expected to be adverse to the Lenders.
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7.11 Limitation on Transactions with Affiliates. (a) Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (i) otherwise permitted under this Agreement, (ii) in the
ordinary course of the Borrower's or such Restricted Subsidiary's business and
(iii) upon fair and not materially less favorable terms to the Borrower or such
Restricted Subsidiary, as the case may be, than it reasonably believes it would
obtain in a comparable arm's length transaction with a Person which is not an
Affiliate; provided that satisfaction of the foregoing clause (iii) shall be
demonstrated to the Administrative Agent (i) in a certificate of a Responsible
Officer of the Borrower or such Restricted Subsidiary if the fair market value
of the property or service purchased, sold, leased or exchanged by the Borrower
or such Restricted Subsidiary is no greater than $10,000,000 (ii) in a
resolution of the Board of Directors of the Borrower or such Restricted
Subsidiary if the fair market value of the property or service purchased, sold,
leased or exchanged by the Borrower or such Restricted Subsidiary is greater
than $10,000,000 but no greater than $25,000,000 or (iii) at the Borrower's
expense in an opinion of an independent valuation firm selected by the
Administrative Agent and reasonably acceptable to the Borrower if the fair
market value of the property or service purchased, sold, leased or exchanged by
the Borrower or such Restricted Subsidiary is greater than $25,000,000;
provided, however, that the provisions of the immediately preceding proviso of
this subsection 7.11 shall not apply with respect to the pledge by the Borrower
of the Capital Stock of any Citizens Entity to Lehman Brothers Holding Inc. to
secure Guarantee Obligations issued by Lehman Brothers Holding Inc. in favor of
any Person to support the Citizens Entities' "trading book". Notwithstanding the
foregoing, any such transaction which is determined to be materially less
favorable to the Borrower or a Restricted Subsidiary than the Borrower or such
Restricted Subsidiary reasonably believes it would obtain in a comparable arm's
length transaction nevertheless shall be permitted if the excess consideration
being paid to such Affiliate would otherwise be permitted at such time as an
Investment in such Affiliate under subsection 7.9 and, upon consummation of such
transaction, such excess consideration being paid to such Affiliate shall
constitute an Investment for the purposes of calculating compliance with
subsection 7.9;
(b) In addition, notwithstanding the foregoing, the Borrower and its
Restricted Subsidiaries shall be entitled to make the following payments and/or
to enter into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of the Borrower;
(ii) the employment arrangements with respect to the procurement
of services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith;
(iii) payments to directors and officers of the Borrower and its
Subsidiaries in respect of the indemnification of such Persons in such
respective capacities from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, as the case may be, pursuant to the
Constitutional Documents or other corporate action of the Borrower or its
Restricted Subsidiaries, respectively, or pursuant to applicable law;
(iv) transactions described in the Transaction Documents;
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(v) Investments in Unrestricted Subsidiaries and Joint Ventures
permitted by subsection 7.9; and
(vi) transactions among Credit Parties.
7.12 Limitation on Sales and Leasebacks. Enter into any arrangement
----------------------------------
with any Person providing for the leasing by the Borrower or any Restricted
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Restricted Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or such
Restricted Subsidiary; provided that the Borrower or a Restricted Subsidiary may
enter into (a) a sale and leaseback transaction if the Borrower or such
Restricted Subsidiary could have (i) incurred Indebtedness in an amount equal to
the Attributable Debt relating to such sale and leaseback transaction and (ii)
incurred a Lien to secure such Indebtedness, in each case in accordance with the
restrictions contained in this Agreement and the other Credit Documents and (b)
any sale and leaseback transaction relating to newly acquired assets where such
sale and leaseback is consummated within 180 days after the initial acquisition
of such assets by the Borrower or such Restricted Subsidiary.
7.13 Limitation on Changes in Fiscal Year. Permit the fiscal year of
------------------------------------
the Borrower to end on a day other than March 31, except that the Borrower may
change its fiscal year end to December 31.
7.14 Limitation on Negative Pledge Clauses. Enter into with any
-------------------------------------
Person any agreement, other than (a) this Agreement, (b) the Senior Notes
Documents, (c) the Subordinated Notes Documents and (d) any industrial revenue
bonds, purchase money mortgages, Financing Leases permitted by this Agreement or
agreements evidencing Indebtedness permitted by subsection 7.2(b), (c) or (j)
(to the extent refinancing Indebtedness incurred under subsection 7.2(c)) (in
which cases, any prohibition or limitation shall only be effective against the
assets financed thereby other than after acquired title in or on such property
and proceeds of the existing collateral in accordance with the instrument
creating such Lien), which prohibits or limits the ability of the Borrower or
any of its Restricted Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
7.15 Limitation on Lines of Business. Enter into any business,
-------------------------------
either directly or through any Subsidiary, except for Similar Businesses.
7.16 Designated Senior Debt. Designate any Indebtedness or other
----------------------
obligation, other than Indebtedness under the Credit Documents, as "Designated
----------
Senior Debt," as such term is defined in the Subordinated Notes Indenture as in
- -----------
effect on the Closing Date, or any comparable designation that confers upon the
holders of such Indebtedness or other obligation (or any Person acting on their
behalf) the right to initiate blockage periods under the Subordinated Notes
Indenture or any other Indebtedness or other obligation of the Borrower and its
Subsidiaries.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
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<PAGE>
(a) The Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Loan, or any
other amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or hereof; or
(b) any representation or warranty made or deemed made by the
Borrower or any other Credit Party herein or in any other Credit Document
or which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Credit Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed made;
or
(c) the Borrower or any other Credit Party shall default in the
observance or performance of any agreement contained in subsection 6.4(a),
6.4(d), 6.5(a) (first sentence only), 6.7(d), 6.10, 6.14 or 6.17 or Section
7 of this Agreement or subsection 5.5, 5.6, 5.7, 5.8(b), 5.9(a), 5.10 or
5.11 of the Guarantee and Collateral Agreement; or
(d) the Borrower or any other Credit Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Credit Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days (unless a shorter cure period
therefor is provided therein); or
(e) the Borrower or any of its Restricted Subsidiaries shall (i)
default (w) in any payment under any coal lease, (x) in any payment of
principal of or interest of any Indebtedness (other than the Loans, the L/C
Obligations and any intercompany debt) or the net obligations under any
Interest Rate Agreement or (y) in the payment of any Guarantee Obligation
(excluding any guaranties of the Obligations), beyond the period of grace,
if any, provided in the instrument or agreement under which such lease,
Indebtedness, Interest Rate Agreement obligation or Guarantee Obligation
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such lease, Indebtedness, Interest
Rate Agreement obligation or Guarantee Obligation or contained in any
instrument or agreement evidencing, securing or relating thereto, or, other
than with respect to a lease, any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause,
or to permit the lessor under such lease or the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
lease to be terminated (and such lease is actually terminated), such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event
of Default shall exist under this paragraph unless (i) the aggregate amount
of lease payment obligations, Indebtedness, Interest Rate Agreement
obligations and/or Guarantee Obligations in respect of which any default or
other event or condition referred to in this paragraph shall have occurred
shall be equal to at least $50,000,000, (ii) such default continues for a
period in excess of 10 days and (iii) with respect to defaults under coal
leases only, the termination of such lease could reasonably be expected to
result in a Material Adverse Effect; or
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(f) (i) the Borrower, any of its Restricted Subsidiaries or any of
its Specified Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, the Borrower, any of its Restricted Subsidiaries or any of its
Specified Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower, any
of its Restricted Subsidiaries or any of its Specified Subsidiaries, any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
the Borrower, any of its Restricted Subsidiaries or any of its Specified
Subsidiaries, any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) the Borrower, any of its Restricted Subsidiaries or any of its
Specified Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) the Borrower, any of
its Restricted Subsidiaries or any of its Specified Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) the Borrower, any Subsidiary or any Commonly Controlled
Entity has incurred or is likely to incur a liability in connection with
any "prohibited transaction" (as defined in Section 406 of ERISA or Section
----------------------
4975 of the Code) involving any Plan, (ii) any "accumulated funding
-------------------
deficiency" (as defined in Section 302 of ERISA), whether or not waived,
----------
shall exist with respect to any Plan or any Lien in favor of the PBGC or a
Plan shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate, any Single Employer Plan, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Administrative Agent is reasonably likely to,
incur any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multiemployer Plan, (vi) the Borrower, its
Subsidiaries or its "related persons" as defined in the Coal Act, shall be
required to make during any fiscal year payments pursuant to the Coal Act
that, in the aggregate, exceed the amount set forth on Schedule IV with
respect to such fiscal year, (vii) the Borrower or its Subsidiaries shall
be required to make during any fiscal year payments pursuant to federal and
state Black Lung Act claims in excess of the amount set forth on Schedule V
with respect to such fiscal year, (viii) the Borrower or its Subsidiaries
shall be required to make during any fiscal year payments pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees (other than as required by Section
601 of ERISA or the Coal Act) that, in the aggregate, exceed the amount set
forth on Schedule VI with respect to such fiscal year or (ix) any other
similar event or condition shall occur or exist with respect to a Plan that
is not in the ordinary course; and in each case in clauses (i) through (ix)
above, such event or
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condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against the
Borrower or any of its Restricted Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance (which coverage has been
acknowledged by the appropriate insurers)) of $25,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) one or more surety, reclamation or similar bonds securing
obligations of the Borrower or any Subsidiary (or any required guarantees
thereof or required letters of credit with respect thereto) with an
aggregate face amount of $100,000,000 or more shall be terminated,
suspended or revoked and not replaced within 30 days of such termination,
suspension or revocation; provided that the Borrower or any Subsidiary
shall be permitted to replace such surety bonds with self-bonding
obligations to the extent permitted by any Person to which the obligations
secured by such bonds are owed) prior to full satisfaction of the
obligations secured by such bonds; or
(j) (i) any of the Security Documents shall cease, for any reason, to
be in full force and effect (unless released by the Administrative Agent at
the direction of the requisite Lenders or as otherwise permitted under this
Agreement or the other Credit Documents), or the Borrower or any other
Credit Party which is a party to any of the Security Documents shall so
assert or (ii) the Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby (and, if such invalidity is such so as to be amenable to
cure without materially disadvantaging the position of the Administrative
Agent and the Lenders, as the case may be, as secured parties thereunder,
the Credit Party shall have failed to cure such invalidity within 30 days
after notice from the Administrative Agent); or
(k) the Guarantee Obligation of any Credit Party under the Credit
Documents shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Credit Party or any Person acting on behalf of any Credit Party, shall deny
or disaffirm its obligations under such Guarantee Obligation; or
(l) there shall have occurred a Change in Control,
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower declare the Commitments to be terminated forthwith, whereupon
the Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice of default to the
Borrower, declare the Loans
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hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Upon an Event of Default hereunder, the Agents and the Lenders shall also have
all of the rights granted to them under the Security Documents and applicable
law. Upon an Event of Default, and at the request of the Administrative Agent,
for each real property interest (including coal reserves) selected by the
Administrative Agent which is owned or leased by the Borrower or any of its
Restricted Subsidiaries, the Borrower shall promptly (i) deliver to the
Administrative Agent, a Mortgage, executed and delivered by a duly authorized
officer of the mortgagor party thereto, with a counterpart or a conformed copy
for each Lender, and (ii) with respect to each such Mortgage, comply with all
other requirements in connection with the delivery thereof as set forth in
subsections 6.10(c)(i)(B) and 6.10(c)(i)(C).
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral and cash collateral account to secure all obligations of the Borrower
under this Agreement and the other Credit Documents. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the Borrower hereunder and
under the Notes. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of such security interest in
such cash collateral account.
EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION, PRESENTMENT, DEMAND,
PROTEST AND ALL OTHER NOTICES OF ANY KIND ARE HEREBY EXPRESSLY WAIVED.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints each of the Agents as the agent of such Lender under this Agreement and
the other Credit Documents, and each such Lender irrevocably authorizes each of
the Agents, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to such Agent by the
terms of this Agreement and the other Credit Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, none of the Agents shall have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties,
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obligations or liabilities shall be read into this Agreement or any other Credit
Document or otherwise exist against any of the Agents.
9.2 Delegation of Duties. The Agents may execute any of their duties
--------------------
under this Agreement and the other Credit Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. None of the Agents shall be responsible for
the negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3 Exculpatory Provisions. Neither any of the Agents nor any of
----------------------
their officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Credit
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Credit Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by such Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. None of the Agents shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit
Document, or to inspect the properties, books or records of the Borrower.
9.4 Reliance by Agents. The Agents shall be entitled to rely, and
------------------
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by such Agent. The Agents may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with such Agent. Except as
expressly provided in this Agreement, the Agents shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agents shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Credit Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge or
-----------------
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that any Agent receives such a
-----------------
notice, such Agent shall give notice thereof to the Lenders. Each Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until such
Agent shall have received such directions, such Agent may (but shall not be
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obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
----------------------------------------
acknowledges that neither any of the Agents nor any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any of the Agents
hereafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by any of the Agents to any
Lender. Each Lender represents to each of the Agents that it has, independently
and without reliance upon any of the Agents or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and credit worthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon any
of the Agents or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Credit Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and credit worthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by any of the Agents hereunder (or copies of which have been provided to
the Administrative Agent pursuant to this Agreement), none of the Agents shall
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Credit Party which may come
into the possession of such Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify each of the
---------------
Agents in their respective capacities as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages with respect to all
Types of Loans in effect on the date on which indemnification is sought, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against any of the Agents in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any of the
Agents under or in connection with any of the foregoing; provided that no Lender
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
9.8 Agents, in Their Individual Capacities. The Agents and their
--------------------------------------
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Agents were not
acting in such capacities hereunder and under the other Credit Documents. With
respect to the Loans made or renewed by it and any Note issued to it and with
respect to any Letter of Credit issued or participated in by it, each Agent
shall have the same rights and powers under this Agreement and the other Credit
Documents as any Lender and may exercise the
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same as though it were not an Agent, and the terms "Lender" and "Lenders" shall
------ -------
include the Agents in their individual capacities.
9.9 Successor Administrative Agent, Documentation Agent and
-------------------------------------------------------
Syndication Agent. The Administrative Agent, any Documentation Agent or the
- -----------------
Syndication Agent may resign as Administrative Agent, Documentation Agent or
Syndication Agent, as the case may be, upon 30 days' notice to the Lenders. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Credit Documents or if a Documentation Agent or the
Syndication Agent shall resign as Syndication Agent or Documentation Agent under
this Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent (provided that it shall have been approved by the Borrower,
which approval shall not be unreasonably withheld), shall succeed to the rights,
powers and duties of the Administrative Agent or a Documentation Agent or the
Syndication Agent, as the case may be, hereunder. If no successor Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's,
Documentation Agent's or Syndication Agent's, as the case may be, giving of
notice of resignation, the retiring Administrative Agent, Documentation Agent,
or Syndication Agent, as the case may be, may, on behalf of the Required
Lenders, appoint a successor, Administrative Agent, Documentation Agent, or
Syndication Agent, as the case may be, which shall be a Lender, and if no Lender
shall be willing to serve, be a commercial bank having a combined capital and
surplus of at least $500,000,000. Effective upon such appointment and approval,
the term "Administrative Agent" or "Documentation Agent" or "Syndication Agent"
-------------------- ------------------- -----------------
as the case may be, shall mean or include such successor agent, and the former
Administrative Agent's or Syndication Agent's or Documentation Agent's, as the
case may be, rights, powers and duties as Administrative Agent or Syndication
Agent or Documentation Agent, as the case may be, shall be terminated, without
any other or further act or deed on the part of such former Administrative Agent
or Documentation Agent or Syndication Agent, as the case may be, or any of the
parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's or Documentation Agent's or Syndication Agent's
resignation as Administrative Agent or Documentation Agent or Syndication Agent,
as the case may be, the provisions of this Section 9 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent or Documentation Agent or Syndication Agent, as the case may be, under
this Agreement and the other Credit Documents. In connection with the
appointment of any successor Administrative Agent hereunder, the Borrower shall,
and shall cause each of the Credit Parties to, promptly execute such documents,
instruments, amendments and the like (such as, without limitation, UCC-3
amendments) necessary to effect such succession and preserve the Agents' and the
Lender's rights hereunder, under the other Credit Documents and in the
Collateral.
9.10 The Arranger. Except as expressly set forth herein, the
------------
Arranger, in its capacity as such, shall ha ve no duties or responsibilities,
and shall incur no liabilities, under this Agreement or the other Credit
Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any other
----------------------
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with
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the Borrower written amendments, supplements or modifications hereto and to the
other Credit Documents for the purpose of adding any provisions to this
Agreement or the other Credit Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Credit Documents or any Default or Event of Default and
its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend any scheduled
date of payment or maturity of any Loan or any L/C Obligation under subsection
3.5, extend the expiration of any Letter of Credit beyond the Revolving Loan
Termination Date, or reduce the stated rate or amount of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof, in each
case without the consent of each Lender affected thereby, or increase any
commitment of any Lender or extend the expiry of any commitment of any Lender
without the consent of such Lender, or (ii) amend, modify or waive any provision
of this subsection or reduce the percentage specified in the definition of
Required Lenders or Requisite Class Lenders, or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Credit Documents, in each case without the written
consent of all the Lenders, or (iii) release all or substantially all of the
Collateral or release any of the Credit Parties from their Guarantee Obligations
under the Credit Documents (except as otherwise expressly permitted under the
Credit Documents) without the consent of all Lenders, or (iv) amend, modify or
waive any provision of Section 9 without the written consent of the then Agents,
(v) amend, modify or waive any provision of subsection 2.1(b), any other
provision of this Agreement relating to the Swing Line Loans or the Swing Line
Note without the written consent of the Swing Line Lender, or (vi) amend, modify
or waive any provision of this Agreement or any other Credit Document which
would directly and adversely affect the Arranger or the Agents or the Issuing
Lender or the Swing Line Lender without the written consent of the Arranger, the
Agents or the Issuing Lender or the Swing Line Lender, as the case may be. In
addition to the foregoing, no amendment, modification, termination or waiver of
any provision of subsection 2.5 or subsection 2.6 which has the effect of
changing any interim scheduled payments, voluntary or mandatory prepayments (or
the applications thereof) or Commitment reductions applicable to any Class (an
"Affected Class") in a manner that disproportionately disadvantages such Class
--------------
relative to the other Class shall be effective without the written concurrence
of the Requisite Class Lenders of the Affected Class (it being understood and
agreed that any amendment, modification, termination or waiver of any provision
which only postpones or reduces any interim scheduled payment, voluntary or
mandatory prepayment or Commitment reduction from those set forth in subsection
2.6 with respect to only one Class shall be deemed to not disproportionately
disadvantage the other Class and, therefore, shall not require the consent of
Requisite Class Lenders of such other Class). Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Lenders, the Agents and the Issuing
Lender and all future holders of the Loans. Any extension of a Letter of Credit
by the Issuing Lender shall be treated hereunder as an issuance of a new Letter
of Credit. In the case of any waiver, the Borrower, the Lenders and the Agents
and the Issuing Lender shall be restored to their former positions and rights
hereunder and under the other Credit Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
10.2 Notices. Except as otherwise expressly set forth herein, all
-------
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made (a) in the case of delivery by hand, when delivered, (b) in the case of
delivery by
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mail, three days after being deposited in the mails, postage prepaid, or (c) in
the case of delivery by facsimile transmission, when sent and receipt has been
confirmed, addressed as follows in the case of the Borrower, the Administrative
Agent, the Syndication Agent or either Documentation Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto:
The Borrower or
any of its
Subsidiaries: Lehman Merchant Banking
3 World Financial Center
200 Vesey Street
New York, NY 10285
Attention: Steven Berkenfeld, Esq.
Fax: 212-526-2198
P&L Coal Holdings Corporation
701 Market Street
St. Louis, Missouri
Attention: Steve Schaab
Fax: 314-342-3449
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The Administrative
Agent: The First National Bank of Chicago
Mail Suite 0362
One First National Plaza
Chicago, Illinois 60670-0362
Attention: Energy, Minerals & Utilities
Fax: 312-732-3055
The Documentation
Agents: Bank of America National Trust & Savings Association
335 Madison Avenue
New York, NY 10017
Attention: Heidi Sandquist
Fax: 212-503-7502
and
The Fuji Bank, Limited
2 World Trade Center
79th Floor
New York, NY 10048
Attention: David Lee
Fax: 212-848-2399
The Syndication
Agent: Lehman Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Michelle Swanson
Fax: 212-526-4911
The Arranger: Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Michelle Swanson
Fax: 212-526-4911
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.7, 2.12 or 3.2 shall not
be effective until received.
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10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Credit Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
-----------------------------
or reimburse each Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other
Credit Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees, charges and disbursements of a single counsel for the Agents (in addition
to any local and foreign counsel), (b) to pay or reimburse each Lender and each
Agent for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Credit Documents
and any such other documents and any "workout" hereunder or thereunder,
including, without limitation, the fees and disbursements of counsel to each
Lender and of counsel to any Agent, (c) to pay, indemnify, and hold each Lender
and each Agent and each Issuing Lender harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Credit Documents
and any such other documents, and (d) to pay, defend, indemnify, and hold each
Lender and each Agent and each Issuing Lender harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement or the other Credit Documents or the use of the
proceeds of the Loans in connection with the Transaction, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Mining and Environmental Law applicable to the
activities of the Borrower, any of its Subsidiaries or any of the Properties or
Businesses or any prior businesses for which the Borrower has, or may reasonably
be alleged to have retained liability (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"). The Borrower shall have no
-----------------------
obligation hereunder to any Agent or the Issuing Lender or any Lender with
respect to otherwise indemnified liabilities arising from the gross negligence
or willful misconduct of such Agent or the Issuing Lender or such Lender. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agents and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
97
<PAGE>
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
------------
Lender or any other interest of such Lender hereunder and under the other Credit
Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other
Credit Documents, and the Borrower and the Agents shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Credit Document except for those
specified in clauses (i) and (ii) of the proviso to subsection 10.1. The
Borrower agrees that if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement; provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 10.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of subsections 2.14, 2.15 and 2.16
with respect to its participation in the Letters of Credit, the Commitments and
the Loans outstanding from time to time as if it was a Lender; provided that in
the case of subsection 2.15, such Participant shall have complied with the
requirements of said Section; provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any affiliate thereof (including, without limitation, in the case of
any Lender that is an investment fund which is regularly engaged in making,
purchasing or investing in loans or securities, any other such fund which is
under common (or affiliated) management with such Lender), or, with the consent
of the Borrower, the Issuing Lender (with respect to assignments of Revolving
Credit Commitments and Revolving Credit Loans only) and the Syndication Agent
(which in each case shall not be unreasonably withheld and shall not be required
in connection with an assignment involving LCPI), to any other Person (an
"Assignee") all or any part of its rights and obligations under this Agreement
--------
and the other Credit Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit F, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an affiliate thereof (including, without limitation, in the case of a fund,
another fund under common (or affiliated) management therewith), by the
Borrower, the Issuing Lender (with respect to assignments of Revolving Credit
Commitments and Revolving Credit Loans only) and the Syndication Agent) and
delivered to the Administrative Agent for its acceptance and recording in the
Register with a copy to the Syndication Agent, provided that, (A) in the case of
any such assignment to a Person other than a Lender or any affiliate thereof
(including, without limitation, in the case of a fund, another fund under common
(or affiliated) management therewith), either (x) such assignment is of all the
rights and obligations of the assigning Lender or (y) the sum of the aggregate
principal amount of
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<PAGE>
the Loans, the aggregate amount of the L/C Obligations and the aggregate amount
of the unused Commitments being assigned is not less than $5,000,000 (or such
lesser amount as may be agreed to by the Borrower and the Syndication Agent),
(B) in the case of any such assignment to a Person other than a Lender or any
affiliate thereof (including, without limitation, in the case of a fund, another
fund under common (or affiliated) management therewith), each Assignee which is
a Non-U.S. Lender shall comply with the provisions of subsection 2.15(b) hereof
and (C) any assignment to an Assignee as to which the Borrower has no right of
consent under this subsection shall not be permitted if it would at the time of
assignment thereof result in additional cost to the Borrower under subsection
2.14 or 2.15. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision of this
paragraph (c) and paragraph (f) of this subsection to the contrary, the consent
of the Borrower shall not be required for any assignment which occurs at any
time when any of the events described in Section 8 shall have occurred and be
continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
--------
and Commitments of and principal amounts of the Loans of each Type owing to,
each Lender from time to time and the registered owners of the Obligations
evidenced by the Notes. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of a Loan, a Note or other Obligation hereunder as the owner thereof for
all purposes of this Agreement and the other Credit Documents, notwithstanding
any notice to the contrary. Any assignment of any Loan or other obligation
evidenced by a Note shall be effective only upon appropriate entries with
respect thereto being made in the Register. Any assignment or transfer of all
or part of an Obligation evidenced by a Note shall be registered in the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Obligation, duly endorsed by (or accompanied by a written
instrument of assignment or transfer duly executed by) the holder thereof, and
thereupon one or more new Notes shall be issued to the designated Assignee and
the old Note shall be returned by the Administrative Agent to the Borrower
marked "cancelled."
---------
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof (including, without limitation, in the
case of a fund, another fund under common (or affiliated) management therewith),
by the Borrower, the Issuing Lender (with respect to assignments of Revolving
Credit Commitments and Revolving Credit Loans only) and the Syndication Agent)
together with payment by the assigning Lender or the Assignee to the
Administrative Agent of a registration and processing fee of $2,500 (provided
that no such payment shall be required with respect to assignments (y) involving
LCPI as assignor or assignee or (z) assignments to an Assignee which is already
a Lender; provided, further, that with respect to one or more substantially
concurrent assignments by a Lender to an affiliate or affiliates thereof or to
Persons under common (or affiliated) management with such Lender, only one such
fee shall be payable), the Administrative Agent shall (i)
99
<PAGE>
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
----------
subject to the provisions of subsection 10.15, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this subsection 10.6, any interest in this
Agreement or any Loan is transferred to any Transferee which would be a Non-U.S.
Lender upon the effectiveness of such transfer, the assigning Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the assigning Lender (for the benefit of the assigning Lender, the
Administrative Agent and the Borrower) that under applicable law and treaties no
U.S. Taxes will be required to be withheld by the Administrative Agent, the
Borrower or the assigning Lender with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the assigning Lender
(and, in the case of any Assignee registered in the Register, the Administrative
Agent and the Borrower such Internal Revenue Service Forms required to be
furnished pursuant to subsection 2.15(b) and (iii) to agree (for the benefit of
the assigning Lender, the Administrative Agent and the Borrower) to be bound by
the provisions of subsection 2.15(b).
(h) For the avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection and subsection 2.5(h)
concerning assignments of Loans and Notes relate only to absolute assignments
and that such provisions do not prohibit assignments creating security
interests, including, without limitation, (i) any pledge or assignment by a
Lender of any Loan or Note to any Federal Reserve Bank in accordance with
applicable law and (ii) the assignment or pledge by any Lender that is a fund of
all or any portion of its rights under this Agreement to secure such Lender's
Indebtedness; provided that, no such assignment under this clause (h) shall
release the assignor Lender from its obligations hereunder.
(i) On the Effective Date, each of the Lenders party hereto (other
than the Original Lender) shall be deemed to have purchased and accepted from
the Original Lender (and the Original Lender shall be deemed to have so sold and
assigned to each such Lender) a portion of the Original Lender's Commitments and
Loans under the Original Credit Agreement, in each case in the amounts set forth
on Schedule I hereto and without recourse to the Original Lender, each such
purchase and acceptance to be effective when full payment therefor is received
by the Original Lender in immediately available funds. To the extent that any
Lenders choose to consummate the sale of any Loans between them by utilizing the
cash management facilities of the Administrative Agent, (y) such Lenders
authorize and direct the Administrative Agent, upon receipt of the purchase
price for such assignment from the Assignee in immediately available funds, to
promptly remit such amount to the assigning Lender and (z) to the extent such
Lenders have agreed to the payment of any fees from the assigning Lender to the
Assignee in connection with such assignment, such Lenders authorize and direct
the Administrative Agent, upon receipt of such fees from the assigning Lender in
immediately available funds, to promptly remit such amount to the Assignee.
Such Lenders hereby agree to indemnify and hold harmless the Administrative
Agent from and against any and all liabilities,
100
<PAGE>
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in
connection with performing these cash management functions; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
10.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
-------------------- ----------
Lender") shall at any time receive any payment of all or part of its Loans or
- ------
the Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in subsection 8(f),
or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans or
the Reimbursement Obligations owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans or the Reimbursement
Obligations owing to it, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set-
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
10.8 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
101
<PAGE>
10.10 Integration. This Agreement and the other Credit Documents
-----------
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other
Credit Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY
-----------------------------------
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE
BORROWER AT ITS ADDRESS SET FORTH IN SUBSECTION 10.2 OR AT SUCH OTHER
ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO SUE IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED
TO IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
10.13 Acknowledgements. The Borrower hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;
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<PAGE>
(b) none of the Arranger, the Agents and the Lenders has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Credit Documents, and
the relationship between any of the Agents and the Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE ARRANGER,
---------------------
THE LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each Lender agrees to keep confidential all
---------------
non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential (excluding any
such information already in the possession of such Lender or provided to such
Lender by a third party not in violation of this Agreement which, in either
case, is not, to the knowledge of such Lender, subject to a confidentiality
agreement); provided that nothing herein shall prevent any Lender from
disclosing any such information (i) to any Agent or any other Lender or any of
its Affiliates, (ii) to any Transferee or prospective Transferee or to any
direct or indirect contractual counterparties in swap agreements or such
contractual counterparties' professional advisors which receives such
information and agrees to be bound by the confidentiality provisions hereof,
(iii) to its employees, directors, agents, attorneys, accountants and other
professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, (vii) to the National Association of Insurance
Commissioners or any similar organization or any nationally-recognized rating
agency that requires access to information about such Lender's investment
portfolio in connection with ratings issued with respect to such Lender, or
(viii) in connection with the exercise of any remedy hereunder.
10.16 Prudential Note. For the avoidance of doubt, the parties
---------------
hereto hereby agree that the Obligations of the Borrower and the other Credit
Parties hereunder and under the other Credit Documents (including, without
limitation, all Indebtedness of the Borrower hereunder and of the other Credit
Parties (including, without limitation, PHCI) under the Guarantee and Collateral
Agreement) is "Senior Debt," as such term is defined in the Prudential Note.
10.17 Year 2000. The Borrower has reviewed, or will expeditiously
---------
review, its operations and those of its Subsidiaries with a view to assessing
whether its businesses, or the businesses of any of its Subsidiaries, will be
vulnerable to a Year 2000 Problem. The Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all of its Subsidiaries) are able to effectively
process data, including dates before, on and after January 1, 2000, without
experiencing any Year 2000 Problem that could reasonably be expected to cause a
Material Adverse Effect. At the request of the Administrative Agent, the
Borrower will provide the Administrative Agent with assurances and
substantiations
103
<PAGE>
(including, but not limited to, the results of internal or external audit
reports prepared in the ordinary course of business) reasonably acceptable to
the Administrative Agent as to the capability of the Borrower and its
Subsidiaries to conduct its and their businesses and operations before, on and
after January 1, 2000 without experiencing a Year 2000 Problem causing a
Material Adverse Effect. The Borrower represents and warrants that it has a
reasonable basis to believe that no Year 2000 Problem will cause a Material
Adverse Effect.
10.18 Existing Agreements Superseded. As set forth in Section 1.3
------------------------------
hereof, the Original Credit Agreement is superseded by this Credit Agreement,
which has been executed in renewal, amendment, restatement and modification, but
not in extinguishment of, the obligations under the Original Credit Agreement.
[SIGNATURE PAGES FOLLOW]
104
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
P&L Coal Holdings Corporation,
as Borrower
/s/ H.E. Lentz
By:__________________________________
Name: H.E. Lentz
Title: President
Lehman Commercial Paper Inc.,
as a Lender and as Syndication Agent
/s/ Dennis J. Dee
By:__________________________________
Name: Dennis J. Dee
Title: Vice President
Lehman Brothers Inc.,
as Arranger
/s/ Dennis J. Dee
By:__________________________________
Name: Dennis J. Dee
Title: Vice President
The First National Bank of Chicago,
as a Lender and as Administrative Agent
/s/ William V. Clifford
By:__________________________________
Name: William V. Clifford
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
Bank of America National Trust & Savings
Association,
as a Lender and as Documentation Agent
/s/ Daniel Rencricca
By:__________________________________
Name: Daniel Rencricca
Title: Vice President
The Fuji Bank, Limited,
as a Lender and as Documentation Agent
/s/ Teiji Teramoto
By:__________________________________
Name: Teiji Teramoto
Title: Vice President & Manager
<PAGE>
Schedule I
to Credit Agreement
-------------------
[Available from the Administrative Agent]
<PAGE>
Schedule II
to Credit Agreement
-------------------
Pricing Grid
------------
<TABLE>
<CAPTION>
RATIO OF TOTAL TRANCHE A TRANCHE A TRANCHE B TRANCHE B COMMITMENT
DEBT TO TERM TERM TERM LOAN TERM LOAN FEE*
EBITDA LOAN AND LOAN AND APPLICABLE APPLICABLE
REVOLVING REVOLVING MARGIN - MARGIN -
CREDIT CREDIT LIBOR BASE RATE*
FACILITY FACILITY RATE*
APPLICABLE APPLICABLE
MARGIN - MARGIN - BASE
LIBOR RATE*
RATE*
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Greater than or Equal to 4.75X 2.250% 1.250% 2.375% 1.375% .500%
Greater than or Equal to 4.25X 2.000% 1.000% 2.125% 1.125% .500%
Greater than or Equal to 3.75X 1.750% 0.750% 2.000% 1.000% .375%
Less than 3.75X 1.500% 0.500% 2.000% 1.000% .375%
</TABLE>
_________________
* Notwithstanding the foregoing grid: (a) the Applicable Margin for the
Tranche A Term Loan and the Revolving Credit Facility for the 6 months
following the Closing Date will be 1.250% for Base Rate Loans and 2.250%
for LIBOR Loans, (b) the Applicable Margin for the Tranche B Term Loan for
the 6 months following the Closing Date will be 1.375% for Base Rate Loans
and 2.375% for LIBOR Loans and (c) the Commitment Fee rate Revolving Credit
Facility for the 6 months following the Closing Date will be 0.50%.
108
<PAGE>
Schedule III
to the Credit Agreement
-----------------------
Transaction Documents
---------------------
<PAGE>
Schedule IV
to Credit Agreement
-------------------
Coal Act
--------
<TABLE>
<CAPTION>
Fiscal Year Payments
------------- -----------
<S> <C>
1998 $11,802,000
1999 $ 8,300,000
2000 $ 8,100,000
2001 $ 7,800,000
2002 $ 7,500,000
2003 $ 7,000,000
2004 $ 6,600,000
2005 $ 6,900,000
2006 $ 7,200,000
2007 $ 6,700,000
</TABLE>
<PAGE>
Schedule V
----------
to Credit Agreement
-------------------
Black Lung Act
--------------
Fiscal Year Payments
--------------------
<TABLE>
<CAPTION>
<S> <C>
1998 $ 9,334,000
1999 $14,000,000
2000 $15,000,000
2001 $15,400,000
2002 $16,000,000
2003 $15,100,000
2004 $12,400,000
2005 $11,400,000
2006 $11,700,000
2007 $12,000,000
</TABLE>
<PAGE>
Schedule VI
to Credit Agreement
-------------------
Retiree Welfare Benefits
------------------------
<TABLE>
<CAPTION>
Fiscal Year Payments
----------- -----------
<S> <C>
1998 $48,710,000
1999 $53,080,000
2000 $59,037,000
2001 $61,295,000
2002 $63,921,000
2003 $66,080,000
2004 $69,523,000
2005 $71,756,000
2006 $74,440,000
2007 $77,917,000
</TABLE>
<PAGE>
EXHIBIT 10_2
================================================================================
GUARANTEE AND COLLATERAL AGREEMENT
made by
P&L COAL HOLDINGS CORPORATION,
and certain of its Subsidiaries
in favor of
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of May 14, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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SECTION 1. DEFINED TERMS........................................................................... 1
1.1 Definitions............................................................................. 1
1.2 Other Definitional Provisions........................................................... 5
SECTION 2. GUARANTEE............................................................................... 5
2.1 Guarantee............................................................................... 5
2.2 Right of Contribution................................................................... 6
2.3 No Subrogation.......................................................................... 6
2.4 Amendments, etc. with Respect to the Borrower Obligations............................... 6
2.5 Guarantee Absolute and Unconditional.................................................... 7
2.6 Reinstatement........................................................................... 8
2.7 Payments................................................................................ 8
SECTION 3. GRANT OF SECURITY INTEREST.............................................................. 8
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................... 9
4.1 Representations in Credit Agreement..................................................... 9
4.2 Title; No Other Liens................................................................... 9
4.3 Perfected First Priority Liens.......................................................... 9
4.4 Chief Executive Office.................................................................. 10
4.5 Inventory and Equipment................................................................. 10
4.6 Farm Products........................................................................... 10
4.7 Pledged Securities...................................................................... 10
4.8 Receivables............................................................................. 11
4.9 Contracts............................................................................... 11
4.10 Intellectual Property................................................................... 11
4.11 Peabody Minerals Pty. Limited........................................................... 11
SECTION 5. COVENANTS............................................................................... 12
5.1 Covenants in Credit Agreement........................................................... 12
5.2 Delivery of Instruments and Chattel Paper............................................... 12
5.3 Maintenance of Insurance................................................................ 12
5.4 Payment of Obligations.................................................................. 12
5.5 Maintenance of Perfected Security Interest; Further Documentation....................... 12
5.6 Changes in Locations, Name, etc......................................................... 13
5.7 Notices................................................................................. 13
5.8 Pledged Securities...................................................................... 13
5.9 Receivables............................................................................. 14
5.10 Contracts............................................................................... 14
5.11 Peabody Minerals Pty. Limited........................................................... 15
SECTION 6. REMEDIAL PROVISIONS..................................................................... 15
6.1 Certain Matters Relating to Receivables................................................. 15
6.2 Communications with Obligors; Grantors Remain Liable.................................... 16
6.3 Pledged Shares.......................................................................... 16
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6.4 Proceeds to be Turned Over To Administrative Agent......................................... 17
6.5 Application of Proceeds.................................................................... 17
6.6 Code and Other Remedies.................................................................... 17
6.7 Registration Rights........................................................................ 18
6.8 Waiver; Deficiency......................................................................... 19
SECTION 7. THE ADMINISTRATIVE AGENT................................................................... 19
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc................................ 19
7.2 Duty of Administrative Agent............................................................... 20
7.3 Execution of Financing Statements.......................................................... 21
7.4 Authority of Administrative Agent.......................................................... 21
SECTION 8. MISCELLANEOUS.............................................................................. 21
8.1 Amendments in Writing...................................................................... 21
8.2 Notices.................................................................................... 21
8.3 No Waiver by Course of Conduct; Cumulative Remedies........................................ 21
8.4 Enforcement Expenses; Indemnification...................................................... 22
8.5 Successors and Assigns..................................................................... 22
8.6 Set-Off.................................................................................... 22
8.7 Counterparts............................................................................... 23
8.8 Severability............................................................................... 23
8.9 Section Headings........................................................................... 23
8.10 Integration................................................................................ 23
8.11 Governing Law.............................................................................. 23
8.12 Submission To Jurisdiction; Waivers........................................................ 23
8.13 Acknowledgements........................................................................... 24
8.14 WAIVER OF JURY TRIAL....................................................................... 24
8.15 Additional Grantors........................................................................ 24
8.16 Releases................................................................................... 24
8.17 Conflict................................................................................... 25
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<PAGE>
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of May 14, 1998, made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "Grantors"), in favor of Lehman Commercial
--------
Paper Inc. ("LCPI"), as administrative agent (in such capacity, the
----
"Administrative Agent") for the banks and other financial institutions (the
--------------------
"Lenders") from time to time parties to the Credit Agreement, dated as of the
-------
date hereof (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among P&L Coal Holdings Corporation, a Delaware
----------------
corporation (the "Borrower"), the Lenders, LCPI, as documentation agent (in such
--------
capacity, the "Documentation Agent"), LCPI, as syndication agent (in such
-------------------
capacity, the "Syndication Agent"), Lehman Brothers Inc., as arranger (in such
-----------------
capacity, the "Arranger", together with the Documentation Agent, the Syndication
--------
Agent and the Administrative Agent, the "Agents") and the Administrative Agent.
------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses and to finance the costs of the Acquisition;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Administrative Agent for the ratable benefit of the Agents and the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined
-----------
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date hereof are used
herein as so defined: Accounts, Chattel Paper, Documents, Equipment, Farm
Products, Fixtures, Instruments and Inventory.
(b) The following terms shall have the following meanings:
<PAGE>
2
"Agreement": this Guarantee and Collateral Agreement, as the same may
---------
be amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the unpaid
--------------------
principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of the Borrower (including, without
limitation, (i) interest accruing at the then applicable rate provided in
the Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding and (ii) any exposure of any Lender
under any lockbox arrangement, controlled disbursement arrangement,
checking accounts or other similar arrangements (collectively, "Cash
----
Management Agreements") with or on behalf of the Borrower and/or its
---------------------
Subsidiaries) to the Agents or any Lender (or, in the case of any Interest
Rate Agreement referred to below, any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, this Agreement, the other Credit
Documents, any Letter of Credit or any Interest Rate Agreement entered into
by the Borrower with any Lender (or any Affiliate of any Lender) or any
Cash Management Agreement entered into by the Borrower or any Subsidiary of
the Borrower with any Lender or any other document made, delivered or given
in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent and counsel to the Lenders that are
required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"Collateral": as defined in Section 3.
----------
"Collateral Account": any collateral account established by the
------------------
Administrative Agent as provided in Section 6.1 or 6.4.
"Contracts": the contracts and agreements listed on Schedule 7, as
--------- ----------
the same may be amended, supplemented or otherwise modified from time to
time, including, without limitation, (i) all rights of any Grantor to
receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of any Grantor to damages arising thereunder and
(iii) all rights of any Grantor to perform and to exercise all remedies
thereunder.
"Copyrights": (i) all copyrights arising under the laws of the United
----------
States or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished (including, without
limitation, those listed on Schedule 6), all registrations and recordings
----------
thereof, and all applications in connection therewith, including, without
limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor as
------------------
licensor or licensee granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit
and sell materials derived from any Copyright.
"General Intangibles": all "general intangibles" as such term is
-------------------
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in
<PAGE>
3
any event, including, without limitation, with respect to any Grantor, (A)
all partnership interests, member interests and other ownership interests
(other than Pledged Shares) in any Subsidiary of the Borrower (other than
any Citizens Entity and any Subsidiary of a Foreign Subsidiary), including,
without limitation, the partnership interests held by any Grantor in Colony
Bay Coal Company, Patriot Coal Company, L.P. and Peabody Natural Resources
Company and the member interests held by any Grantor in Thoroughbred, LLC
and (B) all contracts, agreements, instruments and indentures in any form,
and portions thereof, to which such Grantor is a party or under which such
Grantor has any right, title or interest or to which such Grantor or any
property of such Grantor is subject, as the same may from time to time be
amended, supplemented or otherwise modified, including, without limitation,
(i) all rights of such Grantor to receive moneys due and to become due to
it thereunder or in connection therewith, (ii) all rights of such Grantor
to damages arising thereunder and (iii) all rights of such Grantor to
perform and to exercise all remedies thereunder, in each case to the extent
the grant by such Grantor of a security interest pursuant to this Agreement
in its right, title and interest in such contract, agreement, instrument or
indenture is not prohibited by such contract, agreement, instrument or
indenture without the consent of any other party thereto, would not give
any other party to such contract, agreement, instrument or indenture the
right to "reopen" certain provisions thereof or to terminate its
obligations thereunder, or is permitted with consent if all necessary
consents to such grant of a security interest have been obtained from the
other parties thereto (it being understood that the foregoing shall not be
deemed to obligate the Borrower to obtain such consents); provided that the
--------
foregoing limitation shall not affect, limit, restrict or impair the grant
by such Grantor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due under any
such agreement, contract, instrument or indenture.
"Guarantor Obligations": with respect to any Guarantor, the
---------------------
collective reference to (i) the Borrower Obligations and (ii) all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement or any other Credit Document to which such
Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent and counsel to the Lenders that are
required to be paid by such Guarantor pursuant to the terms of this
Agreement or any other Credit Document).
"Guarantors": the collective reference to each Grantor other than the
----------
Borrower.
"Intellectual Property": the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property arising under
United States laws, including, without limitation, Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses, and
all rights to sue at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.
"Intercompany Note": any promissory note evidencing loans made by any
-----------------
Grantor to the Borrower or any of its Subsidiaries.
"Interest Rate Agreement": any interest rate swap agreement, interest
-----------------------
rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement.
"Investment Property": means all "certificated securities",
-------------------
"uncertificated securities", "security entitlements", "securities
accounts", "commodity contracts" or "commodity accounts" (as each is
defined in the New York UCC).
<PAGE>
4
"Issuers": the collective reference to each issuer of a Pledged
-------
Security (which shall include, without limitation, each presently existing
or hereinafter acquired or created Subsidiary of the Borrower (other than
any Citizens Entity and any Subsidiary of a Foreign Subsidiary).
"New York UCC": the Uniform Commercial Code as from time to time in
------------
effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
-----------
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States or any
-------
political subdivision thereof, all reissues and extensions thereof and all
goodwill associated therewith, including, without limitation, any of the
foregoing referred to on Schedule 6, (ii) all applications for letters
----------
patent and design letters patent of the United States and all divisions,
continuations and continuations-in-part thereof, including, without
limitation, any of the foregoing referred to on Schedule 6, and (iii) all
----------
rights to obtain any reissues or extensions of the foregoing.
"Patent License": all agreements, whether written or oral, providing
--------------
for the grant by or to any Grantor of any right to manufacture, use or sell
any invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to on Schedule 6.
----------
"Pledged Notes": all promissory notes listed on Schedule 2, all
------------- ----------
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"Pledged Securities": the collective reference to the Pledged Notes
------------------
and the Pledged Shares.
"Pledged Shares": the shares of Capital Stock listed on Schedule 2,
-------------- ----------
whether certificated or uncertificated, all certificates representing such
Capital Stock, and all cash dividends, stock dividends, distributions of
any nature, cash, warrants, options and other rights, property or proceeds
(whether tangible or intangible) and products from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such Capital Stock, together with any other shares, stock
certificates, options or rights of any nature whatsoever in respect of the
Capital Stock of any Person that may be issued or granted to, or held by, a
Grantor while this Agreement is in effect (subject to the provisions of
subsection 6.10(b) of the Credit Agreement).
"Proceeds": all "proceeds" as such term is defined in Section 9-
--------
306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, without limitation, all dividends or
other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or for
----------
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
--------------
<PAGE>
5
"Trademarks": (i) all trademarks, trade names, corporate names,
----------
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States or any State
thereof, or otherwise, and all common-law rights related thereto,
including, without limitation, any of the foregoing referred to on Schedule
--------
6, and (ii) the right to obtain all renewals thereof.
-
"Trademark License": any agreement, whether written or oral,
-----------------
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred to
on Schedule 6.
----------
1.2 Other Definitional Provisions. (a) The words "hereof,"
-----------------------------
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and
---------
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Agents and the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Credit Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent, any other Agent
or any Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from any Borrower
Obligations.
<PAGE>
6
(e) No indefeasible payment made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Administrative Agent or any Lender from the Borrower, any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
release the liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor in respect of
the Borrower Obligations or any payment received or collected from such
Guarantor in respect of the Borrower Obligations), remain liable for the
Borrower Obligations up to the maximum liability of such Guarantor hereunder
until the Borrower Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
---------------------
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent, the other Agents and the Lenders, and
each Guarantor shall remain jointly and severally liable to the Administrative
Agent, the other Agents and the Lenders for the full amount guaranteed by such
Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
--------------
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Administrative Agent, any other Agent or any Lender, no Guarantor shall be
entitled to be subrogated to any of the rights of the Administrative Agent, any
other Agent or any Lender against the Borrower or any other Guarantor or any
collateral security or guarantee or right of offset held by the Administrative
Agent, any other Agent or any Lender for the payment of the Borrower
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Administrative Agent, the other Agents and the Lenders by the Borrower on
account of the Borrower Obligations are paid in full, no Letter of Credit shall
be outstanding and the Commitments are terminated. If any amount shall be paid
to any Guarantor on account of such subrogation rights at any time when all of
the Borrower Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Administrative Agent, the other Agents
and the Lenders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Administrative
Agent in the exact form received by such Guarantor (duly indorsed by such
Guarantor to the Administrative Agent, if required), to be applied against the
Borrower Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
2.4 Amendments, etc. with Respect to the Borrower Obligations. Each
---------------------------------------------------------
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent, any other Agent or any Lender may
be rescinded by the Administrative Agent, such other Agent or such Lender and
any of the Borrower Obligations continued, and the Borrower Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent, any other Agent or any Lender, and the Credit Agreement and the other
Credit Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as the
<PAGE>
7
Administrative Agent (or the Required Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security, guarantee
or right of offset at any time held by the Administrative Agent, any other Agent
or any Lender for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released. None of the Administrative Agent,
any other Agent or any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Borrower
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
------------------------------------
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent, any other Agent or any Lender upon the guarantee contained in this
Section 2 or acceptance of the guarantee contained in this Section 2; the
Borrower Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Section 2; and all dealings
between the Borrower and any of the Guarantors, on the one hand, and the
Administrative Agent, the other Agents and the Lenders, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or any of the Guarantors with respect to the
Borrower Obligations. Each Guarantor understands and agrees that the guarantee
contained in this Section 2 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Credit Agreement or any other Credit Document, any of the
Borrower Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Administrative Agent, any other Agent or any Lender, (b) any defense, set-
off or counterclaim (other than a defense of payment or performance) which may
at any time be available to or be asserted by the Borrower or any other Person
against the Administrative Agent, any other Agent or any Lender, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee contained in this Section
2, in bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Administrative Agent, any other Agent or any Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against the Borrower, any other Guarantor or any other
Person or against any collateral security or guarantee for the Borrower
Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent, any other Agent or any Lender to make any such demand, to
pursue such other rights or remedies or to collect any payments from the
Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent, any other Agent or any Lender
against any Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
-------------
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent, any other
Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or
<PAGE>
8
conservator of, or trustee or similar officer for, the Borrower or any Guarantor
or any substantial part of its property, or otherwise, all as though such
payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
--------
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 3
World Financial Center, New York, New York 10285, Attention: Michelle Swanson,
fax: (212) 526-4911.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative Agent,
and hereby grants to the Administrative Agent, for the ratable benefit of the
Agents and the Lenders, a security interest in all of the following property now
owned or at any time hereafter acquired by such Grantor or in which such Grantor
now has or at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as collateral security for the prompt and
----------
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Contracts;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Instruments;
(i) all Intellectual Property;
(j) all Inventory (including, without limitation, coal);
(k) all Investment Property;
(l) all Pledged Securities;
(m) all Receivables;
(n) all books and records pertaining to the Collateral; and
(o) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing.
<PAGE>
9
Notwithstanding the foregoing, except as permitted by Section 9-318(4) of the
New York UCC, this Agreement shall not constitute an assignment of any Contract,
Pledged Security, General Intangible, Copyright License, Patent License or
Trademark License, or the instruments giving the same, to the extent that, and
only so long as, such Contract, Pledged Security, General Intangible, Copyright
License, Patent License or Trademark License, or the instruments or agreements
giving or governing the same, would prohibit such assignment or would, upon such
assignment or attempted assignment, give any other party to such Contract,
Pledged Security, General Intangible, Copyright License, Patent License or
Trademark License, or the instruments or agreements giving the same, the right
to "reopen" any provision thereof or terminate its obligations thereunder
(unless, in either case, all necessary consents to such assignment have been
obtained from the other parties thereto).
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their respective extensions
of credit to the Borrower thereunder, each Grantor hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Representations in Credit Agreement. In the case of each
-----------------------------------
Guarantor, the representations and warranties set forth in Section 4 of the
Credit Agreement as they relate to such Guarantor or to the other Credit
Documents to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct, and the Administrative
Agent, each other Agent and each Lender shall be entitled to rely on each of
them as if they were fully set forth herein, provided that each reference in
--------
each such representation and warranty to the Borrower's knowledge shall, for the
purposes of this Section 4.1, be deemed to be a reference to such Guarantor's
knowledge.
4.2 Title; No Other Liens. Except for the security interest granted
---------------------
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreement, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others. No
financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any public office, except such as have
been filed in favor of the Administrative Agent, for the ratable benefit of the
Agents and the Lenders, pursuant to this Agreement or as are permitted by the
Credit Agreement.
4.3 Perfected First Priority Liens. The security interests granted
------------------------------
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
----------
referred to on said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Lenders, as collateral security for such Grantor's
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase any Collateral
from such Grantor and (b) are prior to all other Liens on the Collateral in
existence on the date hereof except for unrecorded Liens and other Liens
permitted by the Credit Agreement which have priority over the Liens on the
Collateral by operation of law. Without limiting the foregoing, to the extent
the Collateral pledged by the Borrower and the Grantor to the Administrative
Agent on behalf of the Lenders constitutes partnership interests, member
interests and other ownership interests which are uncertificated, the recording
of the security interests on the relevant partnership agreement, member
agreement or other governing document pursuant to subsection 5.5(d) and the
filing of appropriate financing statements and continuation statements will
perfect and establish the first priority Lien and security interest in such
Collateral hereunder in favor of the Administrative Agent on behalf of the
Agents and the Lenders.
<PAGE>
10
4.4 Chief Executive Office. On the date such Grantor became a party
----------------------
to this Agreement, such Grantor's jurisdiction of organization and the location
of such Grantor's chief executive office or sole place of business are specified
on Schedule 4.
----------
4.5 Inventory and Equipment. On the date such Grantor became a party
-----------------------
to this Agreement, the Inventory and the Equipment of such Grantor (other than
mobile goods) are kept at the locations listed on Schedule 5.
----------
4.6 Farm Products. None of the Collateral constitutes, or is the
-------------
Proceeds of, Farm Products.
4.7 Pledged Securities. (a) The Pledged Shares pledged by such
------------------
Grantor hereunder constitute all (or in the case of an Issuer that is a Foreign
Subsidiary, 65%) of the issued and outstanding shares of all classes of the
Capital Stock of each Issuer owned by such Grantor.
(b) All the shares of the Pledged Shares have been duly and validly
issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. The Pledged Notes pledged by
such Grantor hereunder constitute the only promissory notes of any Issuer in
favor of such Grantor.
(d) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement and other Liens expressly
permitted by subsection 7.3(a) of the Credit Agreement.
(e) Such Grantor has delivered to the Administrative Agent all
certificates evidencing Pledged Shares, duly indorsed by such Grantor to the
Administrative Agent, if required, together with undated stock powers covering
each such certificate duly executed in blank by such Grantor. No shares, units
and other securities constituting the Pledged Shares were issued in violation of
the preemptive rights of any Person or of any agreement by which Grantor or the
Issuer thereof is bound. All documentary, stamp or other taxes or fees owing in
connection with the issuance, transfer or pledge of Pledged Shares (or rights in
respect thereof) have been paid. No restrictions or conditions exist with
respect to the transfer or voting of any Pledged Shares.
(f) Such Grantor has delivered to the Administrative Agent originals
of all Pledged Notes, duly indorsed by such Grantor to the Administrative Agent,
if required, together with undated note powers or instruments of assignment
covering each such Pledged Note executed in blank by such Grantor and with, if
the Administrative Agent has so requested, signature guaranteed.
4.8 Receivables. (a) Except for (i) the Tennessee Valley Authority,
-----------
(ii) federal tax refunds and (iii) Receivables which are not in the aggregate
material to the Borrower and its Restricted Subsidiaries taken as a whole, none
of the obligors on any Receivables is a Governmental Authority.
(b) The amounts represented by such Grantor to the Lenders from time
to time as owing to such Grantor in respect of the Receivables will at such
times be accurate.
<PAGE>
11
4.9 Contracts. (a) Each Contract (and each other contract,
---------
agreement, instrument and indenture included in the Collateral (the "Additional
----------
Contracts")) is in full force and effect and constitutes a valid and legally
- ---------
enforceable obligation of the parties thereto, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(b) No consent or authorization of, filing with or other act by or in
respect of any Governmental Authority is required in connection with the
execution, delivery, performance, validity or enforceability of any of the
Contracts or Additional Contracts by any party thereto other than those which
have been duly obtained, made or performed, are in full force and effect and do
not subject the scope of any such Contract to any material adverse limitation,
either specific or general in nature.
(c) Neither such Grantor nor (to the best of such Grantor's
knowledge) any of the other parties to the Contracts or Additional Contracts is
in default in the performance or observance of any of the terms thereof in any
manner that, in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(d) The right, title and interest of such Grantor in, to and under
the Contracts and the Additional Contracts are not subject to any defenses,
offsets, counterclaims or claims that, in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(e) Such Grantor has delivered to the Administrative Agent a complete
and correct copy of each Contract and Additional Contract, including all
amendments, supplements and other modifications thereto.
(f) No amount payable to such Grantor under or in connection with any
Contract or Additional Contract is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent.
4.10 Intellectual Property. Neither the Borrower nor any Grantor
---------------------
owns any Intellectual Property which is, in the aggregate, material to the
Borrower and its Restricted Subsidiaries, taken as a whole.
4.11 Peabody Minerals Pty. Limited. Peabody Minerals Pty. Limited has
-----------------------------
no material assets or liabilities and conducts no business.
<PAGE>
12
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and
the Lenders that, from and after the date of this Agreement until the
Obligations shall have been paid in full, no Letter of Credit shall be
outstanding and the Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each Guarantor,
-----------------------------
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is caused by the failure to take such action
or to refrain from taking such action by such Guarantor or any of its
Subsidiaries.
5.2 Delivery of Instruments and Chattel Paper. If any amount payable
-----------------------------------------
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be
immediately delivered to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral pursuant to
this Agreement.
5.3 Maintenance of Insurance. Such Grantor will maintain insurance
------------------------
in accordance with subsection 6.5 of the Credit Agreement.
5.4 Payment of Obligations. Such Grantor will pay and discharge or
----------------------
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all claims of any kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the Collateral, except that
no such charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.5 Maintenance of Perfected Security Interest; Further
---------------------------------------------------
Documentation. (a) Such Grantor shall maintain the security interest created
- -------------
by this Agreement as a perfected security interest having at least the priority
described in Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Administrative Agent and the
Lenders from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of such Grantor, such Grantor
will promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby.
(d) With respect to any partnership, member or other ownership
interests included in the Collateral pledged hereunder, the applicable Grantor
will cause the Issuer thereof to mark the relevant
<PAGE>
13
partnership agreement, member agreement or other governing document with a
legend indicating the Administrative Agent's security interest in such
Collateral and prohibiting the transfer thereof except in a manner not in
violation of the provisions of this Agreement and the Credit Agreement.
5.6 Changes in Locations, Name, etc. Such Grantor will not, except
--------------------------------
upon 30 days' prior written notice to the Administrative Agent and delivery to
the Administrative Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to Schedule 5 showing any additional
----------
location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 5;
----------
(ii) change the location of its chief executive office or sole place
of business from that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become misleading.
5.7 Notices. Such Grantor will advise the Administrative Agent and
-------
the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the Administrative Agent to realize on the
Collateral or otherwise exercise any of its remedies hereunder; and
(b) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.8 Pledged Securities. (a) If such Grantor shall become entitled
------------------
to receive or shall receive any stock certificate (including, without
limitation, any certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer (subject to the provisions of
subsection 6.10(b) of the Credit Agreement), whether in addition to, in
substitution of, as a conversion of, or in exchange for, any of the Pledged
Shares, or otherwise in respect thereof, such Grantor shall accept the same as
the agent of the Administrative Agent, the other Agents and the Lenders, hold
the same in trust for the Administrative Agent, the other Agents and the Lenders
and deliver the same forthwith to the Administrative Agent in the exact form
received, duly indorsed by such Grantor to the Administrative Agent, if
required, together with an undated stock power covering such certificate duly
executed in blank by such Grantor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Pledged Securities upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent to be
held by it hereunder as additional collateral security for the Obligations, and
in case any distribution of capital shall be made on or in respect of the
Pledged Securities or any property shall be distributed upon or with respect to
the Pledged Securities pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security
interest in favor of the Administrative Agent, be delivered to the
Administrative
<PAGE>
14
Agent to be held by it hereunder as additional collateral security for the
Obligations. Except as provided in the Credit Agreement, if any sums of money
or property so paid or distributed in respect of the Pledged Securities shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the Administrative Agent, hold such money or property in
trust for the Agents and the Lenders, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
(b) Except as provided in the Credit Agreement, without the prior
written consent of the Administrative Agent, such Grantor will not (i) vote to
enable, or take any other action to permit, any Issuer to issue any stock or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Pledged Securities or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreement), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Pledged Securities or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of such Grantor or
the Administrative Agent to sell, assign or transfer any of the Pledged
Securities or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.8(a) with respect to the Pledged Securities issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
------- --------
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Pledged Securities issued by it.
5.9 Receivables. (a) Other than in the ordinary course of business
-----------
consistent with its past practices, such Grantor shall not (i) grant any
extension of the time of payment of any Receivable, (ii) compromise or settle
any Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or
modify any Receivable in any manner that could adversely affect the value
thereof.
(b) Such Grantor will deliver to the Administrative Agent a copy of
each material demand, notice or document received by it that questions or calls
into doubt the validity or enforceability of more than 5% of the aggregate
amount of the then outstanding Receivables.
5.10 Contracts. (a) Such Grantor will maintain its Coal Supply
---------
Agreements in compliance with the requirements of subsection 6.19 of the Credit
Agreement. With respect to Contracts or Additional Contracts that are not Coal
Supply Agreements, such Grantor will perform and comply in all material respects
with all its obligations under such Contracts and Additional Contracts.
(b) With respect to Contracts or Additional Contracts that are not
Coal Supply Agreements, such Grantor will not amend, modify, terminate or waive
any provision of any such material Contract or Additional Contract in any manner
which could reasonably be expected to materially adversely affect the value of
such material Contract or Additional Contract as Collateral.
(c) With respect to Contracts or Additional Contracts that are not
Coal Supply Agreements, such Grantor will exercise promptly and diligently each
and every material right which it may have under each such Contract or
Additional Contract (other than any right of termination).
<PAGE>
15
(d) Such Grantor will deliver to the Administrative Agent a copy of
each material demand, notice or document received by it relating in any way to
any Contract or Additional Contract that questions the validity or
enforceability of such Contract or Additional Contract. Such Grantor will
notify the Administrative Agent immediately upon learning of any default by any
party (including, without limitation, the Grantor) under any Contract or
Additional Contract.
5.11 Peabody Minerals Pty. Limited. The Borrower will ensure that
-----------------------------
the representation and warranty set forth in subsection 4.11 hereof remains true
and correct at all times after the Closing Date, unless and until Peabody
Minerals Pty. Limited is no longer a Subsidiary of the Borrower.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) Following the
---------------------------------------
occurrence and during the continuance of an Event of Default, the Administrative
Agent shall have the right to make test verifications of the Receivables in any
manner and through any medium that it reasonably considers advisable, and each
Grantor shall furnish all such assistance and information as the Administrative
Agent may require in connection with such test verifications. At any time and
from time to time following the occurrence and during the continuance of an
Event of Default, upon the Administrative Agent's reasonable request and at the
expense of the relevant Grantor, such Grantor shall cause independent public
accountants or others reasonably satisfactory to the Administrative Agent to
furnish to the Administrative Agent reports showing reconciliations, aging and
test verifications of, and trial balances for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to
collect such Grantor's Receivables, provided that the Administrative Agent may
--------
curtail or terminate said authority or require that such authority be subject to
the Administrative Agent's direct control, at any time after the occurrence and
during the continuance of an Event of Default. If required by the
Administrative Agent at any time after the occurrence and during the continuance
of an Event of Default, any payments of Receivables, when collected by any
Grantor, (i) shall be forthwith (and, in any event, within two Business Days)
deposited by such Grantor in the exact form received, duly indorsed by such
Grantor to the Administrative Agent if required, in a Collateral Account
maintained under the sole dominion and control of the Administrative Agent,
subject to withdrawal by the Administrative Agent for the account of the Agents
and the Lenders only as provided in Section 65, and (ii) until so turned over,
shall be held by such Grantor in trust for the Administrative Agent, the other
Agents and the Lenders, segregated from other funds of such Grantor. Each such
deposit of Proceeds of Receivables shall be accompanied by a report identifying
in reasonable detail the nature and source of the payments included in the
deposit.
(c) At the Administrative Agent's reasonable request at any time
after the occurrence and during the continuance of an Event of Default, each
Grantor shall deliver to the Administrative Agent all original and other
documents evidencing, and relating to, the agreements and transactions which
gave rise to the Receivables, including, without limitation, all original
orders, invoices and shipping receipts.
6.2 Communications with Obligors; Grantors Remain Liable. (a) The
----------------------------------------------------
Administrative Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default and after
giving notice to the relevant Grantor, communicate with obligors under the
Receivables and parties to the Contracts and Additional Contracts to verify with
them to the Administrative Agent's satisfaction the existence, amount and terms
of any Receivables or Contracts.
<PAGE>
16
(b) Upon the request of the Administrative Agent at any time after
the occurrence and during the continuance of an Event of Default, each Grantor
shall notify obligors on the Receivables and parties to the Contracts and
Additional Contracts that the Receivables and the Contracts and Additional
Contracts have been assigned to the Administrative Agent for the ratable benefit
of the Lenders and that payments in respect thereof shall be made directly to
the Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables, Contracts and Additional
Contracts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise thereto. Neither the Administrative Agent nor any Lender
shall have any obligation or liability under any Receivable (or any agreement
giving rise thereto), Contract or Additional Contract by reason of or arising
out of this Agreement or the receipt by the Administrative Agent or any Lender
of any payment relating thereto, nor shall the Administrative Agent or any
Lender be obligated in any manner to perform any of the obligations of any
Grantor under or pursuant to any Receivable (or any agreement giving rise
thereto), Contract or Additional Contract to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
6.3 Pledged Shares. (a) Unless an Event of Default shall have
--------------
occurred and be continuing and the Administrative Agent shall have given notice
to the relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Shares and all
payments made in respect of the Pledged Notes, in each case paid in the normal
course of business of the relevant Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
corporate rights with respect to the Pledged Securities; provided, however, that
-------- -------
no vote shall be cast or corporate right exercised or other action taken which,
in the Administrative Agent's reasonable judgment, would materially impair the
Collateral or which would result in any violation of any provision of the Credit
Agreement, this Agreement or any other Credit Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and (ii)
any or all of the Pledged Securities may be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (x) all voting, corporate and other rights pertaining to
such Pledged Securities at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Securities upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of any Issuer, or upon the
exercise by any Grantor or the Administrative Agent of any right, privilege or
option pertaining to such Pledged Securities, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Securities with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it, but
the Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
<PAGE>
17
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative Agent. In addition
--------------------------------------------------
to the rights of the Administrative Agent, the other Agents and the Lenders
specified in Section 6.1 with respect to payments of Receivables, if an Event of
Default shall occur and be continuing, all Proceeds received by any Grantor
consisting of cash and checks shall be held by such Grantor in trust for the
Administrative Agent, the Agents and the Lenders, segregated from other funds of
such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over
to the Administrative Agent in the exact form received by such Grantor (duly
indorsed by such Grantor to the Administrative Agent, if required). All
Proceeds received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a Collateral Account maintained under its sole dominion
and control. All Proceeds while held by the Administrative Agent in a
Collateral Account (or by such Grantor in trust for the Administrative Agent and
the Lenders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in Section 65.
6.5 Application of Proceeds. At such intervals as may be agreed upon
-----------------------
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in such order as required
by the Credit Agreement, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall occur and
-----------------------
be continuing, the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Lender shall
have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Administrative Agent's request, to assemble the
<PAGE>
18
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Grantor's premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any
action taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Administrative Agent, the other Agents and
the Lenders hereunder, including, without limitation, reasonable attorneys' fees
and disbursements, to the payment in whole or in part of the Obligations, in
such order as the Administrative Agent may elect, and only after such
application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the New York UCC, need the Administrative Agent account for the
surplus, if any, to any Grantor. To the extent permitted by applicable law,
each Grantor waives all claims, damages and demands it may acquire against the
Administrative Agent, the other Agents or any Lender arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 15 days before such sale or other
disposition.
6.7 Registration Rights. (a) If the Administrative Agent shall
-------------------
determine to exercise its right to sell any or all of the Pledged Shares
pursuant to Section 6.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Shares, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Shares, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its commercially reasonable efforts
to cause the registration statement relating thereto to become effective and to
remain effective for a period of one year from the date of the first public
offering of the Pledged Shares, or that portion thereof to be sold, and (iii)
make all amendments thereto and/or to the related prospectus which, in the
opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. Each
Grantor agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Shares, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Shares for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its commercially reasonable efforts to
do or cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Shares pursuant to this Section
6.7 valid and binding and in compliance with any and all other
<PAGE>
19
applicable Requirements of Law. Each Grantor further agrees that a breach of any
of the covenants contained in this Section 6.7 will cause irreparable injury to
the Administrative Agent and the Lenders, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 6.7 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not to assert
------------------
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Grantor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a)
-----------------------------------------------------------
Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Administrative Agent the power and right, on behalf of
such Grantor, without assent by such Grantor, to do any or all of the following:
(i) upon the occurrence and during the continuance of an Event of
Default and after notice to the applicable Grantor, in the name of such
Grantor or its own name, or otherwise, take possession of and indorse and
collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any Receivable or any Contract or Additional
Contract included in the Collateral or with respect to any other Collateral
and file any claim or take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the Administrative Agent
for the purpose of collecting any and all such moneys due under any
Receivable or any Contract or Additional Contract or with respect to any
other Collateral whenever payable;
(ii) in the case of any Intellectual Property included in the
Collateral, execute and deliver, and have recorded, any and all agreements,
instruments, documents and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's and the Lenders'
security interest in such Intellectual Property and the goodwill and
general intangibles of such Grantor relating thereto or represented
thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section
6.6 or 6.7, any indorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral; and
<PAGE>
20
(v) upon the occurrence and during the continuance of an Event of
Default and after notice to the applicable Grantor (1) direct any party
liable for any payment under any of the Collateral to make payment of any
and all moneys due or to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall direct; (2) ask
or demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral; (3) sign and indorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices and
other documents in connection with any of the Collateral; (4) commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any portion
thereof and to enforce any other right in respect of any Collateral; (5)
defend any suit, action or proceeding brought against such Grantor with
respect to any Collateral; (6) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such discharges or
releases as the Administrative Agent may reasonably deem appropriate; (7)
assign any Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Copyright, Patent or Trademark pertains),
throughout the world for such term or terms, on such conditions, and in
such manner, as the Administrative Agent shall in its sole discretion
determine; and (8) generally, sell, transfer, pledge and make any agreement
with respect to or otherwise deal with any of the Collateral as fully and
completely as though the Administrative Agent were the absolute owner
thereof for all purposes, and do, at the Administrative Agent's option and
such Grantor's expense, at any time, or from time to time, all acts and
things which the Administrative Agent deems necessary to protect, preserve
or realize upon the Collateral and the Administrative Agent's and the
Lenders' security interests therein and to effect the intent of this
Agreement, all as fully and effectively as such Grantor might do.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due Base Rate Loans under the Credit Agreement, from the
date of payment by the Administrative Agent to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Administrative Agent
on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 Duty of Administrative Agent. The Administrative Agent's sole
----------------------------
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent, the other Agents and the Lenders
hereunder are solely to protect the Administrative Agent's, the other Agents',
and the Lenders' interests in the Collateral and shall
<PAGE>
21
not impose any duty upon the Administrative Agent or any Lender to exercise any
such powers. The Administrative Agent, the other Agents and the Lenders shall
be accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to Section 9-402 of
---------------------------------
the New York UCC and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements (including, without
limitation, fixture filings) and other filing or recording documents or
instruments with respect to the Collateral without the signature of such Grantor
(but with subsequent notice to such Grantor) in such form and in such offices as
the Administrative Agent reasonably determines appropriate to perfect the
security interests of the Administrative Agent under this Agreement. A
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for
filing or recording in any jurisdiction.
7.4 Authority of Administrative Agent. Each Grantor acknowledges
---------------------------------
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Grantors, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
---------------------
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with subsection 10.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the Agents
-------
or any Grantor hereunder shall be effected in the manner provided for in
subsection 10.2 of the Credit Agreement; provided that any such notice, request
--------
or demand to or upon any Guarantor shall be addressed to such Grantor at its
notice address set forth on Schedule 1.
----------
8.3 No Waiver by Course of Conduct; Cumulative Remedies. None of the
---------------------------------------------------
Administrative Agent, any other Agent or any Lender shall by any act (except by
a written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Administrative Agent, any other Agent or
any Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent,
any other Agent or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, such other Agent or such Lender would otherwise have on
any future occasion. The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
<PAGE>
22
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor
-------------------------------------
agrees to pay or reimburse each Lender and each Agent for all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Credit Documents to which such Guarantor is a
party, including, without limitation, the fees and disbursements of counsel to
each Lender and of counsel to the Administrative Agent and the other Agents.
(b) Each Guarantor agrees to pay, and to save the Administrative
Agent, the other Agents and the Lenders harmless from, any and all liabilities
with respect to, or resulting from any delay in paying, any and all stamp,
excise, sales or other taxes which may be payable or determined to be payable
with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative
Agent, the other Agents and the Lenders harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to
subsection 10.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Credit Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon the
----------------------
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent, the other Agents and the Lenders and their successors and
assigns; provided that no Grantor may assign, transfer or delegate any of its
--------
rights or obligations under this Agreement without the prior written consent of
the Administrative Agent and the Syndication Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
-------
Administrative Agent, each other Agent and each Lender at any time and from time
to time pursuant to subsection 10.7(a) of the Credit Agreement, without notice
to such Grantor or any other Grantor, any such notice being expressly waived by
each Grantor, to set-off and appropriate and apply any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Administrative Agent or such Lender to or for the credit or
the account of such Grantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of the
Obligations and liabilities of such Grantor to the Administrative Agent, such
other Agent or such Lender hereunder then due and owing and claims of every
nature and description of the Administrative Agent, such other Agent or such
Lender against such Grantor then due and owing, in any currency, whether arising
hereunder, under the Credit Agreement, any other Credit Document or otherwise,
as the Administrative Agent, such other Agent or such Lender may elect, whether
or not the Administrative Agent, any other Agent or any Lender has made any
demand for payment and although such Obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent, each other Agent and each
Lender shall notify such Grantor promptly of any such set-off and the
application made by the Administrative Agent, such other Agent or such Lender of
the proceeds thereof, provided that the failure to give such notice shall not
--------
affect the validity of such set-off and application. The rights of the
Administrative Agent, each other Agent and each Lender under this Section 8.6
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Administrative Agent, such other Agent or
such Lender may have.
<PAGE>
23
8.7 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction with respect to any of the
Grantors shall, as to such jurisdiction and such Grantor, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof with respect to such Grantor or any of the other
Grantors, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction
or with respect to any of the other Grantors in any jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement
----------------
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Credit Documents
-----------
represent the agreement of the Grantors, the Administrative Agent, the other
Agents and the Lenders with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent, the other Agents or any Lender relative to subject matter
hereof and thereof not expressly set forth or referred to herein or in the other
Credit Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
<PAGE>
24
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) None of the Administrative Agent, any other Agent or any Lender
has any fiduciary relationship with or duty to any Grantor arising out of
or in connection with this Agreement or any of the other Credit Documents,
and the relationship between the Grantors, on the one hand, and the
Administrative Agent, the other Agents and the Lenders, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Grantors and the Lenders.
8.14 WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ACCEPTANCE OF THE
--------------------
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the Borrower that is
-------------------
required to become a party to this Agreement pursuant to subsection 6.10 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.16 Releases. (a) At such time as the Loans, the Reimbursement
--------
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors and the
Administrative Agent shall deliver to such Grantor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement
(including, without limitation, the designation of a Credit Party as an
Unrestricted Subsidiary as permitted thereunder), then the Administrative Agent,
at the request and sole expense of such Grantor, shall execute and deliver to
such Grantor all releases or other documents reasonably necessary for the
release of the Liens created hereby on such Collateral. At the request and sole
expense of the Borrower, a Guarantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such Guarantor shall be
sold, transferred or otherwise disposed of in a transaction permitted by the
Credit Agreement (including, without limitation, the designation of such
Guarantor as an Unrestricted Subsidiary as permitted thereunder).
(c) If at any time the Capital Stock of any Unrestricted Subsidiary
pledged hereunder is to be pledged instead as security for the obligations of
any such Unrestricted Subsidiary under any Non-Recourse Debt, the Administrative
Agent, at the request and sole expense of the applicable Grantor, shall execute
and deliver to such Grantor all releases and other documents reasonably
necessary for the release
<PAGE>
25
of the Liens created hereby on such Collateral and shall deliver the
certificates (if any) representing such Capital Stock to the applicable Grantor.
8.17 Conflict. In the event there is a conflict between the terms of
--------
this Agreement and the Credit Agreement, the Credit Agreement shall control.
[SIGNATURE PAGES FOLLOW]
<PAGE>
26
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
and Collateral Agreement to be duly executed and delivered as of the date first
above written.
P&L COAL HOLDINGS CORPORATION,
a Delaware corporation
/s/ Henry E. Lentz
By:___________________________
Name: Henry E. Lentz
Title:
Accepted on behalf of the Agents
and the Lenders as of the date first
above written
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
/s/ William J. Gallagher
By: _______________________________
Name: William J. Gallagher
Title: Authorized Signatory
<PAGE>
Schedule 1
----------
NOTICE ADDRESSES OF GRANTORS
<PAGE>
Schedule 2
----------
DESCRIPTION OF PLEDGED SECURITIES
PLEDGED CAPITAL STOCK:
Issuer Class of Stock Stock Certificate No. No. of Shares
--------- ------------------ ------------------------- ------------------
PLEDGED NOTES:
Issuer Payee Principal Amount
----------------------- --------------- ------------------------------
MEMBER INTERESTS:
Issuer Certificate No. No. of Interests
----------------------- ----------------- ------------------------------
<PAGE>
Schedule 3
----------
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings (including fixture filings)
-----------------------------------------------------------
[List each office where a financing statement is to be filed]
Patent and Trademark Filings
----------------------------
[List all filings]
Actions with respect to Pledged Shares
--------------------------------------
Other Actions
-------------
[Describe other actions to be taken]
<PAGE>
Schedule 4
----------
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Location
------- --------
<PAGE>
Schedule 5
----------
LOCATION OF INVENTORY AND EQUIPMENT
Grantor Locations
------- ---------
<PAGE>
Schedule 6
----------
COPYRIGHTS AND COPYRIGHT LICENSES
None.
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
<PAGE>
Schedule 7
----------
CONTRACTS
<PAGE>
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Guarantee
and Collateral Agreement dated as of ______________ ___, 1998 (the "Agreement"),
---------
made by the Grantors parties thereto for the benefit of Lehman Brothers
Commercial Paper Inc., as Administrative Agent. The undersigned agrees for the
benefit of the Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.8(a) of
the Agreement.
3. The terms of Sections 5.5(d), 6.3 and 6.7 of the Agreement shall
apply to it, mutatis mutandis, with respect to all actions that may be required
------- --------
of it pursuant to Section 5.5(d), 6.3 or 6.7 of the Agreement.
[NAME OF ISSUER]
By________________________________________________
Title_____________________________________________
Address for Notices:
__________________________________________________
__________________________________________________
Fax:______________________________________________
<PAGE>
Annex 1 to
Guarantee and Collateral Agreement
----------------------------------
ASSUMPTION AGREEMENT, dated as of ________________, 199_, made by
_______________________, a ______________ corporation (the "Additional
----------
Grantor"), in favor of Lehman Commercial Paper Inc., as administrative agent (in
- -------
such capacity, the "Administrative Agent") for the other Agents and the banks
--------------------
and other financial institutions (the "Lenders") parties to the Credit Agreement
-------
referred to below. All capitalized terms not defined herein shall have the
meaning ascribed to them in such Credit Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, P&L Coal Holdings Corporation, a Delaware corporation (the
"Borrower"), the Lenders, Lehman Commercial Paper Inc. ("LCPI"), as
-------- ----
Documentation Agent, LCPI, as Syndication Agent, Lehman Brothers Inc., as
Arranger, and the Administrative Agent have entered into a Credit Agreement,
dated as of _____________ __, 1998, (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement");
----------------
WHEREAS, in connection with the Credit Agreement, the Borrower and
certain of its Subsidiaries (other than the Additional Grantor) have entered
into the Guarantee and Collateral Agreement, dated as of _______ __, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
---------
and Collateral Agreement") in favor of the Administrative Agent for the benefit
- ------------------------
of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering
----------------------------------
this Assumption Agreement, the Additional Grantor, as provided in Section 8.15
of the Guarantee and Collateral Agreement, hereby becomes a party to the
Guarantee and Collateral Agreement as a Grantor thereunder with the same force
and effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedules ____________*
to the Guarantee and Collateral Agreement. The Additional Grantor hereby
represents and warrants that each of the representations and warranties
contained in Section 4 of the Guarantee and Collateral Agreement is true and
correct on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.
________________________________
* Refer to each Schedule which needs to be supplemented.
<PAGE>
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
-------------
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:________________________________
Name:
Title:
<PAGE>
EXHIBIT 10.3
United States Department of the Interior
In Reply Refer To:
BUREAU OF LAND MANAGEMENT
Wyoming State Office 3452
P.O. Box 1828 WYW0321779
Cheyenne, Wyoming 82003-1828 (921MLove)
PHONE NO: 307-775-6258
FAX NO: 307-775-6203
D E C I S I O N
Powder River Coal Company :
Attn: Victor E. Garber : Federal Coal Lease
Caller Box 3034 : North Antelope/Rochelle Mine
Gillette, Wyoming 82717-3034 :
Partial Relinquishment Accepted
-------------------------------
On February 17, 1998, we received a partial relinquishment of Federal coal lease
WYW0321779 as to the following lands:
T. 41 N., R. 70 W., 6th P.M., Wyoming
Sec. 3: Lots 17 (S2), 18, 19, 20 (W2);
Sec. 10: Lots 1-10;
Sec. 11: Lots 2 (W2), 3-6, 7 (W2), 12.
Containing 758.875 acres, more or less.
The Casper District Office has determined that the public interest shall not be
impaired by acceptance of the relinquishment, as maximum economic recovery of
the recoverable resource shall be achieved and adequate reclamation has occurred
in accordance with the policy outlined in Instruction Memorandum No. WY-98-35.
That office has recommended that the partial relinquishment be accepted.
Therefore, the partial relinquishment of Federal coal lease WYW0321779 is hereby
accepted effective February 17, 1998, the date the relinquishment was filed.
Acceptance of this partial relinquishment does not relieve Powder River Coal
Company, or its successors, from complying with the reclamation requirements of
30 CFR Chapter VII, Subchapter K, or an approved State program. (43 CFR 3480.0-
6(d)(8))
<PAGE>
The following-described lands are remaining in Federal coal lease WYW0321779:
T. 41 N., R. 69 W., 6th P.M., Wyoming
Sec. 6: Lots 8-23;
Sec. 7: Lots 5-12, 14-19;
Sec. 18: Lots 6, 7, 10, 11;
T. 42 N., R. 69 W., 6th P.M., Wyoming
Sec. 19: Lots 8, 13, 14;
Sec. 30: Lots 8-20;
Sec. 31: Lots 5-20;
T. 41 N., R. 70 W., 6th P.M., Wyoming
Sec. 1: Lots 5-7, 10-15, 17-20;
Sec. 2: Lots 17-20;
Sec. 3: Lots 17 (N2), 20 (E2);
Sec. 11: Lots 1, 2 (E2), 7 (E2), 8, 9;
Sec. 12: Lots 1-14, 16;
T. 42 N., R. 70 W., 6th P.M., Wyoming
Sec. 13: Lots 13-16
Sec. 14: Lots 9-16;
Sec. 15: Lots 9-16;
Sec. 22: Lots 1, 2, 7, 8;
Sec. 23: Lots 1-16;
Sec. 24: Lots 1-16;
Sec. 25: Lots 1-16;
Sec. 26: Lots 1, 2, 7, 8.
Containing 7,286.745 acres, more or less.
Attached to this Decision is an acreage calculation worksheet, which lists the
acreage amounts for the lands remaining in the lease.
The new rental amount due each year for this lease beginning December 1, 1998,
will be $21,861.00.
If you have any questions concerning this matter, please contact Mavis Love in
the Minerals and Lands Authorization Group at 307-775-6258.
Alan R. Pierson
State Director
Attachment
cc:
Department of Environmental Quality, Land Quality Division,
122 West 25th Street, Cheyenne, WY 82002
Department of Environmental Quality, Land Quality Division,
Attn: Bob Giurgevich, 1043 Coffeen Avenue, Suite D,
<PAGE>
Sheridan, WY 82801
Office of Surface Mining, Attn: Mr. Peter Rutledge, Western
Regional Coordinating Center, 1999 Broadway, Suite 3320,
Denver, CO 80202-5733
MMS, REP, Reporting & Valuation Division, Solid Minerals
Reporting Staff, P.O. Box 5760, MS3153, Denver CO 80217
WO (320), Room 501, LS
DM, Casper
<PAGE>
ACREAGE CALCULATIONS FOR LANDS REMAINING IN
FEDERAL COAL LEASE WYW0321779
AFTER ACCEPTANCE OF PARTIAL RELINQUISHMENT
EFFECTIVE FEBRUARY 17, 1998
T. 41 N., R. 69 W., 6th P.M., Wyoming
- -------------------------------------
Sec. 6: Lots 8-23 649.410
Sec. 7: Lots 5-12, 14-19 559.850
Sec. 18: Lots 6, 7, 10, 11 160.770
T. 42 N., R. 69 W., 6th P.M. Wyoming
- ------------------------------------
Sec. 19: Lots 8, 13, 14 120.540
Sec. 30: Lots 8-20 529.050
Sec. 31: Lots 5-20 657.650
T. 41 N., R. 70 W., 6th P.M. Wyoming
- ---------------------------------------
Sec. 1: Lots 5-7, 10-15, 17-20 525.800
Sec. 2: Lots 17-20 157.520
Sec. 3: Lot 17 (N2) 19.425
Lot 20 (E2) 19.150
Sec. 11: Lot 1 40.590
Lot 2 (E2) 20.285
Lot 7 (E2) 20.215
Lot 8 40.450
Lot 9 40.350
Sec. 12: Lots 1-14, 16 608.870
T. 42 N., R. 70 W., 6th P.M. Wyoming
- ------------------------------------
Sec. 13: Lots 13-16; 162.990
Sec. 14: Lots 9-16 326.480
Sec. 15: Lots 9-16 332.010
Sec. 22: Lots 1, 2, 7, 8 164.540
Sec. 23: Lots 1-16 653.520
Sec. 24: Lots 1-16 651.400
Sec. 25: Lots 1-16 660.410
Sec. 26: Lots 1, 2, 7, 8 165.470
TOTAL ACREAGE 7,286.745
<PAGE>
Serial Number
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT WYW0321779
Date Lease Issued
COAL LEASE READJUSTMENT
12-01-66
- --------------------------------------------------------------------------------
PART 1: LEASE RIGHTS GRANTED
This lease, entered into by and between the United States of America,
hereinafter called the lessor, through the Bureau of Land Management, and (Name
and Address)
Powder River Coal Company
Caller Box 3034
Gillette, WY 82717-3034
hereinafter called the lessee, is readjusted, effective 12-01-96, for a period
of 10 years and for so long thereafter as coal is produced in commercial
quantities from the leased lands, subject to readjustment of lease terms at the
end of each 10-year period.
Sec. 1. This lease readjustment is subject to the terms and provisions of the:
XXX Mineral Lands Leasing Act of 1920, Act of February 25, 1920, as amended, 41
Stat. 437, 30 U.S.C. 181-287, hereinafter referred to as the Act; as to 8005.12
A
XXX Mineral Leasing Act for Acquired Lands, Act of August 7, 1947, 61 Stat. 913,
30 U.S.C. 351-359; as to 40.05 A and to the regulations and formal orders of the
Secretary of the Interior which are now or hereafter in force, when not
inconsistent with the express and specific provisions herein.
Sec. 2. Lessor, in consideration of any rents and royalties to be paid, and the
conditions and covenants to be observed as herein set forth, hereby grants to
lessee the exclusive right and privilege to drill for, mine, extract, remove or
otherwise process and dispose of the coal deposits in, upon, or under the
following described lands in Campbell County, Wyoming:
T. 41 N., R. 69 W., 6th P.M., Wyoming
Sec. 6: Lots 8-23;
Sec. 7: Lots 5-12, 14-19;
Sec. 18: Lots 6, 7, 10, 11;
T. 42 N., R. 69 W., 6th P.M., Wyoming
Sec. 19: Lots 8, 13, 14;
Sec. 30: Lots 8-20;
Sec. 31: Lots 5-20;
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 2 of 4
T. 41 N., R. 70 W., 6th P.M., Wyoming
Sec. 1: Lots 5-7, 10-15, 17-20;
Sec. 2: Lots 17-20;
Sec. 3: Lots 17-20;
Sec. 11: Lots 1-9, 12
Sec. 12: Lots 1-13, 14 (ALQ Min); 16
T. 42 N., R. 70 W., 6th P.M., Wyoming
Sec. 13: Lots 13-16
Sec. 14: Lots 9-16;
Sec. 15: Lots 9-16;
Sec. 22: Lots 1, 2, 7, 8;
Sec. 23: Lots 1-16;
Sec. 24: Lots 1-16;
Sec. 25: Lots 1-16;
Sec. 26: Lots 1, 2, 7, 8.
Containing 8045.620 acres, more or less, together with the right to
construct such works, buildings, plants, structures, equipment and appliances
and the right to use such on-lease rights-of-way which may be necessary and
convenient to the exercise of the rights and privileges granted, subject to the
conditions herein provided.
PART II. TERMS AND CONDITIONS
Sec. 1. (a) RENTAL RATE - Lessee shall pay lessor rental annually and in
advance for each acre or fraction thereof during the continuance of the use at
the rate of $3.00 for each lease year.
(b) RENTAL CREDITS - Rental shall not be credited against either production or
advance royalties for any year.
Sec. 2. (a) PRODUCTION ROYALTIES - The royalty shall be 12 1/2 percent of the
value of the coal produced by strip or auger methods and 8 percent of the value
of the coal produced by underground mining methods. The value of the coal shall
be determined as set forth in 43 CFR 3480. Royalties are due to lessor the
final day of the month succeeding the calendar month on which the royalty
obligation accrues.
(b) ADVANCE ROYALTIES - Upon request by lessee, the Authorized Officer may
accept, for a total of not more than 10 years, the payment of advance royalties
in lieu of continued operation, consistent with the regulations. The advance
royalty shall be based on a percent of the value of a minimum number of tons
determined in the manner established by the advance royalty regulations in
effect at the time the lessee requests approval to pay advance royalties in lieu
of continued operation.
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 3 of 4
Sec. 3. BONDS - Lessee shall maintain in the proper office a lease bond in the
amount of $1,192,000.00. The Authorized Officer may require an increase in this
amount when additional coverage is determined appropriate.
Sec. 4. DILIGENCE - This lease is subject to the conditions of diligent
development and continued operation, except that these conditions are excused
when operations under the lease are interrupted by strikes, the elements, or
casualties not attributable to the lessee. The lessor, in the public interest,
may suspend the condition of continued operation upon payment of advance
royalties in accordance with the regulations in existence at the time of the
suspension. Lessee's failure to produce coal in commercial quantities at the
end of the 10 years shall terminate the lease. If not submitted already, lessee
shall submit an operation and reclamation plan pursuant to Section 7 of the Act
no later than 3 years after the effective date of this lease readjustment.
The lessor reserves the power to assent to or under the suspension of the terms
and conditions of this lease in accordance with, inter alia, Section 39 of the
Mineral Leasing Act, 30 U.S.C. 209.
Sec. 5. LOGICAL MINING UNIT (LMU) - Either upon approval by the lessor of the
lessee's application or at the direction of the lessor, this lease shall become
an LMU or part of an LMU, subject to the provisions set forth in the
regulations.
The stipulation established in an LMU approval in effect at the time of LMU
approval will supersede the relevant inconsistent terms of this lease so long as
the lease remains committed to the LMU. If the LMU of which this lease is a
part is dissolved, the lease shall then be subject to the lease terms which
would have been applied if the lease had not been included in an LMU.
Sec. 6. DOCUMENTS, EVIDENCE AND INSPECTION - At such times and in such form as
lessor may prescribe, lessee shall furnish detailed statements showing the
amounts and quality of all products removed and sold from the lease, the
proceeds therefrom, and the amount used for production purposes or unavoidably
lost.
Lessee shall keep open at all reasonable times for the inspection of any duly
Authorized Officer of the lessor, the leased premises and all surface and
underground improvements, works, machinery, ore stockpits, equipment, and all
books, accounts, maps and records relative to operations, surveys, or
investigations on or under the leased lands.
Lessee shall allow lessor access to and copying of documents reasonably
necessary to verify lessee compliance with terms and conditions of the lease.
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 4 of 4
While this lease remains in effect, information obtained under this section
shall be closed to inspection by the public in accordance with the Freedom of
Information Act (5 U.S.C. 552).
Sec. 7. DAMAGES TO PROPERTY AND CONDUCT OF OPERATIONS - Lessee shall comply at
its own expense with all reasonable orders of the Secretary, respecting diligent
operations, prevention of waste, and protection of other resources.
Lessee shall not conduct exploration operations, other than casual use, without
an approved exploration plan. All exploration plans prior to the commencement
of mining operations within an approved mining permit area shall be submitted to
the Authorized Officer.
Lessee shall carry on all operations in accordance with approved methods and
practices as provided in the operating regulations, having due regard for the
prevention of injury to life, health, or property, and prevention of waste,
damage, or degradation to any land, air, water, cultural, biological, visual,
and other resources, including mineral deposits and formations of mineral
deposit not leased hereunder, and to other land uses or users. Lessee shall
take measures deemed necessary by lessor to accomplish the intent of this lease
term. Such measures may include, but are not limited to modification to
proposed siting or design of facilities, timing of operations, to itself the
right to lease, sell or otherwise dispose of the surface or other mineral
deposits in the lands and the right to continue existing uses and to authorize
future uses upon or in the leased lands, including issuing leases for minerals
deposits not covered hereunder, and approving easements or rights-of-way.
Lessor shall condition such uses to prevent unnecessary or unreasonable
interference with rights of lessee as may be consistent with concepts of
multiple use and multiple mineral development.
Sec. 8. PROTECTION OF DIVERSE INTEREST, AND EQUAL OPPORTUNITY -Lessee shall:
pay when due all taxes legally assessed and levied under the laws of the State
or the United States; accord all employees complete freedom of purchase; pay all
wages at least twice each month in lawful money of the United States; maintain a
safe working environment in accordance with standard industry practices;
restrict the workday to not more than 8 hours in any one day for underground
workers except in emergencies; and take measure necessary to protect the health
and safety of the public. No person under the age of 16 years shall be employed
in any mine below the surface. To the extent that laws of the State in which
the lands are situated are more restrictive than the provisions in the
paragraph, then the State laws apply.
Lessee will comply with all provisions of Executive Order No. 11246 of September
24, 1965, as amended, and the rules, regulations, and relevant orders of the
Secretary of Labor.
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 5 of 4
Neither lessee nor lessee's subcontractors shall maintain segregated facilities.
Sec. 9. (a) TRANSFERS
XXX This lease may be transferred in whole or in part to any person,
association or corporation qualified to hold such lease interest.
[ ] This lease may be transferred in whole or in part to another public body,
or to a person who will mine the coal on behalf of, and for the use of, the
public body or to a person who for the limited purpose of creating a
security interest in favor of a lender agrees to be obligated to mine the
coal on behalf of the public body.
[ ] This lease may only be transferred in whole or in part to another small
business qualified under 13 CFR 121.
Transfers of record title, working or royalty interest must be approved in
accordance with the regulations.
(b) RELINQUISHMENT - The lessee may relinquish in writing at any time all
rights under this lease or any portion thereof as provided in the regulations.
Upon lessor's acceptance of the relinquishment, lessee shall be relieved of all
future obligations under the lease or the relinquished portion thereof,
whichever is applicable.
Sec. 10 DELIVERY OF PREMISES, REMOVAL OF MACHINERY, EQUIPMENT, ETC. - At such
times as all portions of this lease are returned to lessor, lessee shall deliver
up to lessor the land leased, underground timbering, and such other supports and
structures necessary for the preservation of the mine workings on the leased
premises or deposits and place all workings in condition for suspension or
abandonment. Within 180 days thereof, lessee shall remove from the premises all
other structures, machinery, equipment, tools, and materials that it elects to
or as required by the Authorized Officer. Any such structures, machinery,
equipment, tools and materials remaining on the leased lands beyond 180 days or
approved extension thereof, shall become the property of the lessor, but lessee
shall either remove any or all such property or shall continue to be liable for
the cost of removal and disposal in the amount actually incurred by the lessor.
If the surface is owned by third parties, lessor shall waive the requirement for
removal, provided the third parties do not object to such waiver. Lessee shall,
prior to the termination of bond liability or at any other time when required
and in accordance with all applicable laws and regulations reclaim all lands the
surface of which has been disturbed, dispose of all debris or solid waste,
repair the offsite and
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 6 of 4
onsite damage caused by lessee's activity or activities incidental thereto, and
reclaim access roads or trails.
Sec. 11. PROCEEDINGS IN CASE OF DEFAULT - If lessee fails to comply with
applicable laws, existing regulations, or the terms, conditions and stipulations
of this lease, and the noncompliance continues for 30 days after written notice
thereof, this lease shall be subject to cancellation by the lessor only by
judicial proceedings. This provision shall not be construed to prevent the
exercise by lessor of any other legal and equitable remedy, including waiver of
the default. Any such remedy or waiver shall not prevent later cancellation for
the same default occurring at any other time.
Sec. 12. HEIRS AND SUCCESSORS-IN-INTEREST - Each obligation of this lease shall
extend to and be binding upon, and every benefit hereof shall inure to, the
heirs, executors, administrators, successors, or assigns of the respective
parties hereto.
Sec. 13. INDEMNIFICATION - Lessee shall indemnify and hold harmless the United
States from any and all claims arising out of the lessee's activities and
operations under this lease.
Sec. 14. SPECIAL STATUTES - This lease is subject to the Federal Water
Pollution Control Act (33 U.S.C. 1151-1175), the Clean Air Act (42 U.S.C. 1857,
et. seq.), and to all other applicable laws pertaining to exploration
activities, mining operations and reclamation, including the Surface Mining
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et. seq.).
Sec. 15. SPECIAL STIPULATIONS - In addition to observing the general
obligations and standards of performance set out in the current regulations, the
lessee shall comply with and be bound by the following special stipulations.
These stipulations are also imposed upon the lessee's agents and employees. The
failure or refusal of any of these persons to comply with these stipulations
shall be deemed a failure of the lessee to comply with the terms of this lease.
The lessee shall require his agents, contractors and subcontractors involved in
activities concerning this lease to include these stipulations in the contracts
between and among them. These stipulations may be revised or amended, in
writing, by the mutual consent of the lessor and the lessee at any time to
adjust to changed conditions or to correct an oversight.
(a) CULTURAL RESOURCES
(1) Before undertaking any activities that may disturb the surface of the
leased lands, the lessee shall conduct a cultural resource intensive field
inventory in a manner specified by the Authorized Officer of the BLM or of the
surface managing agency, if different, on portions of the mine plan area and
adjacent areas, or exploration plan area, that may be adversely affected
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 7 of 4
by lease-related activities and which were not previously inventoried at such a
level of intensity. The inventory shall be conducted by a qualified
professional cultural resource specialist (i.e., archeologist, historian,
historical architect, as appropriate), approved by the Authorized Officer of the
surface managing agency (BLM if the surface is privately owned), and a report of
the inventory and recommendations for protecting any cultural resources
identified shall be submitted to the Assistant Director of the Western Support
Center of the Office of Surface Mining, the Authorized Officer of the BLM, if
activities are associated with coal exploration outside an approved mining
permit area (hereinafter called Authorized Officer), and the Authorized Officer
of the surface managing agency, if different. The lessee shall undertake
measures, in accordance with instructions from the Assistant Director, or
Authorized Officer, to protect cultural resources on the leased lands. The
lessee shall not commence the surface disturbing activities until permission to
proceed is given by the Assistant Director or Authorized Officer.
(2) The lessee shall protect all cultural resource properties within the lease
area from lease-related activities until the cultural resource mitigation
measures can be implemented as part of an approved mining and reclamation plan
or exploration plan.
(3) The cost of conducting the inventory, preparing reports, and carrying out
mitigation measures shall be borne by the lessee.
(4) If cultural resources are discovered during operations under this lease,
the lessee shall immediately bring them to the attention of the Assistant
Director or Authorized Officer, or the Authorized Officer of the surface
managing agency, if the Assistant Director is not available. The lessee shall
not disturb such resources except as may be subsequently authorized by the
Assistant Director or Authorized Officer. Within two (2) working days of
notification, the Assistant Director or Authorized Officer will evaluate or have
evaluated any cultural resources discovered and will determine if any action may
be required to protect or preserve such discoveries. The cost of data recovery
for cultural resources discovered during lease operations shall be borne by the
surface managing agency unless otherwise specified by the Authorized Officer of
the BLM or of the surface managing agency, if different.
(5) All cultural resources shall remain under the jurisdiction of the United
States until ownership is determined under applicable law.
(b) PALEONTOLOGICAL RESOURCES - If paleontological resources, either large and
conspicuous, and/or of significant scientific value are discovered during mining
operations, the find will be reported to the Authorized Officer immediately.
Mining
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 8 of 4
operations will be suspended within 250 feet of said find. An evaluation of the
paleontological discovery will be made by a BLM approved professional
paleontologist within five (5) working days, weather permitting, to determine
the appropriate action(s) to prevent the potential loss of any significant
paleontological value. Operations within 250 feet of such discovery will not be
resumed until written authorization to proceed is issued by the Authorized
Officer. The lessee will bear the cost of any required paleontological
appraisals, surface collection of fossils, or salvage of any large conspicuous
fossils of significant scientific interest discovered during the mining
operations.
(c) MULTIPLE MINERAL DEVELOPMENT - Operations will not be approved which, in
the opinion of the Authorized Officer, would unreasonably interfere with the
orderly development and/or production from a valid existing mineral lease issued
prior to this one for the same lands. Lessor reserves the right in accordance
with applicable coal regulations administered by Lessor to require the
Operator/Lessee to modify the Resource Recovery and Protection Plan (R2P2) to
minimize conflicts with other resources and to maximize recovery of all
resources.
(d) OIL AND GAS/COAL RESOURCES - The BLM realizes that coal mining operations
conducted on Federal coal leases issued within producing oil and gas fields may
interfere with the economic recovery of oil and gas; just as Federal oil and gas
leases issued in a Federal coal lease area may inhibit coal recovery. BLM
retains the authority to alter and/or modify the Resource Recovery and
Protection Plans for coal operations and/or oil and gas operations on those
lands covered by Federal mineral leases so as to obtain maximum resource
recovery.
(e) RESOURCE RECOVERY AND PROTECTION - Any bypass of Federal coal previously
determined to be economically recoverable under an approved Resource Recovery
and Protection Plan (R2P2), must have the written approval of the Authorized
Officer of the BLM in the form of an approved modification to the R2P2 prior to
the Federal coal being bypassed. (43 CFR 3482.2(e)(2)) Failure to comply with
this requirement shall result in the issuance of a Notice of Noncompliance by
the Authorized Officer. The Notice of Noncompliance will include the amount of
damages to be assessed for the unauthorized bypass of Federal coal as determined
by the Authorized Officer. Lessee shall pay royalty for all coal not recovered
which was available for mining and was economically recoverable by mining
operations under an R2P2 approved by the Authorized Officer. The royalty shall
be determined in accordance with Section 2.(a), PRODUCTION ROYALTIES, of this
lease, and the value of the coal shall be determined as set forth in the
applicable coal regulations administered by the Lessor. Federal coal not
recovered, but which was available for recovery,
<PAGE>
WYW0321779
12-01-96 Readjustment
Page 9 of 4
will be volumetrically determined by the Authorized Officer using standard
industry practices.
(f) RECORDS OF PRODUCTION AND SALES - Lessee will accurately determine the
weight of all leased coal deposits mined (produced) and sold, will keep accurate
records of such, and make those available to the Authorized Officer for
inspection.
(g) PUBLIC LAND SURVEY PROTECTION - The lessee will protect all survey
monuments, witness corners, reference monuments, and bearing trees against
destruction, obliteration, or damage during operations on the lease areas. If
any monuments, corners or accessories are destroyed, obliterated, or damaged by
this operation, the lessee will hire an appropriate county surveyor or
registered land surveyor to reestablish or restore the monuments, corners, or
accessories at the same location, using surveying procedures in accordance with
the "Manual of Surveying Instructions for the Survey of the Public Lands of the
--------------------------------------------------------------------------
United States." The survey will be recorded in the appropriate county records,
- -------------
with a copy sent to the Authorized Officer.
<PAGE>
EXHIBIT 10.4
United States Department of the Interior
BUREAU OF LAND MANAGEMENT In Reply Refer To:
Wyoming State Office
P.O. Box 1828 3452
Cheyenne, Wyoming 82003-1828 WYW119554
(921MLove)
PHONE NO: 307-775-6258
FAX NO: 307-775-6203
D E C I S I O N
Powder River Coal Company :
Attn: Victor E. Garber : Federal Coal Lease
Caller Box 3034 : North Antelope/Rochelle Mine
Gillette, Wyoming 82717-3034 :
Partial Relinquishment Accepted
-------------------------------
On February 17, 1998, we received a partial relinquishment of Federal coal lease
WYW119554 as to the following lands:
T. 41 N., R. 70 W., 6th P.M., Wyoming
Sec. 3: Lots 5 (SW), 6 (S2), 7 (S2),
10, 11, 12 (W2), 13 (W2), 14, 15.
Containing 245.418 acres, more or less.
The Casper District Office has determined that the public interest shall not be
impaired by acceptance of the relinquishment, as maximum economic recovery of
the recoverable resource shall be achieved and adequate reclamation has occurred
in accordance with the policy outlined in Instruction Memorandum No. WY-98-35.
That office has recommended that the partial relinquishment be accepted.
Therefore, the partial relinquishment of Federal coal lease WYW119554 is hereby
accepted effective February 17, 1998, the date the relinquishment was filed.
Acceptance of this partial relinquishment does not relieve Powder River Coal
Company, or its successors, from complying with the reclamation requirements of
30 CFR Chapter VII, Subchapter K, or an approved State program. (43 CFR 3480.0-
6(d)(8))
The following-described lands are remaining in Federal coal lease WYW119554:
T. 41 N., R. 70 W., 6th P.M., Wyoming
Sec. 1: Lots 8, 9, 16;
Sec. 2: Lots 5-16;
<PAGE>
2
Sec. 3: Lots 5 (N2 & SE), 6 (N2), 7 (N2), 8, 9, 12 (E2), 13
(E2), 16;
Sec. 4: Lots 5-15, SWNE;
Sec. 5: Lots 5-18;
Sec. 6: Lots 8, 9, 14-17, 22, 23;
Sec. 7: Lots 5, 12, 13, 20;
Sec. 8: Lots 4, 10, 11, SWNW;
Sec. 17: Lots 3-6, 11-14.
Containing 2,818.622 acres, more or less.
Attached to this Decision is an acreage calculation worksheet, which lists the
acreage amounts for the lands remaining in the lease.
The new rental amount due each year for this lease beginning October 1, 1998,
will be $8,457.00.
If you have any questions concerning this matter, please contact
Mavis Love in the Minerals and Lands Authorization Group at
307-775-6258.
Alan R. Pierson
State Director
Attachment
cc:
Department of Environmental Quality, Land Quality Division,
122 West 25th Street, Cheyenne, WY 82002
Department of Environmental Quality, Land Quality Division,
Attn: Bob Giurgevich, 1043 Coffeen Avenue, Suite D,
Sheridan, WY 82801
Office of Surface Mining, Attn: Mr. Peter Rutledge, Western
Regional Coordinating Center, 1999 Broadway, Suite 3320,
Denver, CO 80202-5733
MMS, REP, Reporting & Valuation Division, Solid Minerals
Reporting Staff, P.O. Box 5760, MS3153, Denver CO 80217
WO (320), Room 501, LS
DM, Casper
<PAGE>
ACREAGE CALCULATIONS FOR LANDS REMAINING IN
FEDERAL COAL LEASE WYW119554
AFTER ACCEPTANCE OF PARTIAL RELINQUISHMENT
EFFECTIVE FEBRUARY 17, 1998
T. 41 N., R. 70 W., 6th P.M., Wyoming
- -------------------------------------
Sec. 1: Lots 8, 9, 16 120.130
Sec. 2: Lots 5-16 473.560
Sec. 3: Lots 5 (N2 & SE) 29.497
Lot 6 (N2) 19.850
Lot 7 (N2) 20.040
Lots 8, 9 80.120
Lot 12 (E2) 19.560
Lot 13 (E2) 19.355
Lot 16 39.260
Sec. 4: Lots 5-15, SWNE 482.000
Sec. 5: Lots 5-18 565.520
Sec. 6: Lots 8, 9, 14-17, 22, 23 309.400
Sec. 7: Lots 5, 12, 13, 20 160.010
Sec. 8: Lots 4, 10, 11, SWNW 160.040
Sec. 17: Lots 3-6, 11-14 320.280
TOTAL ACREAGE 2,818.622
<PAGE>
UNITED STATES Serial Number
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT WYW119554
COAL LEASE
- -------------------------------------------------------------------
PART 1: LEASE RIGHTS GRANTED
This lease, entered into by and between the United States of America,
hereinafter called lessor, through the Bureau of Land Management, and (Name and
Address)
Powder River Coal Company
Caller Box 3034
Gillette, Wyoming 82717-3034
hereinafter called lessee, is effective (date) 10-1-92, for a period of 20 years
and for so long thereafter as coal is produced in commercial quantities from the
leased lands, subject to readjustment of lease terms at the end of the 20th
lease year and each 10-year period thereafter.
Sec. 1. This lease is issued pursuant and subject to the terms and provisions
of the:
[X] Mineral Lands Leasing Act of 1920, Act of February 25, 1920, as amended, 41
Stat. 437, 30 U.S.C. 181-287, hereinafter referred to as the Act;
[ ] Mineral Leasing Act for Acquired Lands, Act of August 7, 1947, 61 Stat.
913, 30 U.S.C. 351-359;
and to the regulations and formal orders of the Secretary of the Interior which
are now or hereafter in force, when not inconsistent with the express and
specific provisions herein.
Sec. 2. Lessor, in consideration of any bonuses, rents, and royalties to be
paid, and the conditions and covenants to be observed as herein set forth,
hereby grants and leases to lessee the exclusive right and privilege to drill
for, mine, extract, remove or otherwise process and dispose of the coal deposits
in, upon, or under the following described lands:
T. 41 N., R. 70 W., 6th P.M., Wyoming
Sec. 1: Lots 8, 9, 16;
Sec. 2: Lots 5 thru 16;
Sec. 3: Lots 5 thru 16;
Sec. 4: Lots 5 thru 15, SWNE;
Sec. 5: Lots 5 thru 18;
Sec. 6: Lots 8, 9, 14 thru 17, 22, 23;
Sec. 7: Lots 5, 12, 13, 20;
Sec. 8: Lots 4, 10, 11, SWNW;
Sec. 17: Lots 3 thru 6, 11 thru 14.
<PAGE>
WYW119554
Page 2
Containing 3064.04 acres, more or less, together with the right to construct
such works, buildings, plants, structures, equipment and appliances and the
right to use such on-lease rights-of-way which may be necessary and convenient
in the exercise of the rights and privileges granted, subject to the conditions
herein provided.
PART II. TERMS AND CONDITIONS
Sec. 1. (a) RENTAL RATE - Lessee shall pay lessor rental annually and in
advance for each acre or fraction thereof during the continuance of the use at
the rate of $3.00 for each lease year.
(b) RENTAL CREDITS - Rental shall not be credited against either production or
advance royalties for any year.
Sec. 2. (a) PRODUCTION ROYALTIES - The royalty shall be 12.5 percent of the
value of the coal as set forth in the regulations. Royalties are due to lessor
the final day of the month succeeding the calendar month in which the royalty
obligation accrues.
(b) ADVANCE ROYALTIES - Upon request by lessee, the Authorized Officer may
accept, for a total of not more than 10 years, the payment of advance royalties
in lieu of continued operation, consistent with the regulations. The advance
royalty shall be based on a percent of the value of a minimum number of tons
determined in the manner established by the advance royalty regulations in
effect at the time the lessee requests approval to pay advance royalties in lieu
of continued operation.
Sec. 3. BONDS - Lessee shall maintain in the proper office a lease bond in the
amount of $ . The Authorized Officer may require an increase in this
amount when additional coverage is determined appropriate.
Sec. 4. DILIGENCE - This lease is subject to the conditions of diligent
development and continued operation, except that these conditions are excused
when operations under the lease are interrupted by strikes, the elements, or
casualties not attributable to the lessee. The lessor, in the public interest,
may suspend the condition of continued operation upon payment of advance
royalties in accordance with the regulations in existence at the time of the
suspension. Lessee's failure to produce coal in commercial quantities at the
end of 10 years shall terminate the lease. Lessee shall submit an operation and
reclamation plan pursuant to Section 7 of the Act not later than 3 years after
lease issuance.
The lessor reserves the power to assent to or order the suspension of the terms
and conditions of this lease in
<PAGE>
WYW119554
Page 3
accordance with, inter alia, Section 39 of the Mineral Leasing Act, 30 U.S.C.
209.
Sec. 5. LOGICAL MINING UNIT (LMU) - Either upon approval by the lessor of the
lessee's application or at the direction of the lessor, this lease shall become
an LMU or part of an LMU, subject to the provisions set forth in the
regulations.
The stipulations established in an LMU approval in effect at the time of LMU
approval will supersede the relevant inconsistent terms of this lease so long as
the lease remains committed to the LMU. If the LMU of which this lease is a
part is dissolved, the lease shall then be subject to the lease terms which
would have been applied if the lease had not been included in an LMU.
Sec. 6. DOCUMENTS, EVIDENCE AND INSPECTION - At such times and in such form as
lessor may prescribe, lessee shall furnish detailed statements showing the
amounts and quality of all products removed and sold from lease, the proceeds
therefrom, and the amount used for production purposes or unavoidably lost.
Lessee shall keep open at all reasonable times for the inspection of any duly
Authorized Officer of lessor, the leased premises and all surface and
underground improvements, works, machinery, ore stockpits, equipment, and all
books, accounts, maps, and records relative to operations, surveys, or
investigations on or under the leased lands.
Lessee shall allow lessor access to and copying of documents reasonably
necessary to verify lessee compliance with terms and conditions of the lease.
While this lease remains in effect, information obtained under this section
shall be closed to inspection by the public in accordance with the Freedom of
Information Act (5 U.S.C. 552).
Sec. 7. DAMAGES TO PROPERTY AND CONDUCT OF OPERATIONS - Lessee shall comply at
its own expense with all reasonable orders of the Secretary, respecting diligent
operations, prevention of waste, and protection of other resources.
Lessee shall not conduct exploration operations, other than casual use, without
an approved exploration plan. All exploration plans prior to the commencement
of mining operations within an approved mining permit area shall be submitted to
the Authorized Officer.
Lessee shall carry on all operations in accordance with approved methods and
practices as provided in the operating regulations, having due regard for the
prevention of injury to life, health, or property, and prevention of waste,
damage or degradation to any land, air, water, cultural, biological, visual, and
other resources, including mineral deposits and formations of mineral
<PAGE>
WYW119554
Page 4
deposits not leased hereunder, and to other land uses or users. Lessee shall
take measures deemed necessary by lessor to accomplish the intent of this lease
term. Such measures may include, but are not limited to, modification to
proposed siting or design of facilities, timing of operations, and specification
of interim and final reclamation procedures. Lessor reserves to itself the
right to lease, sell or otherwise dispose of the surface or other mineral
deposits in the lands and the right to continue existing uses and to authorize
future uses upon or in the leased lands, including issuing leases for minerals
deposits not covered hereunder and approving easements or rights-of-way. Lessor
shall condition such uses to prevent unnecessary or unreasonable interference
with rights of lessee as may be consistent with concepts of multiple use and
multiple mineral development.
Sec. 8. PROTECTION OF DIVERSE INTEREST, AND EQUAL OPPORTUNITY -Lessee shall:
pay when due all taxes legally assessed and levied under the laws of the State
or the United States; accord all employees complete freedom of purchase; pay all
wages at least twice each month in lawful money of the United States; maintain a
safe working environment in accordance with standard industry practices;
restrict the workday to not more than 8 hours in any one day for underground
workers, except in emergencies; and take measures necessary to protect the
health and safety of the public. No person under the age of 16 years shall be
employed in any mine below the surface. To the extent that laws of the State in
which the lands are situated are more restrictive than the provisions in this
paragraph, then the State laws apply.
Lessee will comply with all provisions of Executive Order No. 11246 of September
24, 1965, as amended, and the rules, regulations, and relevant orders of the
Secretary of Labor. Neither lessee nor lessee's subcontractors shall maintain
segregated facilities.
Sec. 9. (a) TRANSFERS
[X] This lease may be transferred in whole or in part to any person,
association or corporation qualified to hold such lease interest.
[ ] This lease may be transferred in whole or in part to another public body or
to a person who will mine the coal on behalf of, and for the use of, the
public body or to a person who for the limited purpose of creating a
security interest in favor of a lender agrees to be obligated to mine the
coal on behalf of the public body.
[ ] This lease may only be transferred in whole or in part to another small
business qualified under 13 CFR 121.
<PAGE>
WYW119554
Page 5
Transfers of record title, working or royalty interest must be
approved in accordance with the regulations.
(b) RELINQUISHMENT - The lessee may relinquish in writing at any time all
rights under this lease or any portion thereof as provided in the regulations.
Upon lessor's acceptance of the relinquishment, lessee shall be relieved of all
future obligations under the lease or the relinquished portion thereof,
whichever is applicable.
Sec. 10. DELIVERY OF PREMISES, REMOVAL OF MACHINERY, EQUIPMENT, ETC. - At such
times as all portions of this lease are returned to lessor, lessee shall deliver
up to lessor the land leased, underground timbering, and such other supports and
structures necessary for the preservation of the mine workings on the leased
premises or deposits and place all workings in condition for suspension or
abandonment. Within 180 days thereof, lessee shall remove from the premises all
other structures, machinery, equipment, tools, and materials that it elects to
or as required by the Authorized Officer. Any such structures, machinery,
equipment, tools and materials remaining on the lease lands beyond 180 days, or
approved extension thereof, shall become the property of the lessor, but lessee
shall either remove any or all such property or shall continue to be liable for
the cost of removal and disposal in the amount actually incurred by the lessor.
If the surface is owned by third parties, lessor shall waive the requirement for
removal, provided the third parties do not object to such waiver. Lessee shall,
prior to the termination of bond liability or at any other time when required
and in accordance with all applicable laws and regulations reclaim all lands the
surface of which has been disturbed, dispose of all debris or solid waste,
repair the offsite and onsite damage caused by lessee's activity or activities
incidental thereto, and reclaim access roads or trails.
Sec. 11. PROCEEDINGS IN CASE OF DEFAULT - If lessee fails to comply with
applicable laws, existing regulations, or the terms, conditions and stipulations
of this lease, and the noncompliance continues for 30 days after written notice
thereof, this lease shall be subject to cancellation by the lessor only by
judicial proceedings. This provision shall not be construed to prevent the
exercise by lessor of any other legal and equitable remedy, including waiver of
the default. Any such remedy or waiver shall not prevent later cancellation for
the same default occurring at any other time.
Sec. 12. HEIRS AND SUCCESSORS-IN-INTEREST - Each obligation of this lease shall
extend to and be binding upon, and every benefit hereof shall inure to, the
heirs, executors, administrators, successors, or assigns of the respective
parties hereto.
<PAGE>
WYW119554
Page 6
Sec. 13. INDEMNIFICATION - Lessee shall indemnify and hold harmless the United
States from any and all claims arising out of the lessee's activities and
operations under this lease.
Sec. 14. SPECIAL STATUTES - This lease is subject to the Clean Water Act (33
U.S.C. 1252 et. seq.), the Clean Air Act (42 U.S.C. 4274 et. seq.), and to all
other applicable laws pertaining to exploration activities, mining operations
and reclamation, including the Surface Mining Control and Reclamation Act of
1977 (30 U.S.C. 1201 et. seq.).
Sec. 15. SPECIAL STIPULATIONS - In addition to observing the general
obligations and standards of performance set out in the current regulations, the
lessee shall comply with and be bound by the following special stipulations.
These stipulations are also imposed upon the lessee's agents and employees. The
failure or refusal of any of these persons to comply with these stipulations
shall be deemed a failure of the lessee to comply with the terms of this lease.
The lessee shall require his agents, contractors and subcontractors involved in
activities concerning this lease to include these stipulations in the contracts
between and among them. These stipulations may be revised or amended, in
writing, by the mutual consent of the lessor and the lessee at any time to
adjust to changed conditions or to correct an oversight.
(a) CULTURAL RESOURCES
(1) Before undertaking any activities that may disturb the surface of the
leased lands, the lessee shall conduct a cultural resource intensive field
inventory in a manner specified by the Authorized Officer of the BLM or of the
surface managing agency, if different, on portions of the mine plan area and
adjacent areas, or exploration plan area, that may be adversely affected by
lease-related activities and which were not previously inventoried at such a
level of intensity. The inventory shall be conducted by a qualified
professional cultural resource specialist (i.e., archeologist, historian,
historical architect, as appropriate), approved by the Authorized Officer of the
surface managing agency (BLM, if the surface is privately owned), and a report
of the inventory and recommendations for protecting any cultural resources
identified shall be submitted to the Assistant Director of the Western Support
Center of the Office of Surface Mining, the Authorized Officer of the BLM, if
activities are associated with coal exploration outside an approved mining
permit area (hereinafter called Authorized Officer), and the Authorized Officer
of the surface managing agency, if different. The lessee shall undertake
measures, in accordance with instructions from the Assistant Director, or
Authorized Officer, to protect cultural resources on the leased lands. The
lessee shall not commence the surface disturbing activities until permission to
proceed is given by the Assistant Director or Authorized Officer.
<PAGE>
WYW119554
Page 7
(2) The lessee shall protect all cultural resource properties within the lease
area from lease-related activities until the cultural resource mitigation
measures can be implemented as part of an approved mining and reclamation plan
or exploration plan.
(3) The cost of conducting the inventory, preparing reports, and carrying out
mitigation measures shall be borne by the lessee.
(4) If cultural resources are discovered during operations under this lease,
the lessee shall immediately bring them to the attention of the Assistant
Director or Authorized Officer, or the Authorized Officer of the surface
managing agency, if the Assistant Director is not available. The lessee shall
not disturb such resources except as may be subsequently authorized by the
Assistant Director or Authorized Officer. Within two (2) working days of
notification, the Assistant Director or Authorized Officer will evaluate or have
evaluated any cultural resources discovered and will determine if any action may
be required to protect or preserve such discoveries. The cost of data recover
for cultural resources discovered during lease operations shall be borne by the
surface managing agency unless otherwise specified by the Authorized Officer of
the BLM or of the surface managing agency, if different.
(5) All cultural resources shall remain under the jurisdiction of the United
States until ownership is determined under applicable law.
(b) PALEONTOLOGICAL RESOURCES - If paleontological resources, either large and
conspicuous, and/or of significant scientific value are discovered during
construction, the find will be reported to the Authorized Officer immediately.
Construction will be suspended within 250 feet of said find. An evaluation of
the paleontological discovery will be made by a BLM approved professional
paleontologist within five (5) working days, weather permitting, to determine
the appropriate action(s) to prevent the potential loss of any significant
paleontological value. Operations within 250 feet of such discovery will not be
resumed until written authorization to proceed is issued by the Authorized
Officer. The lessee will bear the cost of any required paleontological
appraisals, surface collection of fossils, or salvage of any large conspicuous
fossils of significant scientific interest discovered during the operations.
(c) OIL AND GAS/COAL RESOURCES - The BLM realizes that coal mining operations
conducted on Federal coal leases issued within producing oil and gas fields may
interfere with the economic recovery of oil and gas; just as Federal oil and gas
leases issued in a Federal coal lease area may inhibit coal recovery. BLM
retains the authority to alter and/or modify the resource recovery and
protection plans for coal operations and/or oil and gas operations on those
lands covered by Federal mineral leases so as to obtain maximum resource
recovery.
<PAGE>
WYW119554
Page 8
(d) RESOURCE RECOVERY AND PROTECTION - Proposed modifications to the approved
resource recovery and protection plan for any requirements under the MLA may be
submitted in writing for approval/disapproval by the Authorized Officer.
Failure to comply with this requirement shall result in the issuance of a Notice
of Noncompliance by the Authorized Officer. The Notice of Noncompliance may
include the amount of royalty to be assessed for Federal coal leased to the
operator that was not mined, in violation of the approved resource recovery and
protection plan.
(e) PUBLIC LAND SURVEY PROTECTION - The lessee will protect all survey
monuments, witness corners, reference monuments, and bearing trees against
destruction, obliteration, or damage during operations on the lease areas. If
any monuments, corners or accessories are destroyed, obliterated, or damaged by
this operation, the lessee will hire an appropriate county surveyor or
registered land surveyor to reestablish or restore the monuments, corners, or
accessories at the same location, using surveying procedures in accordance with
the "Manual of Surveying Instructions for the Survey of the Public Lands of the
--------------------------------------------------------------------------
United States." The survey will be recorded in the appropriate county records,
- -------------
with a copy sent to the Authorized Officer.
<PAGE>
WYW119554
Page 9
FOREST SERVICE STIPULATION 1
STIPULATION FOR LANDS OF THE NATIONAL FOREST SYSTEM
UNDER JURISDICTION OF
DEPARTMENT OF AGRICULTURE
The licensee/permittee/lessee must comply with all the rules and regulations of
the Secretary of Agriculture set forth at Title 36, Chapter II, of the Code of
Federal Regulations governing the use and management of the National Forest
System (NFS) when not inconsistent with the rights granted by the Secretary of
the Interior in the license/prospecting permit/lease. The Secretary of
Agriculture's rules and regulations must be complied with for (1) all use and
occupancy of the NFS prior to approval of a permit/operation plan by the
Secretary of the Interior, (2) uses of all existing improvements, such as Forest
development roads, within and outside the area licensed, permitted or leased by
the Secretary of the Interior; and (3) use and occupancy of the NFS not
authorized by a permit/operating plan approved by the Secretary of the Interior.
All matters related to this stipulation are to be addressed
to District Ranger
at Douglas Ranger District
(Thunder Basin NG)
Medicine Bow National Forest
809 South 9th Street
Douglas, Wyoming 82633
Telephone No.: (307) 358-4690
who is the authorized representative of the Secretary of Agriculture.
/s/ Larry H. Fox
--------------------------------------
Larry H. Fox
<PAGE>
EXHIBIT 10.5
United States Department of the Interior
BUREAU OF LAND MANAGEMENT In Reply Refer To:
Wyoming State Office
P.O. Box 1828 3452
Cheyenne, Wyoming 82003-1828 WYW5036
(921MLove)
PHONE NO: 307-775-6258
FAX NO: 307-775-6203
D E C I S I O N
Caballo Coal Company :
Attn: Victor E. Garber : Federal Coal Lease
Caller Box 3037 : Rawhide Mine
Gillette, Wyoming 82717-3037 :
Partial Relinquishments Accepted
--------------------------------
On February 17, 1998, we received a partial relinquishment of Federal coal lease
WYW5036 as to the following lands:
T. 51 N., R. 72 W., 6th P.M., Wyoming
Sec. 3: Lots 9 (N2), 10, 15, 18 (N2);
Sec. 4: Lots 5, 6, 7 (E2 & E2SW), 9 (S2N2),
10 (N2), 11 (N2), 12 (N2);
Sec. 10: Lots 13, 14 (SW);
Sec. 11: Lots 15 (E2), 16;
Sec. 14: Lots 1, 2 (E2 & SW), 3 (S2), 4 (SE),
5 (E2), 6-11, 12 (NE), 14-16;
Sec. 15: Lots 1 (S2), 2 (S2), 3 (W2 & SE), 4-8,
9 (W2 & NE), 10-12.
Containing 1,216.329 acres, more or less.
Thereafter, on March 17, 1998, we received an additional partial relinquishment
of the lease as to the following lands:
T. 51 N., R. 72 W., 6th P.M., Wyoming
Sec. 14: Lots 4 (SW), 5 (W2), 12 (W2 & SE), 13;
Sec. 15: Lot 9 (SE).
Containing 101.258 acres, more or less.
The Casper District Office has determined that the public interest shall not be
impaired by acceptance of the relinquishments, as maximum economic recovery of
the recoverable resource shall be achieved and adequate reclamation has occurred
in accordance with the policy outlined in Instruction Memorandum No. WY-98-35.
That office has recommended that the partial relinquishments be accepted.
<PAGE>
2
Therefore, the partial relinquishments of Federal coal lease WYW5036 are hereby
accepted effective February 17, 1998, and March 17, 1998, respectively, the
dates the relinquishments were filed.
Acceptance of these partial relinquishments does not relieve Caballo Coal
Company, or its successors, from complying with the reclamation requirements of
30 CFR Chapter VII, Subchapter K, or an approved State program. (43 CFR 3480.0-
6(d)(8))
The following-described lands are remaining in Federal coal lease WYW5036:
T. 51 N., R. 72 W., 6th P.M., Wyoming
Sec. 3: Lots 9 (S2), 16, 17, 18 (S2);
Sec. 4: Lots 9 (S2), 10 (S2), 11 (S2), 12 (S2), 13-20;
Sec. 5: Lots 8-19;
Sec. 6 Lots 8-22;
Sec. 9: Lots 1-15, SWNW;
Sec. 10: Lots 1-12, 14 (N2 & SE), 15, 16;
Sec. 11: Lots 1-14; 15 (W2);
Sec. 14: Lots 2 (NW), 3 (N2), 4 (N2);
Sec. 15: Lots 1 (N2), 2 (N2), 3 (NE);
T. 52 N., R. 72 W., 6th P.M., Wyoming
Sec. 31: Lots 19, 20.
Containing 3,683.748 acres, more or less.
Attached to this Decision is an acreage calculation worksheet, which lists the
acreage amounts for the lands remaining in the lease.
The new rental amount due each year for this lease beginning December 26, 1998,
will be $11,052.00.
If you have any questions concerning this matter, please contact
Mavis Love in the Minerals and Lands Authorization Group at
307-775-6258.
Alan R. Pierson
State Director
Attachment
cc:
Department of Environmental Quality, Land Quality Division,
122 West 25th Street, Cheyenne, WY 82002
Department of Environmental Quality, Land Quality Division,
Attn: Bob Giurgevich, 1043 Coffeen Avenue, Suite D,
Sheridan, WY 82801
<PAGE>
3
Office of Surface Mining, Attn: Mr. Peter Rutledge, Western
Regional Coordinating Center, 1999 Broadway, Suite 3320,
Denver, CO 80202-5733
MMS, RMP, Reporting & Valuation Division, Solid Minerals
Reporting Staff, P.O. Box 5760, MS3153, Denver CO 80217
WO (320), Room 501, LS
DM, Casper
<PAGE>
ACREAGE CALCULATIONS FOR LANDS REMAINING IN
FEDERAL COAL LEASE WYW5036
AFTER ACCEPTANCE OF PARTIAL RELINQUISHMENT
EFFECTIVE FEBRUARY 17, 1998 AND MARCH 17, 1998
T. 51 N., R. 72 W., 6th P.M. Wyoming
- ------------------------------------
Sec. 3: Lot 9 (S2) 19.665
Lots 16 & 17 72.850
Lot 18 (S2) 17.975
Sec. 4: Lot 9 (S2) 20.285
Lot 10 (S2) 20.285
Lot 11 (S2) 20.130
Lot 12 (S2) 20.130
Lots 13-20 319.100
Sec. 5: Lots 8-19 501.100
Sec. 6: Lots 8-22 777.310
Sec. 9: Lots 1-15, SWNW 635.920
Sec. 10: Lots 1-12 433.450
Lot 14 (N2 & SE) 27.488
Lots 15 & 16 73.450
Sec. 11: Lots 1-14 507.370
Lot 15(W2) 18.350
Sec. 14: Lot 2 (NW) 9.205
Lot 3 (N2) 18.415
Lot 4 (N2) 18.425
Sec. 15: Lot 1 (N2) 18.450
Lot 2 (N2) 18.435
Lot 3 (NE) 9.210
T. 52 N., R. 72 W., 6th P.M. Wyoming
- ------------------------------------
Sec. 31: Lots 19 & 20 106.750
TOTAL ACREAGE 3,683.748
<PAGE>
UNITED STATES Serial Number
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT WYW5036
COAL LEASE READJUSTMENT Date Lease Issued
December 1, 1967
========================================================
PART 1: LEASE RIGHTS GRANTED
This lease, entered into by and between the United States of America,
hereinafter called the lessor, through the Bureau of Land Management, and (Name
and Address)
Caballo Coal Company
Caller Box 3037
Gillette, Wyoming 82717
hereinafter called the lessee, is readjusted effective December 1, 1997, for a
period of 10 years and for so long thereafter as coal is produced in commercial
quantities from the leased lands, subject to readjustment of lease terms at the
end of each 10-year period.
Sec. 1. This lease readjustment is subject to the terms and provisions of the:
XX Mineral Lands Leasing Act of 1920, Act of February 25, 1920, as amended, 41
Stat. 437, 30 U.S.C. 181-287, hereinafter referred to as the Act;
[ ] Mineral Leasing Act for Acquired Lands, Act of August 7, 1947, 61 Stat.
913, 30 U.S.C. 351-359;
and to the regulations and formal orders of the Secretary of the Interior which
are now or hereafter in force, when not inconsistent with the express and
specific provisions herein.
Sec. 2. Lessor, in consideration of any rents and royalties to be paid, and the
conditions and covenants to be observed as herein set forth, hereby grants to
lessee the exclusive right and privilege to drill for, mine, extract, remove or
otherwise process and dispose of the coal deposits in, upon, or under the
following described lands in Campbell County, Wyoming:
T. 52 N., R. 72 W., 6th P.M., Wyoming T. 51 N., R. 72 W., 6th P.M., Wyoming
------------------------------------- -------------------------------------
Sec. 3: Lots 9, 10, 15-18; Sec. 31: Lots 19, 20.
Sec. 4: Lots 5, 6, 7 (E 1/2, E 1/2SW)
9 (S 1/2N 1/2, S 1/2), 10-20;
Sec. 5: Lots 8-19;
Sec. 6: Lots 8-22;
Sec. 9: Lots 1-15, SWNW;
Sec. 10: Lots 1-16;
Sec. 11: Lots 1-16;
Sec. 14: Lots 1-16;
Sec. 15: Lots 1-12;
<PAGE>
WYW5036
Page 2
Containing 5,001.340 acres, more or less, together with the right to construct
such works, buildings, plants, structures, equipment and appliances and the
right to use such on-lease rights-of-way which may be necessary and convenient
in the exercise of the rights and privileges granted, subject to the conditions
herein provided.
PART II. TERMS AND CONDITIONS
Sec. 1. (a) RENTAL RATE - Lessee shall pay lessor rental annually and in
advance for each acre or fraction thereof during the continuance of the lease at
the rate of $3.00 for each lease year.
(b) RENTAL CREDITS - Rental shall not be credited against either production or
advance royalties for any year.
Sec. 2. (a) PRODUCTION ROYALTIES - The royalty shall be 12 1/2 per cent of the
value of the coal produced by strip or auger methods and 8 per cent of the value
of the coal produced by underground mining methods. The value of the coal shall
be determined as set forth in 43 CFR 3480. Royalties are due to lessor the
final day of the month succeeding the calendar month in which the royalty
obligation accrues.
(b) ADVANCE ROYALTIES - Upon request by lessee, the Authorized Officer may
accept, for a total of not more than 10 years, the payment of advance royalties
in lieu of continued operation, consistent with the regulations. The advance
royalty shall be based on a percent of the value of a minimum number of tons
determined in the manner established by the advance royalty regulations in
effect at the time the lessee requests approval to pay advance royalties in lieu
of continued operation.
Sec. 3. BONDS - Lessee shall maintain in the proper office a lease bond in the
amount of $2,192,000. The Authorized Officer may required an increase in this
amount when additional coverage is determined appropriate.
Sec. 4. DILIGENCE - This lease is subject to the conditions of diligent
development and continued operation, except that these conditions are excused
when operations under the lease are interrupted by strikes, the elements, or
casualties not attributable to the lessee. The lessor, in the public interest,
may suspend the condition of continued operation upon payment of advance
royalties in accordance with the regulations in existence at the time of the
suspension. Lessee's failure to produce coal in commercial quantities at the
end of 10 years shall terminate the lease. If not submitted already, lessee
shall submit an operation and reclamation plan pursuant to Section 7 of the Act
<PAGE>
WYW5036
Page 3
no later than 3 years after the effective date of this lease readjustment.
The lessor reserves the power to assent to or under the suspension of the terms
and conditions of this lease in accordance with, inter alia, Section 39 of the
Mineral Leasing Act, 30 U.S.C. 209.
Sec. 5. LOGICAL MINING UNIT (LMU) - Either upon approval by the lessor of the
lessee's application or at the direction of the lessor, this lease shall become
an LMU or part of an LMU, subject to the provisions set forth in the
regulations.
The stipulation established in an LMU approval in effect at the time of LMU
approval will supersede the relevant inconsistent terms of this lease so long as
the lease remains committed to the LMU. If the LMU of which this lease is a
part is dissolved, the lease shall then be subject to the lease terms which
would have been applied if the lease had not been included in an LMU.
Sec. 6. DOCUMENTS, EVIDENCE AND INSPECTION - At such times and in such form as
lessor may prescribe, lessee shall furnish detailed statements showing the
amounts and quality of all products removed and sold from the lease, the
proceeds therefrom, and the amount used for production purposes or unavoidably
lost.
Lessee shall keep open at all reasonable times for the inspection of any duly
Authorized Officer of the lessor, the leased premises and all surface and
underground improvements, works, machinery, ore stockpits, equipment, and all
books, accounts, maps and records relative to operations, surveys, or
investigations on or under the leased lands.
Lessee shall allow lessor access to and copying of documents reasonably
necessary to verify lessee compliance with terms and conditions of the lease.
While this lease remains in effect, information obtained under this section
shall be closed to inspection by the public in accordance with the Freedom of
Information Act (5 U.S.C. 552).
Sec. 7. DAMAGES TO PROPERTY AND CONDUCT OF OPERATIONS - Lessee shall comply at
its own expense with all reasonable orders of the Secretary, respecting diligent
operations, prevention of waste, and protection of other resources.
Lessee shall not conduct exploration operations, other than casual use, without
an approved exploration plan. All exploration plans prior to the commencement
of mining operations within an approved mining permit area shall be submitted to
the Authorized Officer.
<PAGE>
WYW5036
Page 4
Lessee shall carry on all operations in accordance with approved methods and
practices as provided in the operating regulations, having due regard for the
prevention of injury to life, health, or property, and prevention of waste,
damage, or degradation to any land, air, water, cultural, biological, visual,
and other resources, including mineral deposits and formations of mineral
deposit not leased hereunder, and to other land uses or users. Lessee shall
take measures deemed necessary by lessor to accomplish the intent of this lease
term. Such measures may include, but are not limited to, modification to
proposed siting or design of facilities, timing of operations, to itself the
right to lease, sell or otherwise dispose of the surface or other mineral
deposits in the lands and the right to continue existing uses and to authorized
future uses upon or in the leased lands, including issuing leases for minerals
deposits not covered hereunder, and approving easements or rights-of-way.
Lessor shall condition such uses to prevent unnecessary or unreasonable
interference with rights of lessee as may be consistent with concepts of
multiple use and multiple mineral development.
Sec. 8. PROTECTION OF DIVERSE INTEREST, AND EQUAL OPPORTUNITY -Lessee shall:
pay when due all taxes legally assessed and levied under the laws of the State
or the United States; accord all employees complete freedom of purchase; pay all
wages at least twice each month in lawful money of the United States; maintain a
safe working environment in accordance with standard industry practices;
restrict the workday to not more than 8 hours in any one day for underground
workers except in emergencies; and take measures necessary to protect the health
and safety of the public. No person under the age of 16 years shall be employed
in any mine below the surface. To the extent that laws of the State in which
the lands are situated are more restrictive than the provisions in this
paragraph, then the State laws apply.
Lessee will comply with all provisions of Executive Order No. 11246 of September
24, 1965, as amended, and the rules, regulations, and relevant orders of the
Secretary of Labor. Neither lessee nor lessee's subcontractors shall maintain
segregated facilities.
Sec. 9. (a) TRANSFERS
XX This lease may be transferred in whole or in part to any person,
association or corporation qualified to hold such lease interest.
[ ] This lease may be transferred in whole or in part to another public body,
or to a person who will mine the coal on behalf of, and for the use of, the
public body or to a person who for the limited purpose of creating a
security interest in favor of a lender agrees to be obligated to mine the
coal on behalf of the public body.
<PAGE>
WYW5036
Page 5
[ ] This lease may only be transferred in whole or in part to another small
business qualified under 13 CFR 121.
Transfers of record title, working or royalty interest must be approved in
accordance with the regulations.
(b) RELINQUISHMENT - The lessee may relinquish in writing at any time all
rights under this lease or any portion thereof as provided in the regulations.
Upon lessor's acceptance of the relinquishment, lessee shall be relieved of all
future obligations under the lease or the relinquished portion thereof,
whichever is applicable.
Sec. 10 DELIVERY OF PREMISES, REMOVAL OF MACHINERY, EQUIPMENT, ETC. - At such
time as all portions of this lease are returned to lessor, lessee shall deliver
up to lessor the land leased, underground timbering, and such other supports and
structures necessary for the preservation of the mine workings on the leased
premises or deposits and place all workings in condition for suspension or
abandonment. Within 180 days thereof, lessee shall remove from the premises all
other structures, machinery, equipment, tools, and materials that it elects to
or as required by the Authorized Officer. Any such structures, machinery,
equipment, tools and materials remaining on the leased lands beyond 180 days or
approved extension thereof, shall become the property of the lessor, but lessee
shall either remove any or all such property or shall continue to be liable for
the cost of removal and disposal in the amount actually incurred by the lessor.
If the surface is owned by third parties, lessor shall waive the requirement for
removal, provided the third parties do not object to such waiver. Lessee shall,
prior to the termination of bond liability or at any other time when required
and in accordance with all applicable laws and regulations, reclaim all lands
the surface of which has been disturbed, dispose of all debris or solid waste,
repair the offsite and onsite damage caused by lessee's activity or activities
incidental thereto, and reclaim access roads or trails.
Sec. 11. PROCEEDINGS IN CASE OF DEFAULT - If lessee fails to comply with
applicable laws, existing regulations, or the terms, conditions and stipulations
of this lease, and the noncompliance continues for 30 days after written notice
thereof, this lease shall be subject to cancellation by the lessor only by
judicial proceedings. This provision shall not be construed to prevent the
exercise by lessor of any other legal and equitable remedy, including waiver of
the default. Any such remedy or waiver shall not prevent later cancellation for
the same default occurring at any other time.
Sec. 12. HEIRS AND SUCCESSORS-IN-INTEREST - Each obligation of this lease shall
extend to and be binding upon, and every benefit hereof shall inure to, the
heirs, executors, administrators, successors, or assigns of the respective
parties hereto.
<PAGE>
WYW5036
Page 6
Sec. 13. INDEMNIFICATION - Lessee shall indemnify and hold harmless the
United States from any and all claims arising out of the lessee's activities and
operations under this lease.
Sec. 14. SPECIAL STATUTES - This lease is subject to the Federal Water
Pollution Control Act (33 U.S.C. 1151-1175), the Clean Air Act (42 U.S.C. 1857,
et. seq.), and to all other applicable laws pertaining to exploration
activities, mining operations and reclamation, including the Surface Mining
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et. seq.).
Sec. 15. SPECIAL STIPULATIONS - In addition to observing the general
obligations and standards of performance set out in the current regulations, the
lessee shall comply with and be bound by the following special stipulations.
These stipulations are also imposed upon the lessee's agents and employees.
The failure or refusal of any of these persons to comply with these stipulations
shall be deemed a failure of the lessee to comply with the terms of the lease.
The lessee shall require his agents, contractors and subcontractors involved in
activities concerning this lease to include these stipulations in the contracts
between and among them. These stipulations may be revised or amended, in
writing, by the mutual consent of the lessor and the lessee at any time to
adjust to changed conditions or to correct an oversight.
(a) CULTURAL RESOURCES -
(1) Before undertaking any activities that may disturb the surface of the
leased lands, the lessee shall conduct a cultural resource intensive field
inventory in a manner specified by the Authorized Officer of the BLM or of
the surface managing agency, if different, on portions of the mine plan
area and adjacent areas, or exploration plan area, that may be adversely
affected by lease-related activities and which were not previously
inventoried at such a level of intensity. The inventory shall be conducted
by a qualified professional cultural resource specialist (i.e.,
archeologist, historian, historical architect, as appropriate), approved by
the Authorized Officer of the surface managing agency (BLM if the surface
is privately owned), and a report of the inventory and recommendations for
protecting any cultural resources identified shall be submitted to the
Assistant Director of the Western Support Center of the Office of Surface
Mining, the Authorized Officer of the BLM, if activities are associated
with coal exploration outside an approved mining permit area (hereinafter
called Authorized Officer), and the Authorized Officer of the surface
managing agency, if different. The lessee shall undertake measures, in
accordance with instructions from the Assistant Director, or Authorized
Officer, to protect cultural resources on the leased lands.
<PAGE>
WYW5036
Page 7
The lessee shall not commence the surface disturbing activities until
permission to proceed is given by the Assistant Director or Authorized
Officer.
(2) The lessee shall protect all cultural resource properties within the
lease area from lease-related activities until the cultural resource
mitigation measures can be implemented as part of an approved mining and
reclamation plan or exploration plan.
(3) The cost of conducting the inventory, preparing reports, and carrying
out mitigation measures shall be borne by the lessee.
(4) If cultural resources are discovered during operations under this
lease, the lessee shall immediately bring them to the attention of the
Assistant Director or Authorized Officer, or the Authorized Officer of the
surface managing agency, if the Assistant Director is not available. The
lessee shall not disturb such resources except as may be subsequently
authorized by the Assistant Director or Authorized Officer.
Within two (2) working days of notification, the Assistant Director or
Authorized Officer will evaluate or have evaluated any cultural resources
discovered and will determine if any action may be required to protect or
preserve such discoveries. The cost of data recovery for cultural
resources discovered during lease operations shall be borne by the surface
managing agency unless otherwise specified by the Authorized Officer of the
BLM or of the surface managing agency, if different.
(5) All cultural resources shall remain under the jurisdiction of the
United States until ownership is determined under applicable law.
(b) PALEONTOLOGICAL RESOURCES - If paleontological resources, either large and
conspicuous, and/or of significant scientific value are discovered during
construction, the find will be reported to the Authorized Officer immediately.
Construction will be suspended within 250 feet of said find. An evaluation of
the paleontological discovery will be made by a BLM approved professional
paleontologist within five (5) working days, weather permitting, to determine
the appropriate action(s) to prevent the potential loss of any significant
paleontological value. Operations within 250 feet of such discovery will not be
resumed until written authorization to proceed is issued by the Authorized
Officer. The lessee will bear the cost of any required paleontological
appraisals, surface collection of fossils, or salvage of any large conspicuous
fossils of significant scientific interest discovered during the operations.
<PAGE>
WYW5036
Page 8
(c) MULTIPLE MINERAL DEVELOPMENT - Operations will not be approved which, in
the opinion of the Authorized Officer, would unreasonably interfere with the
orderly development and/or production from a valid existing mineral lease issued
prior to this one for the same lands.
(d) OIL AND GAS/COAL RESOURCES - The BLM realizes that coal mining operations
conducted on Federal coal leases issued within producing oil and gas fields may
interfere with the economic recovery of oil and gas; just as Federal oil and gas
leases issued in a Federal coal lease area may inhibit coal recovery. BLM
retains the authority to alter and/or modify the resource recovery and
protection plans for coal operations and/or oil and gas operations on those
lands covered by Federal mineral leases so as to obtain maximum resource
recovery.
(e) RESOURCE RECOVERY AND PROTECTION - Notwithstanding the approval of a
resource recovery and protection plan (R2P2) by the BLM, lessor reserves the
right to seek damages against the operator/lessee in the event (i) the
operator/lessee fails to achieve maximum economic recovery (MER) (as defined at
43 CFR 3480.0-5(21)) of the recoverable coal reserves or (ii) the
operator/lessee is determined to have caused a wasting of recoverable coal
reserves. Damages shall be measured on the basis of the royalty that would have
been payable on the wasted or unrecovered coal.
The parties recognize that under an approved R2PS, conditions may require a
modification by the operator/lessee of that plan. In the event a coalbed or
portion thereof is not to be mined or is rendered unmineable by the operation,
the operator/lessee shall submit appropriate justification to obtain approval by
the Authorized Officer (AO) to leave such reserves unmined. Upon approval by
the AO, such coalbeds or portions thereof shall not be subject to damages as
described above. Further, nothing in this section shall prevent the
operator/lessee from exercising its right to relinquish all or portion of the
lease as authorized by statute and regulation.
In the event the AO determines that the R2P2, as approved, will not attain MER
as the result of changed conditions, the AO will give proper notice to the
operator/lessee as required under applicable regulations. The AO will order a
modification if necessary, identifying additional reserves to be mined in order
to attain MER. Upon a final administrative or judicial ruling upholding such an
ordered modification, any reserves left unmined (wasted) under the plan will be
subject to damages as described in the first paragraph under this section.
Subject to the right to appeal hereinafter set forth, payment of the value of
the royalty on such unmined recoverable coal reserves shall become due and
payable upon determination by the AO that the coal reserves have been rendered
unmineable or at
<PAGE>
WYW5036
Page 9
such time that the operator/lessee has demonstrated an unwillingness to extract
the coal.
The BLM may enforce this provision either by issuing a written decision
requiring payment of the MMS demand for such royalties, or by issuing a notice
of non-compliance. A decision or notice of non-compliance issued by the lessor
that payment is due under this stipulation is appealable as allowed by law.
(f) PUBLIC LAND SURVEY PROTECTION - The lessee will protect all survey
monuments, witness corners, reference monuments, and bearing trees against
destruction, obliteration, or damage during operations on the lease areas.
If any monuments, corners or accessories are destroyed, obliterated, or
damaged by this operation, the lessee will hire an appropriate county
surveyor or registered land surveyor to reestablish or restore the monuments,
corners, or accessories at the same location, using surveying procedures in
accordance with the "Manual of Surveying Instructions for the Survey of the
------------------------------------------------------
Public Lands of the United States." The survey will be recorded in the
---------------------------------
appropriate county records, with a copy sent to the Authorized Officer.
<PAGE>
UNITED STATES Serial Number
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT WYW5036
----------------------
BOND/*/ UNDER LEASE FOR Bond Number
MINING COAL DEPOSITS
===============================================================================
Know All Men By These Presents, that
of , as principal,
and
of , as suret ,
are held and firmly bound unto the United States in the sum of dollars
($ ), lawful money of the United States, for the payment of
which, well and truly to be made, we bind ourselves, and each of us, and each of
our heirs, executors, administrators, and successors, jointly and severally,
firmly by these presents.
The conditions of this obligation are such, that whereas the said principal
entered into a lease of the lands described therein and upon conditions therein
expressed, which lease bears the above serial number.
Now Therefore, if the said principal, his heirs, executors, administrators, or
successors, shall faithfully carry out the obligations and observe the
requirements of said lease, and shall duly keep, perform, and abide by each and
every term and provision of said lease as therein stipulated and agreed, then
this obligation shall be null and void; otherwise to remain in full force and
effect.
Signed on this day of , 19 , in the presence of:
- ------------------------------------ ------------------------------------
(Signature of Witness) (Signature of Principal)
- ------------------------------------ ------------------------------------
(Address of Witness) (Address of Principal)
- ------------------------------------ ------------------------------------
(Signature of Witness) (Signature of Surety)
- ------------------------------------ ------------------------------------
(Address of Witness) (Address of Surety)
- ------------------------------------ ------------------------------------
(Signature of Witness) (Signature of Surety)
- ------------------------------------ ------------------------------------
(Address of Witness) (Address of Surety)
===============================================================================
/*/ This form of bond may be used in connection with coal, phosphate, and
sodium leases, Act of/ February 25, 1920, as amended (30 U.S.C. 181 et
seq./); potassium leases, Act of February 7, 1927, as amended (30 U.S.C.
281 et seq./); sulphur leases, Act of April 17, 1926, as amended (30 U.S.C.
271 et seq./); all such leases involving acquired lands, Act of August 7,
1947 (30 U.S.C. 351), and asphalt leases, Act of June 28, 1944 (58 Stat.
463, 483-485),by inserting the particular mineral applicable in the space
provided therefor. If this bond is executed by a corporation, it must bear
the corporate seal.
<PAGE>
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
INFORMATION ON TAKING APPEALS TO THE BOARD OF LAND APPEALS
DO NOT APPEAL UNLESS
1. This decision is adverse to you,
AND
2. You believe it is incorrect
IF YOU APPEAL, THE FOLLOWING PROCEDURES MUST BE FOLLOWED
1. NOTICE OF APPEAL.................. Within 30 days file a Notice of Appeal
in the office which issued this decision
(see 43 CFR Secs. 4.411 and 4.413). You
may state your reasons for appealing, if
you desire.
2. WHERE TO FILE
NOTICE OF APPEAL................ Wyoming State Office, Bureau of Land
Management 5353 Yellowstone Rd., P.O.
Box 1828 Cheyenne, Wyoming 82009/82003-
1828
SOLICITOR
ALSO COPY TO.................... The Regional Solicitor, Rocky Mountain
Region U.S. Department of the Interior
755 Parfet Street, Suite 151 Lakewood,
CO 80215
3. STATEMENT OF REASONS.............. Within 30 days after filing the Notice
of Appeal, file a complete statement of
the reasons why you are appealing. This
must be filed with the United States
Department of the Interior. Office of
the Secretary, Board of Land Appeals,
4015 Wilson Blvd., Arlington, Virginia
22203 (see 43 CFR Sec. 4.412 and 4.413).
If you fully stated your reasons for
appealing when filing the Notice of
Appeal, no additional statement is
necessary.
SOLICITOR
ALSO COPY TO.................... The Regional Solicitor, Rocky Mountain
Region U.S. Department of the Interior
755 Parfet Street, Suite 151 Lakewood,
CO 80215
4. ADVERSE PARTIES................... Within 15 days after each document is
filed, each adverse party named in the
decision and the Regional Solicitor or
Field Solicitor having jurisdiction over
the State in which the appeal arose must
be served with a copy of: (a) the Notice
of Appeal, (b) the Statement of Reasons,
and (c) any other documents filed (see
43 CFR Sec. 4.413). Service will be made
upon the Associate Solicitor, Division
of Energy and Resources, Washington,
D.C. 20240, instead of the Field or
Regional Solicitor when appeals are
taken from decisions of the Director
(WO-100).
5. PROOF OF SERVICE.................. Within 15 days after any document is
served on an adverse party, file proof
of that service with the United States
Department of the Interior, Office of
the Secretary, Board of Land Appeals,
4015 Wilson Blvd., Arlington, Virginia
22203. This may consist of a certified
or registered mail Return Receipt Card"
signed by the adverse party (see 43 CFR
Sec. 4.401(c)(2)).
Unless these procedures are followed your appeal will be subject to dismissal
(see 43 CFR Sec. 4.402). Be certain that all communications are identified by
serial number of the case being appealed.
NOTE: A document is not filed until it is actually received in the proper
office (see 43 CFR Sec. 4.401(a))
<PAGE>
SUBPART 1821.2 -- OFFICE HOURS; TIME AND PLACE FOR FILING
<TABLE>
<S> <C>
Sec. 1821.2-1 Office hours of State Sec. 1821.2-2(d) Any document required or
Offices. (a) State Offices and the permitted to be filed under the regulations
Washington Office of the Bureau of Land of this chapter, which is received in the
Management are open to the public for the State Office or the Washington Office,
filing of documents and inspection of either in the mail or by personal delivery
records during the hours specified in when the office is not open to the public
this paragraph on Monday through Friday shall be deemed to be filed as of the day
of each week, with the exception of those and hour the office next opens to the
days where the office may be closed public.
because of a national holiday or
Presidential or other administrative (e) Any document required by law,
order. The hours during which the State regulation, or decision to be filed within a
Offices and the Washington Office are stated period, the last day of which falls
open to the public for the filing of on a day the State Office or the Washington
documents and inspection of records are Office is officially closed, shall be deemed
from 9 a.m. to 4 p.m., standard time or to be timely filed if it is received in the
daylight saving time, whichever is in appropriate office on the next day the
effect at the city in which each office office is open to the public.
is located.
</TABLE>
* * * * *
This decision may be appealed to the Interior Board of Land Appeals, Office of
the Secretary, in accordance with the regulations contained in 43 CFR, Part 4.
If an appeal is taken, your notice of appeal must be filed in this office (at
the above address) within 30 days from receipt of this decision. The appellant
has the burden of showing that the decision appealed from is in error.
If you wish to file a petition (pursuant to regulation 43 CFR 4.21 (58 FR 4939,
January 19, 1993) (request) for a stay (suspension) of the effectiveness of this
decision during the time that your appeal is being reviewed by the Board, the
petition for a stay must accompany your notice of appeal. A petition for a stay
is required to show sufficient justification based on the standards listed
below. Copies of the notice of appeal and petition for a stay must also be
submitted to each party named in this decision and to the Interior Board of Land
Appeals and to the appropriate Office of the Solicitor (see 43 CFR 4.413) at the
same time the original documents are filed with this office. If you request a
stay, you have the burden of proof to demonstrate that a stay should be granted.
Standard for Obtaining a Stay
-----------------------------
Except as otherwise provided by law or other pertinent regulation, a petition
for a stay of a decision pending appeal shall show sufficient justification
based on the following standards:
(1) The relative harm to the parties if the stay is granted or denied,
(2) The likelihood of the appellant's success on the merits,
(3) The likelihood of immediate and irreparable harm if the stay is not
granted, and
(4) Whether the public interest favors granting the stay.
<PAGE>
EXHIBIT 10.6
United States Department of the Interior
BUREAU OF LAND MANAGEMENT In Reply Refer To:
Wyoming State Office
P.O. Box 1828 3452
Cheyenne, Wyoming 82003-1828 WYW3397
(921MLove)
PHONE NO: 307-775-6258
FAX NO: 307-775-6203
D E C I S I O N
Caballo Coal Company :
Attn: Victor E. Garber : Federal Coal Lease
Caller Box 3037 : Caballo Mine
Gillette, Wyoming 82717-3037 :
Partial Relinquishment Withdrawn;
--------------------------------
Partial Relinquishments Accepted
--------------------------------
On February 17, 1998, we received a partial relinquishment of Federal coal lease
WYW3397 as to the following lands:
T. 48 N., R.71 W., 6th P.M., Wyoming
Sec. 14: Lots 2 (S2), 3 (S2), 4 (SE), 5 (E2),
6, 7, 8 (W2), 9-11, 12 (E2),
13 (SW & E2), 14-16;
Sec. 15: Lots 15 (SE), 16 (S2);
Sec. 22: Lots 1, 2 (E2), 7 (E2), 8, 9,
10 (E2), 15 (E2), 16;
Sec. 27: Lots 1, 2 (E2), 7 (E2), 8.
Containing 856.515 acres, more or less.
Thereafter, on March 6, 1998, we received an additional partial relinquishment
of the lease as to the following lands:
T. 48 N., R. 70 W., 6th P.M., Wyoming
Sec. 18: Lots 15-18;
T. 48 N., R. 71 W., 6th P.M., Wyoming
Sec. 12: Lots 13-15;
Sec. 13: Lots 3-6.
Containing 442.370 acres, more or less.
May 7, 1998, we received correspondence from Caballo Coal Company withdrawing
the above-described partial relinquishment filed March 6, 1998.
The Casper District Office has determined that the public interest shall not be
impaired by acceptance of the relinquishments, as maximum economic
<PAGE>
2
recovery of the recoverable resource shall be achieved and adequate reclamation
has occurred in accordance with the policy outlined in Wyoming Instruction
Memorandum No. 98-35. That office has recommended that the partial
relinquishment be accepted.
Therefore, the partial relinquishment of Federal coal lease WYW3397 is hereby
accepted effective February 17, 1998, the date the relinquishment was filed.
Acceptance of this partial relinquishment does not relieve Caballo Coal Company,
or its successors, from complying with the reclamation requirements of 30 CFR
Chapter VII, Subchapter K, or an approved State program. (43 CFR 3480.0-6(d)(8))
The following-described lands are remaining in Federal coal lease WYW3397:
T. 48 N., R. 70 W., 6th P.M., Wyoming
Sec. 7: Lots 5-20;
Sec. 18: Lots 5-12, 15-18;
T. 48 N., R. 71 W., 6th P.M., Wyoming
Sec. 11: Lots 1-16;
Sec. 12: Lots 1-16;
Sec. 13: Lots 3-7;
Sec. 14: Lots 1, 2 (N2), 3 (N2), 4 (N2 & SW),
5 (W2), 8 (E2), 12 (W2), 13 (NW);
Sec. 15: Lots 1-14, 15 (N2 & SW), 16 (N2);
Sec. 21: Lots 1, 2, 7-10, 15, 16:
Sec. 22: Lots 2 (W2), 3-6, 7 (W2), 10 (W2),
11-14, 15 (W2);
Sec. 27: Lots 2 (W2), 3-6, 7 (W2);
Sec. 28: Lots 1, 2, 7, 8.
Containing 4,456.495 acres, more or less.
Attached to this Decision is an acreage calculation worksheet, which lists the
acreage amounts for the lands remaining in the lease.
The new rental amount due each year for this lease beginning December 26, 1998,
will be $13,371.00.
If you have any questions concerning this matter, please contact
Mavis Love in the Minerals and Lands Authorization Group at
307-775-6258.
Alan R. Pierson
State Director
Attachment
<PAGE>
3
cc:
DEQ, Land Quality Division, 122 West 25th Street, Cheyenne, WY 82002
DEQ, Land Quality Division, Attn: Bob Giurgevich, 1043 Coffeen Avenue,
Suite D, Sheridan, WY 82801
Office of Surface Mining, Attn: Mr. Peter Rutledge, Western
Regional Coordinating Center, 1999 Broadway, Suite 3320,
Denver, CO 80202-5733
MMS, RMP, Reporting & Valuation Division, Solid Minerals
Reporting Staff, P.O. Box 5760, MS3153, Denver CO 80217
WO (320), Room 501, LS
DM, Casper
<PAGE>
ACREAGE CALCULATIONS FOR LANDS REMAINING IN
FEDERAL COAL LEASE WYW3397
AFTER ACCEPTANCE OF PARTIAL RELINQUISHMENT
EFFECTIVE FEBRUARY 17, 1998
T. 48 N., R. 70 W., 6th P.M. Wyoming
- ------------------------------------
Sec. 7: Lots 5-20 637.850
Sec. 18: Lots 5-12, 15-18 454.540
T. 48 N., r. 71 W., 6th P.M. Wyoming
- --------------------------------------
Sec. 11: Lots 1-16 641.770
Sec. 12: Lots 1-16 650.980
Sec. 13: Lots 3-6 164.130
Sec. 14: Lot 1 40.200
Lot 2 (N2) 20.095
Lot 3 (N2) 20.115
Lot 4 (N2 & SW) 30.165
Lot 5 (W2) 20.105
Lot 8 (E2) 20.035
Lot 12 (W2) 20.105
Lot 13 (NW) 10.050
Sec. 15: Lots 1-14 561.300
Lots 15 (N2 & SW) 30.120
Lot 16 (N2) 20.075
Sec. 21: Lots 1, 2, 7-10, 15, 16; 324.150
Sec. 22: Lot 2 (W2) 20.215
Lots 3-6 161.830
Lot 7 (W2) 20.240
Lot 10 (W2) 20.270
Lots 11-14 162.330
Lot 15 (W2) 20.295
Sec. 27: Lot 2 (W2) 20.275
Lots 3-6 161.970
Lot 7 (W2) 20.245
Sec. 28: Lots 1, 2, 7, 8 162.040
TOTAL ACREAGE 4,456.495
<PAGE>
5
UNITED STATES Serial Number
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT WYW3397
COAL LEASE READJUSTMENT Date Lease Issued
December 1, 1967
=================================================================
PART 1: LEASE RIGHTS GRANTED
This lease, entered into by and between the United States of America,
hereinafter called the lessor, through the Bureau of Land Management, and (Name
and Address)
Caballo Coal Company
Caller Box 3037
Gillette, Wyoming 82717
hereinafter called lessee, is readjusted. effective December 1, 1997, for a
period of 10 years and for so long thereafter as coal is produced in commercial
quantities from the leased lands, subject to readjustment of lease terms at the
end of 10-year period.
Sec. 1. This lease readjustment is subject to the terms and provisions of the:
XX Mineral Lands Leasing Act of 1920, Act of February 25, 1920, as amended, 41
Stat. 437, 30 U.S.C. 181-287, hereinafter referred to as the Act;
[ ] Mineral Leasing Act for Acquired Lands, Act of August 7, 1947, 61 Stat.
913, 30 U.S.C. 351-359;
and to the regulations and formal orders of the Secretary of the Interior which
are now or hereafter in force, when not inconsistent with the express and
specific provisions herein.
Sec. 2. Lessor, in consideration of any rents and royalties to be paid, and the
conditions and covenants to be observed as herein set forth, hereby grants to
lessee the exclusive right and privilege to drill for, mine, extract, remove or
otherwise process and dispose of the coal deposits in, upon, or under the
following described lands in Campbell County, Wyoming:
T. 48 N., R. 70 W., 6th P.M., Wyoming T. 48 N., R. 71 W., 6th P.M., Wyoming
- ------------------------------------- -------------------------------------
Sec. 7: Lots 5-20; Sec. 11: Lots 1-16;
Sec. 18: Lots 5-12, 15-18 Sec. 12: Lots 1-16;
Sec. 13: Lots 3-6;
Sec. 14: Lots 1-16;
Sec. 15: Lots 1-16;
<PAGE>
Sec. 21: Lots 1, 2, 7-10, 15, 16;
Sec. 22: Lots 1-16;
Sec. 27: Lots 1-8;
Sec. 28: Lots 1, 2, 7, 8.
Containing 5,313.01 acres, more or less, together with the right to construct
such works, buildings, plants, structures, equipment and appliances and the
right to use such on-lease rights-of-way which may be necessary and convenient
in the exercise of the rights and privileges granted, subject to the conditions
herein provided.
PART II. TERMS AND CONDITIONS
Sec. 1. (a) RENTAL RATE - Lessee shall pay lessor rental annually and in advance
for each acre or fraction thereof during the continuance of the lease at the
rate of $3.00 for each lease year.
(b) RENTAL CREDITS - Rental shall not be credited against either production or
advance royalties for any year.
Sec. 2. (a) PRODUCTION ROYALTIES - The royalty shall be 12 1/2 per cent of the
value of the coal produced by strip or auger methods and 8 per cent of the value
of the coal produced by underground mining methods. The value of the coal shall
be determined as set forth in 43 CFR 3480. Royalties are due to lessor the final
day of the month succeeding the calendar month on which the royalty obligation
accrues;
(b) ADVANCE ROYALTIES - Upon request by lessee, the Authorized Officer may
accept, for a total of not more than 10 years, the payment of advance royalties
in lieu of continued operation, consistent with the regulations. The advance
royalty shall be based on a percent of the value of a minimum number of tons
determined in the manner established by the advance royalty regulations in
effect at the time the lessee requests approval to pay advance royalties in lieu
of continued operation.
Sec. 3. BONDS - Lessee shall maintain in the proper office a lease bond in the
amount of $2,969,000. The Authorized Officer may required an increase in this
amount when additional coverage is determined appropriate.
Sec. 4. DILIGENCE - This lease is subject to the conditions of diligent
development and continued operation, except that these conditions are excused
when operations under the lease are interrupted by strikes, the elements, or
casualties not attributable to the lessee. The lessor, in the public interest,
may suspend the condition of continued operation upon payment of advance
royalties in accordance with the regulations in existence at the time of the
suspension. Lessee's failure to produce coal in commercial quantities at the end
of 10 years shall terminate the lease. If not submitted already, lessee shall
submit an operation and reclamation plan pursuant to Section 7 of the Act no
later than 3 years after the effective date of this lease readjustment.
The lessor reserves the power to assent to or under the suspension of the terms
and conditions of this lease in accordance with, inter alia, Section 39 of the
Mineral Leasing Act, 30 U.S.C. 209.
Sec. 5. LOGICAL MINING UNIT (LMU) - Either upon approval by the lessor of the
lessee's application or at the direction of the lessor, this lease shall become
an LMU or part of an LMU, subject to the provisions set forth in the
regulations.
The stipulations established in an LMU approval in effect at the time of LMU
approval will supersede the relevant inconsistent terms of this lease so long as
the lease remains committed to the LMU. If the LMU of which this lease is a part
is dissolved, the lease shall then be subject to the lease terms which would
have been applied if the lease had not been included in an LMU.
Sec. 6. DOCUMENTS, EVIDENCE AND INSPECTION -At such times and in such form as
lessor may prescribe, lessee shall furnish detailed statements showing the
amounts and quality of all products removed and sold from the lease, the
proceeds therefrom, and the amount used for production purposes or unavoidably
lost.
Lessee shall keep open at all reasonable times for the inspection of any duly
Authorized Officer of the lessor, the leased premises and all surface and
underground improvements, works, machinery, ore stockpits, equipment, and all
books, accounts, maps and records relative to operations, surveys, or
investigations on or under the leased lands.
Lessee shall allow lessor access to and copying of documents reasonably
necessary to verify lessee compliance with terms and conditions of the lease.
While this lease remains in effect, information obtained under this section
shall be closed to inspection by the public in accordance with the Freedom of
Information Act (5 U.S.C. 552).
Sec. 7. DAMAGES TO PROPERTY AND CONDUCT OF OPERATIONS - Lessee shall comply at
its own expense with all reasonable orders of the Secretary, respecting diligent
operations, prevention of waste, and protection of other resources.
Lessee shall not conduct exploration operations, other than casual use, without
an approved exploration plan. All exploration plans prior to the commencement of
mining operations within an approved mining permit area shall be submitted to
the Authorized Officer.
<PAGE>
WYW3397
Page 3
Lessee shall carry on all operations in accordance with approved methods and
practices as provided in the operating regulations, having due regard for the
prevention of injury to life, health, or property, and prevention of waste,
damage, or degradation to any land, air, water, cultural, biological, visual,
and other resources, including mineral deposits and formations of mineral
deposit not leased hereunder, and to other land uses or users. Lessee shall take
measures deemed necessary by lessor to accomplish the intent of this lease term.
Such measures may include, but are not limited to, modification to proposed
siting or design of facilitiesto itself the right to lease, sell or otherwise
dispose of the surface or other mineral deposits in the lands and the right to
continue existing uses and to authorized future uses upon or in the leased
lands, including issuing leases for minerals deposits not covered hereunder, and
approving easements or rights-of-way. Lessor shall condition such uses to
prevent unnecessary or unreasonable interference with rights of lessee as may be
consistent with concepts of multiple use and multiple mineral development.
Sec. 8. PROTECTION OF DIVERSE INTEREST, AND EQUAL OPPORTUNITY - Lessee shall:
pay when due all taxes legally assessed and levied under the laws of the State
or the United States; accord all employees complete freedom of purchase; pay all
wages at least twice each month in lawful money of the United States; maintain a
safe working environment in accordance with standard industry practices;
restrict the workday to not more than 8 hours in any one day for underground
workers except in emergencies; and take measures necessary to protect the health
and safety of the public. No person under the age of 16 years shall be employed
in any mine below the surface. To the extent that laws of the State in which the
lands are situated are more restrictive than the provisions in this paragraph,
then the State laws apply.
Lessee will comply with all provisions of Executive Order No. 11246 of September
24, 1965, as amended, and the rules, regulations, and relevant orders of the
Secretary of Labor. Neither lessee nor lessee's subcontractors shall maintain
segregated facilities.
Sec. 9. (a) TRANSFERS
XX This lease may be transferred in whole or in part to any person,
association or corporation qualified to hold such lease interest.
[ ] This lease may be transferred in whole or in part to another public body,
or to a person who will mine the coal or on behalf of, and for the use of,
the public body and to behalf of, and for the use of, the public body or
to a person who for the limited purpose of creating a security interest in
favor of a lender agrees to be obligated to mine the coal on behalf of the
public body.
[ ] This lease may only be transferred in whole or in part to another small
business qualified under 13 CFR 121.
Transfers of record title, working or royalty interest must be approved in
accordance with the regulations.
(b) RELINQUISHMENT - The lessee may relinquish in writing at any time all rights
under this lease or any portion thereof as provided in the regulations. Upon
lessor's acceptance of the relinquishment, lessee shall be relieved of all
future obligations under the lease or the relinquished portion thereof,
whichever is applicable.
Sec. 10 DELIVERY OF PREMISES, REMOVAL OF MACHINERY, EQUIPMENT, ETC. - At such
times as all portions of this lease are returned to lessor, lessee shall deliver
up to lessor the land leased, underground timbering, and such other supports and
structures necessary for the preservation of the mine workings on the lease
premises or deposits and place all workings in condition for suspension or
abandonment. Within 180 days thereof, lessee shall remove from the premises all
other structures, machinery, equipment, tools, and materials that it elects to
or as required by the Authorized Officer. Any such structures, machinery,
equipment, tools and materials remaining on the leased lands beyond 180 days or
approved extension thereof, shall become the property of the lessor, but lessee
shall either remove any or all such property or shall continue to be liable for
the cost of removal and disposal in the amount actually incurred by the lessor.
If the surface is owned by third parties, lessor shall waive the requirement for
removal, provided the third parties do not object to such waiver. Lessee shall,
prior to the termination of bond liability or at any other time when required
and in accordance with all applicable laws and regulations reclaim all lands the
surface of which has been disturbed, dispose of all debris or solid waste,
repair the offsite and onsite damage caused by lessee's activity or activities
incidental thereto, and reclaim access roads or trails.
Sec. 11. PROCEEDINGS IN CASE OF DEFAULT - If lessee fails to comply with
applicable laws, existing regulations, or the terms, conditions and stipulations
of this lease, and the noncompliance continues for 30 days after written notice
thereof, this lease shall be subject to cancellation by the lessor only by
judicial proceedings. This provision shall not be construed to prevent the
exercise by lessor of any other legal and equitable remedy, including waiver of
the
<PAGE>
WYW3397
Page 4
Sec. 12. HEIRS AND SUCCESSORS-IN-INTEREST -Each obligation of this lease shall
extend to and be binding upon, and every benefit hereof shall inure to, the
heirs, executors, administrators, successors, or assigns of the respective
parties hereto.
Sec. 13. INDEMNIFICATION - Lessee shall indemnify and hold harmless the United
States from any and all claims arising out of the leasee's activities and
operations under this lease.
Sec. 14. SPECIAL STATUTES - This lease is subject to the Federal Water Pollution
Control Act (33 U.S.C. 1151-1175), the Clean Air Act (42 U.S.C. 1957 et. seq.),
and to all other applicable laws pertaining to exploration activities, mining
operations and reclamation, including the surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1201 et. seq.)
Sec. 15. SPECIAL STIPULATIONS
In addition to observing the general obligations and standards of performance
set out in the current regulations, the lessee shall comply with and be bound by
the following special stipulations.
These stipulations are also imposed upon the lessee's agents and employees.
The failure or refusal of any of these persons to comply with these stipulations
shall be deemed a failure of the lessee to comply with the terms of the lease.
The lessee shall require his agents, contractors and subcontractors involved in
activities concerning this lease to include these stipulations in the contracts
between and among them. These stipulations may be revised or amended, in
writing, by the mutual consent of the lessor and the lessee at any time to
adjust to changed conditions or to correct an oversight.
(a) CULTURAL RESOURCES -
(1) Before undertaking any activities that may disturb the surface of the
leased lands, the lessee shall conduct a cultural resource intensive field
inventory in a manner specified by the Authorized Officer of the BLM or of
the surface managing agency, if different, on portions of the mine plan
area and adjacent areas, or exploration plan area, that may be adversely
affected by lease-related activities and which were not previously
inventoried at such a level of intensity. The inventory shall be conducted
by a qualified professional cultural resource specialist (i.e.,
archeologist, historian, historical architect, as appropriate), approved by
the Authorized Officer of the surface managing agency (BLM if the surface
is privately owned), and a report of the inventory and recommendations for
protecting any cultural resources identified shall be submitted to the
Assistant Director of the Western Support Center of the Office of Surface
Mining, the Authorized Officer of the BLM, if activities are associated
with coal exploration outside an approved mining permit
<PAGE>
WYW3397
Page 5
area (hereinafter called Authorized Officer), and the Authorized Officer of
the surface managing agency, if different. The lessee shall undertake
measures, in accordance with instructions from the Assistant Director, or
Authorized Officer, to protect cultural resources on the leased lands. The
lessee shall not commence the surface disturbing activities until
permission to proceed is given by the Assistant Director or Authorized
Officer.
(2) The lessee shall protect all cultural resource properties within the
lease area from lease-related activities until the cultural resource
mitigation measures can be implemented as part of an approved mining and
reclamation or exploration plan.
(3) The cost of conducting the inventory, preparing reports, and carrying
out mitigation measures shall be borne by the lessee.
(4) If cultural resources are discovered during operations under this
lease, the lessee shall immediately bring them to the attention of the
Assistant Director or Authorized Officer, or the Authorized Officer of the
surface managing agency, if the Assistant Director is not available. The
lessee shall not disturb such resources except as may be subsequently
authorized by the Assistant Director or Authorized Officer.
Within two (2) working days of notification, the Assistant Director or
Authorized Officer will evaluate or have evaluated any cultural resources
discovered and will determine if any action may be required to protect or
preserve such discoveries. The cost of data recovery for cultural
resources discovered during lease operations shall be borne by the surface
managing agency unless otherwise specified by the Authorized Officer of the
BLM or of the surface managing agency, if different.
(5) All cultural resources shall remain under the jurisdiction of the
United States until ownership is determined under applicable law.
(b) PALEONTOLOGICAL RESOURCES - If paleontological resources, either large and
conspicuous, and/or of significant scientific value are discovered during mining
operations, the find will be reported to the Authorized Officer immediately.
Mining operations will be suspended within 250 feet of said find. An evaluation
of the paleontological discovery will be made by a BLM approved professional
paleontologist within five (5) working days, weather permitting, to determine
the appropriate action(s) to prevent the potential loss of any significant
paleontological value. Operations within 250 feet of such discovery will not be
resumed until written authorization to proceed is issued by the Authorized
Officer. The lessee will bear the cost of any required paleontological
appraisals, surface collection of fossils, or salvage of any large conspicuous
fossils of significant scientific interest discovered during the operations.
(c) MULTIPLE MINERAL DEVELOPMENT - Operations will not be approved
which, in the opinion of the Authorized Officer, would
<PAGE>
WYW3397
Page 6
unreasonably interfere with the orderly development and/or production from a
valid existing mineral lease issued prior to this one for the same lands.
(d) OIL AND GAS/COAL RESOURCES - The BLM realizes that coal consturciotn
conducted on Federal coal leases issued within producing oil and gas fields may
interfere with the economic recovery of oil and gas; just as Federal oil and gas
leases issued in a Federal coal lease area may inhibit coal recovery. BLM
retains the authority to alter and/or modify the resource recovery and
protection plans for coal operations and/or oil and gas operations on those
lands covered by Federal mineral leases so as to obtain maximum resource
recovery.
(e) RESOURCE RECOVERY AND PROTECTION - Notwithstanding the approval of a
resource recovery and protection plan (R2P2) by the BLM, lessor reserves the
right to seek damages against the operator/lessee in the event (i) the
operator/lessee fails to achieve maximum economic recovery (MER) (as defined at
43 CFR 3480.0-5(21)) of the recoverable coal reserves or (ii) the
operator/lessee is determined to have caused a wasting of recoverable coal
reserves. Damages shall be measured on the basis of the royalty that would have
been payable on the wasted or unrecovered coal.
The parties recognize that under an approved R2P2, conditions may require a
modification by the operator/lessee of that plan. In the event a coalbed or
portion thereof is not to be mined or is rendered unmineable by the operation,
the operator/lessee shall submit appropriate justification to obtain approval by
the Authorized Officer (AO) to leave such reserves unmined. Upon approval by
the AO, such coalbeds or portions thereof shall not be subject to damages as
described above. Further, nothing in this section shall prevent the
operator/lessee from exercising its right to relinquish all or portion of the
lease as authorized by statute and regulation.
In the event the AO determines that the R2P2, as approved, will not attain MER
as the result of changed conditions, the AO will give proper notice to the
operator/lessee as required under applicable regulations. The AO will order a
modification if necessary, identifying additional reserves to be mined in order
to attain MER. Upon a final administrative or judicial ruling upholding such an
ordered modification, any reserves left unmined (wasted) under that plan will be
subject to damages as described in the first paragraph under this section.
Subject to the right to appeal hereinafter set forth, payment of the value of
the royalty on such unmined recoverable coal reserves shall become due and
payable upon determination by the AO that the coal reserves have been rendered
unmineable or at such time that the operator/lessee has demonstrated an
unwillingness to extract the coal.
The BLM may enforce this provision either by issuing a written decision
requiring payment of the MMS demand for such royalties, or by issuing a notice
of non-compliance. A decision or notice of non-compliance issued by the lessor
that payment is due under this stipulation is appealable as allowed by law.
<PAGE>
WYW3397
Page 7
Sec 15. SPECIAL STIPULATIONS, Continued -
(f) PUBLIC LAND SURVEY PROTECTION - The lessee will protect all survey
monuments, witness corners, reference monuments, and bearing trees against
destruction, obliteration, or damage during operations on the lease areas. If
any monuments, corners or accessories are destroyed, obliterated, or damaged by
this operation, the lessee will hire an appropriate county surveyor or
registered land surveyor to reestablish or restore the monuments, corners, or
accessories at the same location, using surveying procedures in accordance with
the "Manual of Surveying Instructions for the Survey of the Public Lands of the
--------------------------------------------------------------------------
United States." The survey will be recorded in the appropriate county records,
- -------------
with a copy sent to the Authorized Officer.
in order to attain MER. Upon a final administrative or judicial ruling
upholding such an ordered modification, any reserves left unmined (wasted) under
that plan will be subject to damages as described in the first paragraph under
this section.
Subject to the right to appeal hereinafter set forth, payment of the value of
the royalty on such unmined recoverable coal reserves shall become due and
payable upon determination by the AO that the coal reserves have been rendered
unmineable or at such time that the operator/lessee has demonstrated an
unwillingness to extract the coal..
The BLM may enforce this provision either by issuing a written decision
requiring payment of the MMS demand for such royalties, or by issuing a notice
of non-compliance. A decision or notice of non-compliance issued by the lessor
that payment is due under this stipulation is appealable as allowed by
<PAGE>
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
INFORMATION ON TAKING APPEALS TO THE BOARD OF LAND APPEALS
DO NOT APPEAL UNLESS
1. This decision is adverse to you,
AND
2. You believe it is incorrect
IF YOU APPEAL, THE FOLLOWING PROCEDURES MUST BE FOLLOWED
1. NOTICE OF APPEAL.................. Within 30 days file a Notice of Appeal
in the office which issued this decision
(see 43 CFR Secs. 4.411 and 4.413). You
may state your reasons for appealing, if
you desire.
2. WHERE TO FILE
NOTICE OF APPEAL................ Wyoming State Office, Bureau of Land
Management 5353 Yellowstone Rd., P.O.
Box 1828 Cheyenne, Wyoming 82009/82003-
1828
SOLICITOR
ALSO COPY TO.................... The Regional Solicitor, Rocky Mountain
Region U.S. Department of the Interior
755 Parfet Street, Suite 151 Lakewood,
CO 80215
3. STATEMENT OF REASONS.............. Within 30 days after filing the Notice
of Appeal, file a complete statement of
the reasons why you are appealing. This
must be filed with the United States
Department of the Interior. Office of
the Secretary, Board of Land Appeals,
4015 Wilson Blvd., Arlington, Virginia
22203 (see 43 CFR Sec. 4.412 and 4.413).
If you fully stated your reasons for
appealing when filing the Notice of
Appeal, no additional statement is
necessary.
SOLICITOR
ALSO COPY TO.................... The Regional Solicitor, Rocky Mountain
Region U.S. Department of the Interior
755 Parfet Street, Suite 151 Lakewood,
CO 80215
4. ADVERSE PARTIES................... Within 15 days after each document is
filed, each adverse party named in the
decision and the Regional Solicitor or
Field Solicitor having jurisdiction over
the State in which the appeal arose must
be served with a copy of: (a) the Notice
of Appeal, (b) the Statement of Reasons,
and (c) any other documents filed (see
43 CFR Sec. 4.413). Service will be made
upon the Associate Solicitor, Division
of Energy and Resources, Washington,
D.C. 20240, instead of the Field or
Regional Solicitor when appeals are
taken from decisions of the Director
(WO-100).
5. PROOF OF SERVICE.................. Within 15 days after any document is
served on an adverse party, file proof
of that service with the United States
Department of the Interior, Office of
the Secretary, Board of Land Appeals,
4015 Wilson Blvd., Arlington, Virginia
22203. This may consist of a certified
or registered mail "Return Receipt Card"
signed by the adverse party (see 43 CFR
Sec. 4.401(c)(2)).
Unless these procedures are followed your appeal will be subject to dismissal
(see 43 CFR Sec. 4.402). Be certain that all communications are identified by
serial number of the case being appealed.
NOTE: A document is not filed until it is actually received in the proper
office (see 43 CFR Sec. 4.401(a))
<PAGE>
SUBPART 1821.2 -- OFFICE HOURS; TIME AND PLACE FOR FILING
<TABLE>
<S> <C>
Sec. 1821.2-1 Office hours of State Sec. 1821.2-2(d) Any document required or
Offices. (a) State Offices and the permitted to be filed under the regulations
Washington Office of the Bureau of Land of this chapter, which is received in the
Management are open to the public for the State Office or the Washington Office,
filing of documents and inspection of either in the mail or by personal delivery
records during the hours specified in when the office is not open to the public
this paragraph on Monday through Friday shall be deemed to be filed as of the day
of each week, with the exception of those and hour the office next opens to the
days where the office may be closed public.
because of a national holiday or
Presidential or other administrative (e) Any document required by law,
order. The hours during which the State regulation, or decision to be filed within a
Offices and the Washington Office are stated period, the last day of which falls
open to the public for the filing of on a day the State Office or the Washington
documents and inspection of records are Office is officially closed, shall be deemed
from 9 a.m. to 4 p.m., standard time or to be timely filed if it is received in the
daylight saving time, whichever is in appropriate office on the next day the
effect at the city in which each office office is open to the public.
is located.
</TABLE>
* * * * *
This decision may be appealed to the Interior Board of Land Appeals, Office of
the Secretary, in accordance with the regulations contained in 43 CFR, Part 4.
If an appeal is taken, your notice of appeal must be filed in this office (at
the above address) within 30 days from receipt of this decision. The appellant
has the burden of showing that the decision appealed from is in error.
If you wish to file a petition (pursuant to regulation 43 CFR 4.21 (58 FR 4939,
January 19, 1993) (request) for a stay (suspension) of the effectiveness of this
decision during the time that your appeal is being reviewed by the Board, the
petition for a stay must accompany your notice of appeal. A petition for a stay
is required to show sufficient justification based on the standards listed
below. Copies of the notice of appeal and petition for a stay must also be
submitted to each party named in this decision and to the Interior Board of Land
Appeals and to the appropriate Office of the Solicitor (see 43 CFR 4.413) at the
same time the original documents are filed with this office. If you request a
stay, you have the burden of proof to demonstrate that a stay should be granted.
Standard for Obtaining a Stay
-----------------------------
Except as otherwise provided by law or other pertinent regulation, a petition
for a stay of a decision pending appeal shall show sufficient justification
based on the following standards:
(1) The relative harm to the parties if the stay is granted or denied,
(2) The likelihood of the appellant's success on the merits,
(3) The likelihood of immediate and irreparable harm if the stay is not
granted, and
(4) Whether the public interest favors granting the stay.
<PAGE>
EXHIBIT 10.7
United States Department of the Interior
BUREAU OF LAND MANAGEMENT In Reply Refer To:
Wyoming State Office
P.O. Box 1828 3452
Cheyenne, Wyoming 82003-1828 WYW83394
(921MLove)
PHONE NO: 307-775-6258
FAX NO: 307-775-6203
D E C I S I O N
Caballo Coal Company :
Attn: Victor E. Garber : Federal Coal Lease
Caller Box 3037 : Caballo Mine
Gillette, Wyoming 82717-3037 :
Readjusted Terms and Conditions Corrected;
-----------------------------------------
Partial Relinquishment Withdrawn;
--------------------------------
Partial Relinquishment Accepted
-------------------------------
On February 17, 1998, we received a partial relinquishment of Federal coal lease
WYW83394 as to the following lands:
T. 48 N., R.71 W., 6th P.M., Wyoming
Sec. 23: Lots 1-4, 7-10
Containing 324.06 acres, more or less.
Thereafter, on March 6, 1998, we received an additional partial relinquishment
of the following lands:
T. 48 N., R. 71 W., 6th P.M., Wyoming
Sec. 13: Lots 2, 7, 8, 11, 12 (E2), 14.
Containing 224.715 acres, more or less.
On May 7, 1998, we received correspondence from Caballo Coal Company withdrawing
the above-described partial relinquishment filed March 6, 1998.
As a preliminary mater, we are correcting the readjusted lease terms and
conditions that become effective December 1, 1997, which were transmitted to you
by our Decision dated May 14, 1997. The terms and conditions indicated that the
above-mentioned lease included Lots 9 and 15, Section 9, T. 48 N., R. 71 W., 6th
P.M., Wyoming. The terms and conditions should have indicated that the lease
included lot 16, and not lot 15, in Section 9.
The Casper District Office has determined that the public interest shall not be
impaired by acceptance of the relinquishment, as maximum economic recovery of
the recoverable resource shall be achieved and adequate
<PAGE>
2
reclamation has occurred in accordance with the policy outlined in Wyoming
Instruction Memorandum No. 98-35. That office has recommended that the partial
relinquishment be accepted.
Therefore, the partial relinquishment of Federal coal lease WYW83394 is hereby
accepted effective February 17, 1998, the date the relinquishment was filed.
Acceptance of this partial relinquishment does not relieve Caballo Coal Company,
or its successors, from complying with the reclamation requirements of 30 CFR
Chapter VII, Subchapter K, or an approved State program. (43 CFR 3480.0-6(d)(8))
The following-described lands are remaining in Federal coal lease WYW83394:
T. 48 N., R. 71 W., 6th P.M., Wyoming
Sec. 9: Lots 9, 16;
Sec. 10: Lots 1-16;
Sec. 13: Lots 1, 2, 7, 8, 11-14;
Sec. 21: Lots 3-6;
Sec. 24: Lots 1-3.
Containing 1,333.640 acres, more or less.
Attached to this Decision is an acreage calculation worksheet, which lists the
acreage figures for the lands remaining in the lease.
The new rental amount due each year on this lease beginning December 26, 1998,
will be $4,002.00.
If you have any questions concerning this matter, please contact
Mavis Love in the Minerals and Lands Authorization Group at
307-775-6258.
Alan R. Pierson
State Director
Attachment
cc:
DEQ, Land Quality Division, 122 West 25th Street, Cheyenne, WY 82002
DEQ, Land Quality Division, Attn: Bob Giurgevich, 1043 Coffeen Ave., Suite D,
Sheridan, WY 82801
Office of Surface Mining, Attn: Mr. Peter Rutledge, Western
Regional Coordinating Center, 1999 Broadway, Suite 3320,
Denver, CO 80202-5733
MMS, RMP, Reporting & Valuation Division, Solid Minerals
Reporting Staff, P.O. Box 5760, MS3153, Denver CO 80217
WO (320), Room 501, LS
DM, Casper
<PAGE>
ACREAGE CALCULATIONS FOR LANDS REMAINING IN
FEDERAL COAL LEASE WYW83394
AFTER ACCEPTANCE OF PARTIAL RELINQUISHMENT
EFFECTIVE FEBRUARY 17, 1998
T. 48 N., R. 71 W., 6th P.M. Wyoming
- ------------------------------------
Sec. 9: Lots 9, 16 81.030
Sec. 10: Lots 1-16 641.390
Sec. 13: Lot 1, 2, 7, 8, 11-14 327.360
Sec. 21: Lots 3-6 161.660
Sec. 24: Lots 1-3 122.200
TOTAL ACREAGE 1,333.640
<PAGE>
UNITED STATES Serial Number
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT WYW83394
COAL LEASE READJUSTMENT Date Lease Issued
December 1, 1967
===========================================================
PART 1: LEASE RIGHTS GRANTED
This lease, entered into by and between the United States of America,
hereinafter called lessor, through the Bureau of Land Management, and (Name and
Address)
Caballo Coal Company
Caller Box 3037
Gillette, Wyoming 82717
hereinafter called the lessee, is effective December 1, 1997, for a period of 10
years and for so long thereafter as coal is produced in commercial quantities
from the leased lands, subject to readjustment of lease terms at the end of each
10-year period.
Sec. 1. This lease readjustment is subject to the terms and provisions of the:
XX Mineral Lands Leasing Act of 1920, Act of February 25, 1920, as amended, 41
Stat. 437, 30 U.S.C. 181-287, hereinafter referred to as the Act;
[ ] Mineral Leasing Act for Acquired Lands, Act of August 7, 1947, 61 Stat.
913, 30 U.S.C. 351-359;
and to the regulations and formal orders of the Secretary of the Interior which
are now or hereafter in force, when not inconsistent with the express and
specific provisions herein.
Sec. 2. Lessor, in consideration of any rents and royalties to be paid, and the
conditions and covenants to be observed as herein set forth, hereby grants to
lessee the exclusive right and privilege to drill for, mine, extract, remove or
otherwise process and dispose of the coal deposits in, upon, or under the
following described lands in Campbell County, Wyoming:
T. 48 N., R. 71 W., 6th P.M., Wyoming
-------------------------------------
Sec. 9: Lots 9, 16;
Sec. 10: Lots 1-16;
Sec. 13: Lots 1, 2, 7, 8, 11-14;
Sec. 21: Lots 3-6;
Sec. 23: Lots 1-4, 7-10;
Sec. 24: Lots 1-3.
Containing 1,657.70 acres, more or less, together with the right to construct
such works, buildings, plants, structures, equipment and appliances and the
right to use such on-lease rights-of-way which may be necessary and convenient
in the exercise of the rights and privileges granted, subject to the conditions
herein provided.
<PAGE>
WYW83394
Page 2
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PART II. TERMS AND CONDITIONS Sec. 5. LOGICAL MINING UNIT (LMU) - Either upon
approval by the lessor of the lessee's
Sec. 1. (a) RENTAL RATE - Lessee shall pay application or at the direction of the lessor,
lessor rental annually and in advance for this lease shall become an LMU or part of an LMU,
each acre or fraction thereof during the subject to the provisions set forth in the
continuance of the lease at the rate of $3.00 regulations.
for each lease year.
The stipulation established in an LMU approval in
(b) RENTAL CREDITS - Rental shall not be effect at the time of LMU approval will supersede
credited against either production or advance the relevant inconsistent terms of this lease so
royalties for any year. long as the lease remains committed to the LMU.
If the LMU of which this lease is a part is
Sec. 2. (a) PRODUCTION ROYALTIES - The dissolved, the lease shall then be subject to the
royalty shall be 12 1/2 per cent of the value of lease terms which would have been applied if the
the coal produced by strip or auger methods lease had not been included in an LMU.
and 8 per cent of the value of the coal
produced by underground mining methods. The Sec. 6. DOCUMENTS, EVIDENCE AND INSPECTION - At
value of the coal shall be determined as set such times and in such form as lessor may
forth in 43 CFR 3480. Royalties are due to prescribe, lessee shall furnish detailed
lessor the final day of the month succeeding statements showing the amounts and quality of all
the calendar month in which the royalty products removed and sold from the lease, the
obligation accrues. proceeds therefrom, and the amount used for
production purposes or unavoidably lost.
(b) ADVANCE ROYALTIES - Upon request by
lessee, the Authorized Officer may accept, Lessee shall keep open at all reasonable times
for a total of not more than 10 years, the for the inspection of any duly Authorized Officer
payment of advance royalties in lieu of of the lessor, the leased premises and all
continued operation, consistent with the surface and underground improvements, works,
regulations. The advance royalty shall be machinery, ore stockpits, equipment, and all
based on a percent of the value of a minimum books, accounts, maps and records relative to
number of tons determined in the manner operations, surveys, or investigations on or
established by the advance royalty under the leased lands.
regulations in effect at the time the lessee
requests approval to pay advance royalties in Lessee shall allow lessor access to and copying
lieu of continued operation. of documents reasonably necessary to verify
lessee compliance with terms and conditions of
Sec. 3. BONDS - Lessee shall maintain in the the lease.
proper office a lease bond in the amount of
$5,000. The Authorized Officer may required While this lease remains in effect, information
an increase in this amount when additional obtained under this section shall be closed to
coverage is determined appropriate. inspection by the public in accordance with the
Freedom of Information Act (5 U.S.C. 552).
Sec. 4. DILIGENCE - This lease is subject to
the conditions of diligent development and Sec. 7. DAMAGES TO PROPERTY AND CONDUCT OF
continued operation, except that these OPERATIONS - Lessee shall comply at its own
conditions are excused when operations under expense with all reasonable orders of the
the lease are interrupted by strikes, the Secretary, respecting diligent operations,
elements, or casualties not attributable to prevention of waste, and protection of other
the lessee. The lessor, in the public resources.
interest, may suspend the condition of
continued operation upon payment of advance Lessee shall not conduct exploration operations,
royalties in accordance with the regulations other than casual use, without an approved
in existence at the time of the suspension. exploration plan. All exploration plans prior to
Lessee's failure to produce coal in the commencement of mining operations within an
commercial quantities at the end of the 10 approved mining permit area shall be submitted to
years shall terminate the lease. If not the Authorized Officer.
submitted already, lessee shall submit an
operation and reclamation plan pursuant to Lessee shall carry on all operations in
Section 7 of the Act no later than 3 years accordance with approved methods and practices as
after the effective date of this lease provided in the operating regulations, having due
readjustment. regard for the prevention of injury to life,
health, or property, and prevention of waste,
The lessor reserves the power to assent to or damage, or degradation to any land, air, water,
under the suspension of the terms and cultural, biological, visual, and other
conditions of this lease in accordance with, resources, including mineral deposits and
inter alia, Section 39 of the Mineral Leasing formations of mineral deposit not leased
Act, 30 U.S.C. 209.
</TABLE>
<PAGE>
WYW83394
Page 3
<TABLE>
<S> <C>
hereunder, and to other land uses or users. [ ] This lease may only be transferred in whole
Lessee shall take measures deemed necessary or in part to another small business
by lessor to accomplish the intent of this qualified under 13 CFR 121.
lease term. Such measures may include, but
are not limited to, modification to proposed Transfers of record title, working or royalty
siting or design of facilities, timing of interest must be approved in accordance with the
operations, to itself the right to lease, regulations.
sell or otherwise dispose of the surface or
other mineral deposits in the lands and the (b) RELINQUISHMENT - The lessee may relinquish
right to continue existing uses and to in writing at any time all rights under this
authorized future uses upon or in the leased lease or any portion thereof as provided in the
lands, including issuing leases for minerals regulations. Upon lessor's acceptance of the
deposits not covered hereunder, and approving relinquishment, lessee shall be relieved of all
easements or rights-of-way. Lessor shall future obligations under the lease or the
condition such uses to prevent unnecessary or relinquished portion thereof, whichever is
unreasonable interference with rights of applicable.
lessee as may be consistent with concepts of
multiple use and multiple mineral Sec. 10 DELIVERY OF PREMISES, REMOVAL OF
development. MACHINERY, EQUIPMENT, ETC. - At such times as all
portions of this lease are returned to lessor,
Sec. 8. PROTECTION OF DIVERSE INTEREST, AND lessee shall deliver up to lessor the land
EQUAL OPPORTUNITY - Lessee shall: pay when leased, underground timbering, and such other
due all taxes legally assessed and levied supports and structures necessary for the
under the laws of the State or the United preservation of the mine workings on the lease
States; accord all employees complete freedom premises or deposits and place all workings in
of purchase; pay all wages at least twice condition for suspension or abandonment. Within
each month in lawful money of the United 180 days thereof, lessee shall remove from the
States; maintain a safe working environment premises all other structures, machinery,
in accordance with standard industry equipment, tools, and materials that it elects to
practices; restrict the workday to not more or as required by the Authorized Officer. Any
than 8 hours in any one day for underground such structures, machinery, equipment, tools and
workers except in emergencies; and take materials remaining on the leased lands beyond
measures necessary to protect the health and 180 days or approved extension thereof, shall
safety of the public. No person under the become the property of the lessor, but lessee
age of 16 years shall be employed in any mine shall either remove any or all such property or
below the surface. To the extent that laws shall continue to be liable for the cost of
of the State in which the lands are situated removal and disposal in the amount actually
are more restrictive than the provisions in incurred by the lessor. If the surface is owned
this paragraph, then the State laws apply. by third parties, lessor shall waive the
requirement for removal, provided the third
Lessee will comply with all provisions of parties do not object to such waiver. Lessee
Executive Order No. 11246 of September 24, shall, prior to the termination of bond liability
1965, as amended, and the rules, regulations, or at any other time when required and in
and relevant orders of the Secretary of accordance with all applicable laws and
Labor. Neither lessee nor lessee's regulations reclaim all lands the surface of
subcontractors shall maintain segregated which has been disturbed, dispose of all debris
facilities. or solid waste, repair the offsite and onsite
damage caused by lessee's activity or activities
Sec. 9. (a) TRANSFERS incidental thereto, and reclaim access roads or
trails.
XX This lease may be transferred in whole
or in part to any person, association Sec. 11. PROCEEDINGS IN CASE OF DEFAULT - If
or corporation qualified to hold such lessee fails to comply with applicable laws,
lease interest. existing regulations, or the terms, conditions
and stipulations of this lease, and the
[ ] This lease may be transferred in whole noncompliance continues for 30 days after written
or in part to another public body, or notice thereof, this lease shall be subject to
to a person who will mine the coal on cancellation by the lessor only by judicial
behalf of, and for the use of, the proceedings. This provision shall not be
public body or to a person who for the construed to prevent the exercise by lessor of
limited purpose of creating a security any other legal and equitable remedy, including
interest in favor of a lender agrees waiver of the default. Any such remedy or waiver
to be obligated to mine the coal on shall not prevent later cancellation for the same
behalf of the public body. default occurring at any other time.
Sec. 12. HEIRS AND SUCCESSORS-IN-INTEREST - Each
obligation of this lease shall extend to and be
binding upon, and every benefit hereof shall
inure to, the heirs, executors, administrators,
successors, or assigns of the respective parties hereto.
</TABLE>
<PAGE>
WYW83394
Page 4
Sec. 13. INDEMNIFICATION - Lessee shall
indemnify and hold harmless the United States
from any and all claims arising out of the
lessee's activities and operations under this
lease.
Sec. 14. SPECIAL STATUTES - This lease is
subject to the Federal Water Pollution
Control Act (33 U.S.C. 1151-1175), the Clean
Air Act (42 U.S.C. 1987 et. seq.), and to all
other applicable laws pertaining to
exploration activities, mining operations and
reclamation, including the Surface Mining
Control and Reclamation Act of 1977 (30
U.S.C. 1201 et. seq.)
Sec. 15. SPECIAL STIPULATIONS
In addition to observing the general obligations and standards of performance
set out in the current regulations, the lessee shall comply with and be bound by
the following special stipulations.
These stipulations are also imposed upon the lessee's agents and employees.
The failure or refusal of any of these persons to comply with these stipulations
shall be deemed a failure of the lessee to comply with the terms of the lease.
The lessee shall require his agents, contractors and subcontractors involved in
activities concerning this lease to include these stipulations in the contracts
between and among them. These stipulations may be revised or amended, in
writing, by the mutual consent of the lessor and the lessee at any time to
adjust to changed conditions or to correct an oversight.
(a) CULTURAL RESOURCES -
(1) Before undertaking any activities that may disturb the surface of the
leased lands, the lessee shall conduct a cultural resource intensive field
inventory in a manner specified by the Authorized Officer of the BLM or of
the surface managing agency, if different, on portions of the mine plan
area and adjacent areas, or exploration plan area, that may be adversely
affected by lease-related activities and which were not previously
inventoried at such a level of intensity. The inventory shall be conducted
by a qualified professional cultural resource specialist (i.e.,
archeologist, historian, historical architect, as appropriate), approved by
the Authorized Officer of the surface managing agency (BLM if the surface
is privately owned), and a report of the inventory and recommendations for
protecting any cultural resources identified shall be submitted to the
Assistant Director of the Western Support Center of the Office of Surface
Mining, the Authorized Officer of the BLM, if activities are associated
with coal exploration outside an approved mining permit area (hereinafter
called Authorized Officer), and the Authorized Officer of the surface
managing agency, if different. The lessee shall undertake measures, in
accordance with instructions from the Assistant Director, or Authorized
Officer, to protect cultural resources on the leased lands. The lessee
shall not commence the
<PAGE>
WYW83394
Page 5
surface disturbing activities until permission to proceed is given by the
Assistant Director or Authorized Officer.
(2) The lessee shall protect all cultural resource properties within the
lease area from lease-related activities until the cultural resource
mitigation measures can be implemented as part of an approved mining and
reclamation plan or exploration plan.
(3) The cost of conducting the inventory, preparing reports, and carrying
out mitigation measures shall be borne by the lessee.
(4) If cultural resources are discovered during operations under this
lease, the lessee shall immediately bring them to the attention of the
Assistant Director or Authorized Officer, or the Authorized Officer of the
surface managing agency, if the Assistant Director is not available. The
lessee shall not disturb such resources except as may be subsequently
authorized by the Assistant Director or Authorized Officer.
Within two (2) working days of notification, the Assistant Director or
Authorized Officer will evaluate or have evaluated any cultural resources
discovered and will determine if any action may be required to protect or
preserve such discoveries. The cost of data recovery for cultural
resources discovered during lease operations shall be borne by the surface
managing agency unless otherwise specified by the Authorized Officer of the
BLM or of the surface managing agency, if different.
(5) All cultural resources shall remain under the jurisdiction of the
United States until ownership is determined under applicable law.
(b) PALEONTOLOGICAL RESOURCES - If paleontological resources, either large and
conspicuous, and/or of significant scientific value are discovered during
construction, the find will be reported to the Authorized Officer immediately.
Construction will be suspended within 250 feet of said find. An evaluation of
the paleontological discovery will be made by a BLM approved professional
paleontologist within five (5) working days, weather permitting, to determine
the appropriate action(s) to prevent the potential loss of any significant
paleontological value. Operations within 250 feet of such discovery will not be
resumed until written authorization to proceed is issued by the Authorized
Officer. The lessee will bear the cost of any required paleontological
appraisals, surface collection of fossils, or salvage of any large conspicuous
fossils of significant scientific interest discovered during the operations.
(c) MULTIPLE MINERAL DEVELOPMENT - Operations will not be approved which, in
the opinion of the Authorized Officer, would unreasonably interfere with the
orderly development and/or production from a valid existing mineral lease issued
prior to this one for the same lands.
(d) OIL AND GAS/COAL RESOURCES - The BLM realizes that coal mining operations
conducted on Federal coal leases issued within producing oil and gas fields may
interfere with the economic recovery of oil and gas; just as
<PAGE>
WYW83394
Page 6
Federal oil and gas leases issued in a Federal coal lease area may inhibit coal
recovery. BLM retains the authority to alter and/or modify the resource
recovery and protection plans for coal operations and/or oil and gas operations
on those lands covered by Federal mineral leases so as to obtain maximum
resource recovery.
(e) RESOURCE RECOVERY AND PROTECTION - Notwithstanding the approval of a
resource recovery and protection plan (R2P2) by the BLM, lessor reserves the
right to seek damages against the operator/lessee in the event (i) the
operator/lessee fails to achieve maximum economic recovery (MER) (as defined at
43 CFR 3480.0-5(21)) of the recoverable coal reserves or (ii) the
operator/lessee is determined to have caused a wasting of recoverable coal
reserves. Damages shall be measured on the basis of the royalty that would have
been payable on the wasted or unrecovered coal.
The parties recognize that under an approved R2P2, conditions may require a
modification by the operator/lessee of that plan. In the event a coalbed or
portion thereof is not to be mined or is rendered unmineable by the operation,
the operator/lessee shall submit appropriate justification to obtain approval by
the Authorized Officer (AO) to leave such reserves unmined. Upon approval by
the AO, such coalbeds or portions thereof shall not be subject to damages as
described above. Further, nothing in this section shall prevent the
operator/lessee from exercising its right to relinquish all or portion of the
lease as authorized by statute and regulation.
In the event the AO determines that the R2P2, as approved, will not attain MER
as the result of changed conditions, the AO will give proper notice to the
operator/lessee as required under applicable regulations. The AO will order a
modification if necessary, identifying additional reserves to be mined in order
to attain MER. Upon a final administrative or judicial ruling upholding such an
ordered modification, any reserves left unmined (wasted) under that plan will be
subject to damages as described in the first paragraph under this section.
Subject to the right to appeal hereinafter set forth, payment of the value of
the royalty on such unmined recoverable coal reserves shall become due and
payable upon determination by the AO that the coal reserves have been rendered
unmineable or at such time that the operator/lessee has demonstrated an
unwillingness to extract the coal.
The BLM may enforce this provision either by issuing a written decision
requiring payment of the MMS demand for such royalties, or by issuing a notice
of non-compliance. A decision or notice of non-compliance issued by the lessor
that payment is due under this stipulation is appealable as allowed by law.
(f) PUBLIC LAND SURVEY PROTECTION - The lessee will protect all survey
monuments, witness corners, reference monuments, and bearing trees against
destruction, obliteration, or damage during operations on the lease areas. If
any monuments, corners or accessories are destroyed, obliterated, or damaged by
this operation, the lessee will hire an appropriate county surveyor or
registered land surveyor to reestablish or restore the
<PAGE>
WYW83394
Page 7
monuments, corners, or accessories at the same location, using surveying
procedures in accordance with the "Manual of Surveying Instructions for the
----------------------------------------
Survey of the Public Lands of the United States." The survey will be recorded
- -----------------------------------------------
in the appropriate county records, with a copy sent to the Authorized Officer.
in order to attain MER. Upon a final administrative or judicial ruling
upholding such an ordered modification, any reserves left unmined (wasted) under
that plan will be subject to damages as described in the first paragraph under
this section.
Subject to the right to appeal hereinafter set forth, payment of the value of
the royalty on such unmined recoverable coal reserves shall become due and
payable upon determination by the AO that the coal reserves have been rendered
unmineable or at such time that the operator/lessee has demonstrated an
unwillingness to extract the coal.
The BLM may enforce this provision either by issuing a written decision
requiring payment of the MMS demand for such royalties, or by issuing a notice
of non-compliance. A decision or notice of non-compliance issued by the lessor
that payment is due under this stipulation is appealable as allowed by
<PAGE>
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
INFORMATION ON TAKING APPEALS TO THE BOARD OF LAND APPEALS
DO NOT APPEAL UNLESS
1. This decision is adverse to you,
AND
2. You believe it is incorrect
IF YOU APPEAL, THE FOLLOWING PROCEDURES MUST BE FOLLOWED
1. NOTICE OF APPEAL.................. Within 30 days file a Notice of Appeal
in the office which issued this decision
(see 43 CFR Secs. 4.411 and 4.13). You
may state your reasons for appealing, if
you desire.
2. WHERE TO FILE
NOTICE OF APPEAL................ Wyoming State Office, Bureau of Land
Management 5353 Yellowstone Rd., P.O.
Box 1828 Cheyenne, Wyoming 82009/82003-
1828
SOLICITOR
ALSO COPY TO.................... The Regional Solicitor, Rocky Mountain
Region U.S. Department of the Interior
755 Parfet Street, Suite 151 Lakewood,
CO 80215
3. STATEMENT OF REASONS.............. Within 30 days after filing the Notice
of Appeal, file a complete statement of
the reasons why you are appealing. This
must be filed with the United States
Department of the Interior. Office of
the Secretary, Board of Land Appeals,
4015 Wilson Blvd., Arlington, Virginia
22203 (see 43 CFR Sec. 4.412 and 4.413).
If you fully stated your reasons for
appealing when filing the Notice of
Appeal, no additional statement is
necessary.
SOLICITOR
ALSO COPY TO.................... The Regional Solicitor, Rocky Mountain
Region U.S. Department of the Interior
755 Parfet Street, Suite 151 Lakewood,
CO 80215
4. ADVERSE PARTIES................... Within 15 days after each document is
filed, each adverse party named in the
decision and the Regional Solicitor or
Field Solicitor having jurisdiction over
the State in which the appeal arose must
be served with a copy of: (a) the Notice
of Appeal, (b) the Statement of Reasons,
and (c) any other documents filed (see
43 CFR Sec. 4.413). Service will be made
upon the Associate Solicitor, Division
of Energy and Resources, Washington,
D.C. 20240, instead of the Field or
Regional Solicitor when appeals are
taken from decisions of the Director
(WO-100).
5. PROOF OF SERVICE.................. Within 15 days after any document is
served on an adverse party, file proof
of that service with the United States
Department of the Interior, Office of
the Secretary, Board of Land Appeals,
4015 Wilson Blvd., Arlington, Virginia
22203. This may consist of a certified
or registered mail "Return Receipt Card"
signed by the adverse party (see 43 CFR
Sec. 4.401(c)(2)).
Unless these procedures are followed your appeal will be subject to dismissal
(see 43 CFR Sec. 4.402). Be certain that all communications are identified by
serial number of the case being appealed.
NOTE: A document is not filed until it is actually received in the proper
office (see 43 CFR Sec. 4.401(a))
<PAGE>
SUBPART 1821.2 -- OFFICE HOURS; TIME AND PLACE FOR FILING
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Sec. 1821.2-1 Office hours of State Sec. 1821.2-2(d) Any document required or
Offices. (a) State Offices and the permitted to be filed under the regulations
Washington Office of the Bureau of Land of this chapter, which is received in the
Management are open to the public for the State Office or the Washington Office,
filing of documents and inspection of either in the mail or by personal delivery
records during the hours specified in when the office is not open to the public
this paragraph on Monday through Friday shall be deemed to be filed as of the day
of each week, with the exception of those and hour the office next opens to the
days where the office may be closed public.
because of a national holiday or
Presidential or other administrative (e) Any document required by law,
order. The hours during which the State regulation, or decision to be filed within a
Offices and the Washington Office are stated period, the last day of which falls
open to the public for the filing of on a day the State Office or the Washington
documents and inspection of records are Office is officially closed, shall be deemed
from 9 a.m. to 4 p.m., standard time or to be timely filed if it is received in the
daylight saving time, whichever is in appropriate office on the next day the
effect at the city in which each office office is open to the public.
is located.
</TABLE>
* * * * *
This decision may be appealed to the Interior Board of Land Appeals, Office of
the Secretary, in accordance with the regulations contained in 43 CFR, Part 4.
If an appeal is taken, your notice of appeal must be filed in this office (at
the above address) within 30 days from receipt of this decision. The appellant
has the burden of showing that the decision appealed from is in error.
If you wish to file a petition (pursuant to regulation 43 CFR 4.21 (58 FR 4939,
January 19, 1993) (request) for a stay (suspension) of the effectiveness of this
decision during the time that your appeal is being reviewed by the Board, the
petition for a stay must accompany your notice of appeal. A petition for a stay
is required to show sufficient justification based on the standards listed
below. Copies of the notice of appeal and petition for a stay must also be
submitted to each party named in this decision and to the Interior Board of Land
Appeals and to the appropriate Office of the Solicitor (see 43 CFR 4.413) at the
same time the original documents are filed with this office. If you request a
stay, you have the burden of proof to demonstrate that a stay should be granted.
Standard for Obtaining a Stay
-----------------------------
Except as otherwise provided by law or other pertinent regulation, a petition
for a stay of a decision pending appeal shall show sufficient justification
based on the following standards:
(1) The relative harm to the parties if the stay is granted or denied,
(2) The likelihood of the appellant's success on the merits,
(3) The likelihood of immediate and irreparable harm if the stay is not
granted, and
(4) Whether the public interest favors granting the stay.
<PAGE>
STATEMENT OF COMPLIANCE
-----------------------
(As required by Bureau of Land Management Instruction Memorandum No. WY-98-35)
This Statement of Compliance is submitted in conjunction with Caballo
Coal Company's request for the partial relinquishment of federal coal lease
number WYW-83394.
To the best of its knowledge, information and belief, Caballo Coal
Company is in full compliance with the provisions and terms of federal coal
lease WYW-83394 and all laws, rules and regulations applicable thereto.
Dated this 2nd day of March 1998.
Respectfully Submitted,
CABALLO COAL COMPANY
------------------------------
Larry H. Fox, President
<PAGE>
P & L COAL HOLDINGS CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS)
<TABLE>
<CAPTION>
Pro Forma
Fiscal Fiscal Six Months Fiscal Fiscal Fiscal Fiscal
Year Ended Year Ended Ended Year Ended Year Ended Year Ended Year Ended
March 1998 March 1998 March 1997 Sept. 1996 Sept. 1995 Sept. 1994 Sept. 1993
------------ ------------ ------------ ------------ ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (Loss) Before Income Taxes $ 12,588 $ 250,529 $ 85,985 $ (702,467) $ 192,739 $ 86,943 $ (21,816)
Interest Expense 207,745 33,635 24,700 62,526 58,355 63,404 62,425
Interest Portion of Rental Expense 18,910 18,910 8,002 17,069 14,981 13,637 14,729
----------- ----------- ----------- ----------- ---------- ---------- ---------
Adjusted Earnings (Loss) $ 239,241 $ 303,074 $ 118,687 $ (622,872) $ 266,075 $ 163,984 $ 55,338
=========== =========== =========== =========== ========== ========== =========
Interest Expense $ 207,745 $ 33,635 $ 24,700 $ 62,526 $ 58,355 $ 63,404 $ 62,425
Interest Portion of Rental Expense 18,910 18,910 8,002 17,069 14,961 13,637 14,729
----------- ----------- ----------- ----------- ---------- ---------- ---------
Adjusted fixed charges $ 226,655 $ 52,545 $ 32,702 $ 79,595 $ 73,336 $ 77,041 $ 77,154
=========== =========== =========== =========== ========== ========== =========
Ratio of Earnings to Fixed Charges 1.06 5.77 3.63 N/A 3.63 2.13 N/A
=========== =========== =========== =========== ========== ========== =========
</TABLE>
<PAGE>
EXHIBIT 21
LIST OF SUBSIDIARIES OF P&L COAL HOLDINGS CORPORATION
Carbones Peabody de Venezuela, C.A.
Darex Capital Inc.
Dolphin Properties Pty Limited
Peabody Australasia Pty Limited
Peabody Australia Limited
Peabody Bengalla Investments Pty Limited
Peabody Bengalla Pty Limited
Peabody Coal Limited
Peabody Finance Limited
Peabody Investments (Australia) Pty Limited
Peabody Minerals Pty. Limited
Peabody Mining Investments Pty Limited
Peabody Mining Services Pty Limited
Peabody Mount Arthur North Pty Limited
Peabody Resources Corporation (Malaysia) Sdn.Bdn.
Peabody Resources Holdings Pty. Limited
Peabody Resources Limited
Peabody Resources Staff Retirement Fund Pty Limited
Peabody Sub Holdings Pty Limited
Peabody Turkish Investments Limited
Ravensworth Coal Trust
Ravensworth Pastoral Co. Pty Limited
Rylandes Insurance Co. Pty Limited
Survga Limited
The Energy Group Australia Pty Limited
CL Funding, L.L.C.
CL Hartford, L.L.C.
CL Power Sales One, L.L.C.
CL Power Sales Two, L.L.C.
CL Power Sales Three, L.L.C.
CL Power Sales Four, L.L.C.
CL Power Sales Five, L.L.C.
CL Power Sales Six, L.L.C.
CL Power Sales Seven, L.L.C.
CL Power Sales Eight, L.L.C.
CL Power Sales Nine, L.L.C.
CL Power Sales Ten, L.L.C.
Citizens Power L.L.C.
Citizens Power Sales
Hartford Power Sales, L.L.C.
Arid Operations, Inc.
Darius Gold Mine, Inc.
Gold Fields Chile, S.A.
Gold Fields Mining Corporation
Peabody America, Inc.
Peabody Holding Company, Inc.
Affinity Mining Company
Big Sky Coal Company
Blackrock First Capital Corporation
1
<PAGE>
Bluegrass Coal Company
Caballo Coal Company
Charles Coal Company
Coal Properties Corp.
Cook Mountain Coal Company
Cottonwood Land Company
EACC Camps, Inc.
Eastern Associated Coal Corp.
Eastern Royalty Corp.
Grand Eagle Mining, Inc.
Hayden Gulch Terminal, Inc.
Independence Material Holding Company
Interior Holdings Corp.
James River Coal Terminal Company
Juniper Coal Company
Kayenta Mobile Home Park, Inc.
Martinka Coal Company
Midco Supply and Equipment Corporation
Midwest Coal Resources, Inc.
Mountain View Coal Company
North Page Coal Corp.
Ohio County Coal Company
Patriot Coal Company L.P.
Peabody COALSALES Company
Peabody COALTRADE, Inc.
Peabody Coal Company
Peabody Development Company
Peabody Energy Solutions, Inc.
Peabody Natural Resources Company
Peabody Terminals, Inc.
Peabody Venezuela Coal Corp.
Peabody Western Coal Company
Pine Ridge Coal Company
Powder River Coal Company
Rio Escondido Coal Corp.
Seneca Coal Company
Sentry Mining Company
Snowberry Land Company
Sterling Smokeless Coal Company
Thoroughbred, L.L.C.
2
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and the related Prospectus of P&L Coal
Holdings Corporation for the registration of 8 7/8% series B Senior Notes due
2008 and 9 5/8% series B Senior Subordinated Notes due 2008, and to the
inclusion of our report dated April 24, 1998, with respect to the combined
financial statements and schedule of P&L Coal Group for the year ended March
31, 1998, the six months ended March 31, 1997, and each of the two years ended
September 30, 1996, filed with the Securities and Exchange Commission.
St. Louis, MO /Ernst & Young LLP/
July 10, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and the related Prospectus of P&L Coal
Holdings Corporation for the registration of 8 7/8% series B Senior Notes due
2008 and 9 5/8% series B Senior Subordinated Notes due 2008, and to the
inclusion of our report dated July 9, 1998, with respect to the balance sheet
of P&L Coal Holdings Corporation as of March 31, 1998, filed with the
Securities and Exchange Commission.
St. Louis, MO /Ernst & Young LLP/
July 10, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF EXPERT
We hereby consent to the use by P&L Coal Holdings Corporation in their
Registration Statement on Form S-4 dated July 14,1998, and any amendments
thereto, our report dated November 8,1996, addressed to The Energy Group PLC
relating to certain coal reserve information. We also consent to the reference
to John T. Boyd Company under the headings "Prospectus Summary" and "Experts" in
the Prospectus contained in such Registration Statement.
/s/ James W. Boyd
-----------------------------
By: James W. Boyd
President
July 9, 1998
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
P&L COAL HOLDINGS CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 13-4004153
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
(Address of principal executive offices) (Zip Code)
8-7/8% SENIOR NOTES DUE 2008
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System,
Washington, D.C., Federal Deposit Insurance Corporation,
Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1) filed
with the Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) and is incorporated herein by reference
thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-
17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement
of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS
IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 15th day of June.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Philip G. Kane, Jr.
------------------------------
NAME PHILIP G. KANE, JR.
TITLE VICE PRESIDENT
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by P&L COAL
HOLDINGS CORPORATION, of its 9-5/8% SENIOR SUBORDINATED NOTES DUE 1008, we
hereby consent that reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Philip G. Kane, Jr.
-------------------------------------
NAME PHILIP G. KANE, JR.
TITLE VICE PRESIDENT
DATED: JUNE 15, 1998
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business March 31, 1998,
--------------
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin...................................................... 1,144,309
Interest-bearing balances............................................................................... 9,914,704
Securities................................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary..................................................................... 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............................................................... 6,433,627
Allowance for loan and lease losses..................................................................... 88,820
Allocated transfer risk reserve......................................................................... 0
Loans and leases, net of unearned income and allowances................................................. 6,344,807
Assets held in trading accounts.............................................................................. 1, 117,547
Premises and fixed assets.................................................................................... 453,576
Other real estate owned...................................................................................... 100
Investments in unconsolidated subsidiaries................................................................... 44,985
Customers' liability to this bank on acceptances outstanding................................................. 66,149
Intangible assets............................................................................................ 263,249
Other assets................................................................................................. 1,066,572
----------
Total assets................................................................................................. 38,552,020
==========
LIABILITIES
Deposits:
In domestic offices..................................................................................... 9,266,492
Noninterest-bearing................................................................................ 6,824,432
Interest-bearing................................................................................... 2,442,060
In foreign offices and Edge subsidiary.................................................................. 14,385,048
Noninterest-bearing................................................................................ 75,909
Interest-bearing................................................................................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary..................................................................... 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities............................................. 171,783
Trading liabilities........................................................................................ 1,078,189
Other borrowed money......................................................................................... 406,583
Subordinated notes and debentures............................................................................ 0
Bank's liability on acceptances executed and outstanding..................................................... 66,149
Other liabilities............................................................................................ 878,947
Total liabilities............................................................................................ 36,203,185
----------
EQUITY CAPITAL
Perpetual preferred stock and related
surplus...................................................................................................... 0
Common stock................................................................................................. 29,931
Surplus...................................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses)................................. 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities....................................... 18,136
Cumulative foreign currency translation adjustments.......................................................... (6,256)
Total equity capital......................................................................................... 2,348,835
----------
Total liabilities and equity capital......................................................................... 38,552,020
----------
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS
INDEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter of
the obligor, the trustee has relied upon the information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer to Item 2. of this statement will be amended, if necessary,
to reflect any facts which differ from those stated and which would have been
required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation duly
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 15TH OF JUNE, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Philip G. Kane, Jr. /s/ NAME
-----------------------------------
NAME: PHILIP G. KANE, JR.
TITLE: VICE PRESIDENT
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by P&L COAL
HOLDINGS CORPORATION, of its 8-7/8% SENIOR NOTES DUE 2008, we hereby consent
that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: Philip G. Kane, Jr. /s/ NAME
-----------------------------------
NAME: Philip G. Kane, Jr.
TITLE: VICE PRESIDENT
DATED: JUNE 15, 1998
3
<PAGE>
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
P&L COAL HOLDINGS CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 13-4004153
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
(Address of principal executive offices) (Zip Code)
9-5/8% SENIOR SUBORDINATED NOTES DUE 2008
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH
IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its parent,
State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16.LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission as
Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration
Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee to
commence business was necessary or issued is on file with the
Securities and Exchange Commission as Exhibit 2 to Amendment No.
1 to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise corporate
trust powers is on file with the Securities and Exchange
Commission as Exhibit 3 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No. 22-
17940) and is incorporated herein by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to
the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein by
reference thereto.
1
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority is annexed hereto as Exhibit 7 and made a
part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 15th day of June.
STATE STREET BANK AND TRUST COMPANY
By: Philip G. Kane, Jr. /s/ NAME
------------------------------------
NAME: PHILIP G. KANE, JR.
TITLE: VICE PRESIDENT
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by P&L COAL
HOLDINGS CORPORATION, of its 9-5/8% SENIOR SUBORDINATED NOTES DUE 1008, we
hereby consent that reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: Philip G. Kane, Jr. /s/ NAME
------------------------------------
NAME: PHILIP G. KANE, JR.
TITLE: VICE PRESIDENT
DATED: JUNE 15, 1998
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business March 31, 1998,
--------------
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin...................................................... 1,144,309
Interest-bearing balances............................................................................... 9,914,704
Securities................................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary.................................................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............................................................ 6,433,627
Allowance for loan and lease losses.................................................................. 88,820
Allocated transfer risk reserve...................................................................... 0
Loans and leases, net of unearned income and allowances.............................................. 6,344,807
Assets held in trading accounts........................................................................... 1, 117,547
Premises and fixed assets................................................................................. 453,576
Other real estate owned................................................................................... 100
Investments in unconsolidated subsidiaries................................................................ 44,985
Customers' liability to this bank on acceptances outstanding.............................................. 66,149
Intangible assets......................................................................................... 263,249
Other assets.............................................................................................. 1,066,572
----------
Total assets.............................................................................................. 38,552,020
==========
LIABILITIES
Deposits:
In domestic offices.................................................................................. 9,266,492
Noninterest-bearing............................................................................. 6,824,432
Interest-bearing................................................................................ 2,442,060
In foreign offices and Edge subsidiary............................................................... 14,385,048
Noninterest-bearing............................................................................. 75,909
Interest-bearing................................................................................ 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary.................................................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities.......................................... 171,783
Trading liabilities....................................................................................... 1,078,189
Other borrowed money...................................................................................... 406,583
Subordinated notes and debentures......................................................................... 0
Bank's liability on acceptances executed and outstanding.................................................. 66,149
Other liabilities......................................................................................... 878,947
Total liabilities......................................................................................... 36,203,185
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................. 0
Common stock.............................................................................................. 29,931
Surplus................................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses).............................. 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities.................................... 18,136
Cumulative foreign currency translation adjustments....................................................... (6,256)
Total equity capital...................................................................................... 2,348,835
----------
Total liabilities and equity capital...................................................................... 38,552,020
----------
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM COMBINED
BALANCE SHEETS AND STATEMENTS OF OPERATIONS AS OF MARCH 31, 1998 AND FOR THE
YEAR THEN ENDED, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> MAR-31-1998
<PERIOD-START> APR-01-1997
<PERIOD-END> MAR-31-1998
<CASH> 96,821
<SECURITIES> 0
<RECEIVABLES> 326,540
<ALLOWANCES> 9,100
<INVENTORY> 197,480
<CURRENT-ASSETS> 2,126,152
<PP&E> 5,238,939
<DEPRECIATION> 1,565,397
<TOTAL-ASSETS> 6,355,234
<CURRENT-LIABILITIES> 1,590,181
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 1,687,842
<TOTAL-LIABILITY-AND-EQUITY> 6,355,234
<SALES> 2,244,462
<TOTAL-REVENUES> 2,244,462
<CGS> 1,975,275
<TOTAL-COSTS> 1,975,275
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 33,635
<INCOME-PRETAX> 250,529
<INCOME-TAX> 90,193
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 160,336
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
