EXHIBIT 4.1
EXECUTION COPY
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BAYOU STEEL CORPORATION
TO
FIRST NATIONAL BANK OF COMMERCE, as Trustee
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Indenture
Dated May 22, 1998
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Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section(s)
- --------------- ----------
(S)310(a)(1).................................................. 9.9
(a)(2)................................................... 9.9
(a)(3)................................................... Not applicable
(a)(4)................................................... Not applicable
(a)(5)................................................... 9.9
(b)...................................................... 9.8; 9.10
(c)...................................................... Not applicable
(S)311(a)...................................................... 9.13
(b)...................................................... 9.13
(c)...................................................... Not applicable
(S)312(a)...................................................... 10.1; 10.2(a)
(b)...................................................... 10.2(b)
(c)...................................................... 10.2(c)
(S)313(a)...................................................... 10.3(a)
(a)(4)................................................... 1.1
(b)...................................................... 10.3(a)
(c)...................................................... 10.3(a)
(d)...................................................... 10.3(b)
(S)314(a)...................................................... 10.4
(a)(4)................................................... 6.5
(b)...................................................... 12.2
(c)(1)................................................... 13.4
(c)(2)................................................... 13.4
(c)(3)................................................... 13.4
(d)...................................................... 12.2; 12.3;
12.4; 12.5;
13.2; 13.3;
13.4; 13.5
(e)...................................................... 13.6
(f)...................................................... Not applicable
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Trust Indenture Indenture
Act Section Section(s)
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(S)315(a)...................................................... 9.1
(b)...................................................... 9.2
(c)...................................................... 9.1
(d)...................................................... 9.1
(e)...................................................... 8.14
(S)316(a)...................................................... 1.1
(a)(1)(A)................................................ 8.2; 8.12
(a)(1)(B)................................................ 8.13
(a)(2)................................................... Not applicable
(b)...................................................... 8.8
(c)...................................................... 1.4
(S)317(a)(1)................................................... 8.3
(a)(2)................................................... 8.4
(b)...................................................... 6.26
(S)318(a)...................................................... 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page(s)
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION......................... 2
SECTION 1.1. Definitions................................................ 2
"Act"..................................................................... 3
"Affiliate"............................................................... 3
"Agent Members"........................................................... 3
"Aggregate Cash Proceeds"................................................. 3
"Applicable Premium"...................................................... 3
"Appraiser"............................................................... 3
"Asset Acquisition"....................................................... 4
"Asset Backed Entity"..................................................... 4
"Asset Sale".............................................................. 4
"Asset Sale Offer"........................................................ 5
"Asset Sale Payment Date"................................................. 5
"Authenticating Agent".................................................... 5
"Available Amount"........................................................ 5
"Average Life"............................................................ 5
"Bankruptcy Law".......................................................... 5
"Board of Directors"...................................................... 5
"Board Resolution"........................................................ 5
"Business Day"............................................................ 5
"Capital Stock"........................................................... 5
"Capitalized Lease Obligation"............................................ 6
"Cash Equivalents"........................................................ 6
"Certificated Securities"................................................. 6
"Change of Control"....................................................... 6
"Change of Control Date".................................................. 7
"Change of Control Offer"................................................. 7
"Change of Control Payment Date".......................................... 7
"Collateral".............................................................. 7
"Collateral Account"...................................................... 7
"Collateral Agent"........................................................ 7
"Collateral Proceeds"..................................................... 8
"Commission".............................................................. 8
"Common Stock"............................................................ 8
"Company"................................................................. 8
"Company Obligations"..................................................... 8
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"Company Request" or "Company Order"...................................... 8
"Company Security Agreement".............................................. 8
"Condemnation Award"...................................................... 8
"Consolidated Domestic Income Tax Expense"................................ 8
"Consolidated Interest Expense"........................................... 9
"Consolidated Interest Income"............................................ 9
"Consolidated Net Income"................................................. 9
"Consolidated Net Worth".................................................. 9
"Consolidated Recourse Subsidiary"........................................ 10
"Corporate Trust Office".................................................. 10
"Corporation"............................................................. 10
"Currency Agreement"...................................................... 10
"Custodian"............................................................... 10
"Default"................................................................. 10
"Defaulted Interest"...................................................... 10
"Depositary".............................................................. 10
"Disqualified Stock"...................................................... 10
"EBITDA".................................................................. 10
"EBITDA Ratio"............................................................ 11
"Event of Default"........................................................ 12
"Exchange Act"............................................................ 12
"Exchange Global Note".................................................... 12
"Exchange Notes".......................................................... 12
"Financial Advisor"....................................................... 12
"Fixtures and Equipment".................................................. 12
"GAAP".................................................................... 12
"Global Securities"....................................................... 12
"Guarantee"............................................................... 12
"Holder".................................................................. 13
"Indebtedness"............................................................ 13
"Indenture"............................................................... 13
"Independent"............................................................. 13
"Initial Notes"........................................................... 14
"Institutional Accredited Investor Global Note"........................... 14
"Institutional Accredited Investor Note".................................. 14
"Intercreditor Agreement"................................................. 14
"Interest Payment Date"................................................... 14
"Interest Rate Agreement"................................................. 14
"Internal Revenue Code"................................................... 15
"Investment".............................................................. 15
"Issue Date".............................................................. 15
"Joint Venture"........................................................... 15
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Page(s)
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"Lenders"................................................................. 15
"Lender Secured Property"................................................. 15
"Lien".................................................................... 15
"Majority-Owned Non-Recourse Subsidiary".................................. 15
"Majority-Owned Subsidiary"............................................... 15
"Maturity Date"........................................................... 15
"Meyers".................................................................. 16
"Mortgage"................................................................ 16
"Mortgaged Facility"...................................................... 16
"1998 Issue Date"......................................................... 16
"Net Cash Proceeds"....................................................... 16
"Net Income".............................................................. 17
"Net Insurance Proceeds".................................................. 17
"Net Interest Expense".................................................... 17
"New Credit Facility"..................................................... 17
"Non-Collateral Proceeds"................................................. 17
"Non-Recourse Indebtedness"............................................... 17
"Non-Recourse Subsidiary"................................................. 18
"Obsolete Assets"......................................................... 18
"Offering Memorandum"..................................................... 18
"Officer"................................................................. 18
"Officers' Certificate"................................................... 18
"Opinion of Counsel"...................................................... 18
"Other Consideration"..................................................... 18
"Outstanding"............................................................. 18
"Paying Agent"............................................................ 19
"Permitted Easement"...................................................... 19
"Permitted Investment".................................................... 19
"Permitted Liens"......................................................... 20
"Permitted Payments"...................................................... 22
"Permitted Related Acquisition"........................................... 22
"Person".................................................................. 22
"Preferred Stock"......................................................... 22
"Private Exchange Securities"............................................. 23
"Private Placement Legend"................................................ 23
"Purchase Agreement"...................................................... 23
"Qualified Asset Backed Transaction"...................................... 23
"Receivables Fees"........................................................ 23
"Recourse Subsidiary"..................................................... 23
"Reference Period"........................................................ 23
"Registered Exchange Offer"............................................... 23
"Registration Rights Agreement"........................................... 23
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"Regular Record Date"..................................................... 23
"Regulation S"............................................................ 24
"Regulation S Global Note"................................................ 24
"Regulation S Legend"..................................................... 24
"Regulation S Note"....................................................... 24
"Released Interests"...................................................... 24
"Released Trust Moneys"................................................... 24
"Responsible Officer"..................................................... 24
"Restricted Investment"................................................... 24
"Restricted Payment"...................................................... 24
"Restricted Period"....................................................... 25
"Retained Trust Moneys"................................................... 25
"Rule 144A"............................................................... 25
"Rule 144A Global Note"................................................... 25
"Rule 144A Note".......................................................... 25
"Sale and Leaseback Transaction".......................................... 25
"Securities".............................................................. 25
"Security Documents"...................................................... 25
"Security Register" and "Security Registrar".............................. 25
"Special Record Date"..................................................... 25
"Standard Securitization Undertakings".................................... 26
"Stated Maturity"......................................................... 26
"Steel Business Assets"................................................... 26
"Subsidiary".............................................................. 26
"Subsidiary Guarantee".................................................... 26
"Subsidiary Security Agreement"........................................... 26
"Transaction"............................................................. 26
"Treasury Rate"........................................................... 26
"Trust Moneys"............................................................ 27
"Trust Moneys Release Notice"............................................. 27
"Trustee"................................................................. 27
"Trust Indenture Act"..................................................... 27
"Trust Officer"........................................................... 27
"U.S. Government Obligations"............................................. 28
"Valuation Date".......................................................... 28
"Vice President".......................................................... 28
"Wholly-Owned Non-Recourse Subsidiary".................................... 28
"Wholly-Owned Recourse Subsidiary"........................................ 28
"Wholly-Owned Subsidiary"................................................. 28
"Withdrawal Notice"....................................................... 28
SECTION 1.2. Compliance Certificates and Opinions........................ 28
SECTION 1.3. Form of Documents Delivered to Trustee...................... 29
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Page(s)
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SECTION 1.4. Acts of Holders; Record Dates............................... 30
SECTION 1.5. Notices, Etc. to Trustee, Company and Subsidiary Guarantors. 31
SECTION 1.6. Notice to Holders; Waiver................................... 31
SECTION 1.7. Conflict with Trust Indenture Act........................... 32
SECTION 1.8. Effect of Headings and Table of Contents.................... 32
SECTION 1.9. Successors and Assigns...................................... 32
SECTION 1.10. Separability Clause......................................... 32
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Page(s)
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SECTION 1.11. Benefits of Indenture..................................... 32
SECTION 1.12. Governing Law............................................. 32
SECTION 1.13. Legal Holidays............................................ 32
SECTION 1.14. Immunity of Incorporators, Stockholders,
Officers and Directors.................................... 33
ARTICLE II
SECURITY FORMS............................ 33
SECTION 2.1. Forms Generally........................................... 33
ARTICLE III
THE SECURITIES........................... 40
SECTION 3.1 Amount Unlimited; Issuable in Series; Title and
Terms of the 1998 Securities.............................. 40
SECTION 3.2. Transfer and Exchange..................................... 42
SECTION 3.3. Execution, Authentication, Delivery and Dating............ 48
SECTION 3.4. Temporary Securities...................................... 49
SECTION 3.5. Registration.............................................. 49
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.......... 49
SECTION 3.7. Payment of Interest; Interest Rights Preserved............ 50
SECTION 3.8. Persons Deemed Owners..................................... 51
SECTION 3.9. Cancellation.............................................. 52
SECTION 3.10. Computation of Interest................................... 52
ARTICLE IV
SATISFACTION AND DISCHARGE..................... 52
SECTION 4.1. Satisfaction and Discharge of Any Series.................. 52
SECTION 4.2. Application of Monies for Satisfaction and Discharge..... 54
SECTION 4.3. Satisfaction and Discharge of Indenture................... 54
ARTICLE V
REDEMPTION.............................. 54
SECTION 5.1. Applicability of Article.................................. 54
SECTION 5.2. Notices to Trustee........................................ 54
SECTION 5.3. Selection of Securities To Be Redeemed.................... 55
SECTION 5.4. Notice of Redemption...................................... 55
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Page(s)
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SECTION 5.5. Effect of Notice of Redemption............................ 56
SECTION 5.6. Deposit of Redemption Price............................... 56
SECTION 5.7. Securities Redeemed in Part............................... 57
SECTION 5.8. Optional Redemption....................................... 57
ARTICLE VI
COVENANTS.............................. 58
SECTION 6.1. Payment of Securities..................................... 58
SECTION 6.2. Maintenance of Office or Agency........................... 58
SECTION 6.3. Corporate Existence....................................... 59
SECTION 6.4. Payment of Taxes and Other Claims; Tax Consolidation...... 59
SECTION 6.5. Compliance Certificates................................... 59
SECTION 6.6. SEC Reports............................................... 60
SECTION 6.7. Waiver of Stay, Extension or Usury Laws................... 61
SECTION 6.8. Maintenance of Properties; Insurance; Books and
Records; Compliance with Law.............................. 61
SECTION 6.9. Limitations on Indebtedness............................... 62
SECTION 6.10. Limitation on Liens....................................... 65
SECTION 6.11. Limitation on the Issuance of Preferred Stock by
Recourse Subsidiaries..................................... 66
SECTION 6.12. Intentionally Omitted..................................... 66
SECTION 6.13. Limitations on Restricted Payments........................ 66
SECTION 6.14. Limitations on Transactions with Stockholders and
Affiliates................................................ 68
SECTION 6.15. Restrictions on Asset Sales............................... 69
SECTION 6.16. Limitation on Dividend and Other Payment Restrictions
Affecting Recourse Subsidiaries........................... 73
SECTION 6.17. Limitation on Sale and Leaseback Transactions............. 74
SECTION 6.18. Intentionally Omitted..................................... 74
SECTION 6.19. Change of Control......................................... 74
SECTION 6.20. Limitations as to Non-Recourse Subsidiaries............... 76
SECTION 6.21. Impairment of Security Interest........................... 76
SECTION 6.22. Conflicting Agreements.................................... 76
SECTION 6.23. Amendment to Security Documents........................... 77
SECTION 6.24. Inspection................................................ 77
SECTION 6.25. Use of Proceeds........................................... 77
SECTION 6.26. Money for Security Payments to Be Held in Trust........... 77
SECTION 6.27. Limitation on Improvements to the Released Property....... 79
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Page(s)
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ARTICLE VII
SUCCESSOR CORPORATION....................... 79
SECTION 7.1. Merger and Consolidation.................................. 79
SECTION 7.2. Surviving Person Substituted.............................. 80
ARTICLE VIII
EVENTS OF DEFAULT.......................... 81
SECTION 8.1. Events of Default......................................... 81
SECTION 8.2. Acceleration of Maturity; Rescission and
Annulment................................................. 83
SECTION 8.3. Collection of Debt and Suits for Enforcement by
Trustee................................................... 84
SECTION 8.4. Trustee May File Proofs of Claims......................... 85
SECTION 8.5. Trustee May Enforce Claims Without Possession
of Securities............................................. 86
SECTION 8.6. Application of Money Collected............................ 86
SECTION 8.7. Limitation on Suits....................................... 87
SECTION 8.8. Unconditional Right of Holders to Receive
Principal and Interest.................................... 87
SECTION 8.9. Restoration of Rights and Remedies........................ 88
SECTION 8.10. Rights and Remedies Cumulative............................ 88
SECTION 8.11. Delay or Omission Not Waiver.............................. 88
SECTION 8.12. Control by Holders........................................ 88
SECTION 8.13. Waiver of Past Defaults................................... 89
SECTION 8.14. Undertaking for Costs..................................... 89
SECTION 8.15. Waiver of Stay or Extension Laws.......................... 90
SECTION 8.16. Collection Suit by Trustee................................ 90
ARTICLE IX
THE TRUSTEE........................... 90
SECTION 9.1. Certain Duties and Responsibilities....................... 90
SECTION 9.2. Notice of Defaults........................................ 91
SECTION 9.3. Certain Rights of Trustee................................. 91
SECTION 9.4. Not Responsible for Recitals or Issuance of
Securities................................................ 92
SECTION 9.5. May Hold Securities....................................... 93
SECTION 9.6. Money Held in Trust....................................... 93
SECTION 9.7. Compensation and Reimbursement............................ 93
SECTION 9.8. Disqualification; Conflicting Interests................... 94
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Page(s)
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SECTION 9.9. Corporate Trustee Required; Eligibility................... 94
SECTION 9.10. Resignation and Removal; Appointment of
Successor................................................. 94
SECTION 9.11. Acceptance of Appointment by Successor.................... 96
SECTION 9.12. Merger, Conversion, Consolidation or
Succession to Business.................................... 96
SECTION 9.13. Preferential Collection of Claims Against
Company................................................... 97
SECTION 9.14. Appointment of Authenticating Agent....................... 97
ARTICLE X
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........ 99
SECTION 10.1. Company to Furnish Trustee Names and
Addresses of Holders...................................... 99
SECTION 10.2. Preservation of Information; Communications to
Holders................................................... 99
SECTION 10.3. Reports by Trustee........................................ 100
SECTION 10.4. Reports by Company........................................ 100
ARTICLE XI
SUPPLEMENTAL INDENTURES..................... 100
SECTION 11.1. Supplemental Indentures without Consent of
Holders................................................... 100
SECTION 11.2. Supplemental Indentures with Consent of
Holders................................................... 102
SECTION 11.3. Execution of Supplemental Indentures...................... 103
SECTION 11.4. Effect of Supplemental Indentures......................... 103
SECTION 11.5. Conformity with Trust Indenture Act....................... 104
SECTION 11.6. Reference in Securities to Supplemental
Indentures................................................ 104
ARTICLE XII
COLLATERAL AND SECURITY....................... 104
SECTION 12.1. Collateral and Security Documents......................... 104
SECTION 12.2. Recording and Opinions.................................... 105
SECTION 12.3. Release of Collateral..................................... 106
SECTION 12.4. Possession and Use of Collateral.......................... 107
SECTION 12.5. Specified Releases of Collateral.......................... 107
SECTION 12.6. Disposition of Collateral Without Release................. 110
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Page(s)
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SECTION 12.7. Form and Sufficiency of Release........................... 110
SECTION 12.8. Purchaser Protected....................................... 111
SECTION 12.9. Authorization of Actions To Be Taken by The
Trustee Under the Security Documents...................... 111
SECTION 12.10. Authorization of Receipt of Funds by the
Trustee Under the Security Documents...................... 111
ARTICLE XIII
APPLICATION OF TRUST MONEYS................... 112
SECTION 13.1. Collateral Account........................................ 112
SECTION 13.2. Withdrawals of Insurance Proceeds and Condemnation Awards. 112
SECTION 13.3. Withdrawal of Trust Moneys for Asset Sale Offer........... 113
SECTION 13.4. Withdrawal of Trust Moneys for Permitted Related
Acquisitions.............................................. 114
SECTION 13.5. Withdrawal of Trust Moneys for Retention by
the Company or its Subsidiaries........................... 115
SECTION 13.6. Withdrawals of Proceeds from Certain Sales of Securities.. 116
SECTION 13.7. Investment of Trust Moneys................................ 117
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE.................. 117
SECTION 14.1. Company's Option to Effect Defeasance or
Covenant Defeasance....................................... 118
SECTION 14.2. Defeasance and Discharge.................................. 118
SECTION 14.3. Covenant Defeasance....................................... 118
SECTION 14.4. Conditions to Defeasance or Covenant Defeasance........... 119
SECTION 14.5. Deposited Money and U.S. Government Obligations to be
held in Trust; Other Miscellaneous Provisions............. 121
SECTION 14.6. Reinstatement............................................. 122
ARTICLE XV
INTERVENTION........................... 122
SECTION 15.1. Intervention.............................................. 122
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ANNEX
ANNEX A Terms of Subsidiary Guarantee
EXHIBITS
EXHIBIT A Form of Initial Note
EXHIBIT B Form of Exchange Note
EXHIBIT C Form of Company Security Agreement
EXHIBIT D Form of Mortgage (Louisiana)
EXHIBIT E Form of Subsidiary Security Agreement
EXHIBIT F Form of Intercreditor Agreement
EXHIBIT G Survey of Lucien Gassen, P.L.S.
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UNITED STATES OF
INDENTURE
AMERICA
BY
BAYOU STEEL CORPORATION STATE OF LOUISIANA
TO
FIRST NATIONAL BANK OF COMMERCE, PARISH OF ORLEANS
AS TRUSTEE
On this 22nd day of May 1998, before the undersigned, a Notary Public
duly commissioned and qualified in and for the above State and Parish and in the
presence of the undersigned competent witnesses, personally came and appeared:
BAYOU STEEL CORPORATION, a Delaware corporation (herein called the
"Company"), the Federal Employer Identification Number of which is 72-
1125783, represented herein by Richard J. Gonzalez, its Vice President,
duly authorized by resolutions of the Board of Directors of the Company;
Mailing address: P.O. Box 5000
River Road
LaPlace, LA 70069;
RIVER ROAD REALTY CORPORATION, a Louisiana corporation, the Federal
Employer Identification Number of which is 72-1162713, represented herein
by Richard J. Gonzalez, its Vice President, duly authorized by resolutions
of the Board of Directors of River Road Realty Corporation;
Mailing address: P.O. Box 5000
River Road
LaPlace, LA 70069;
BAYOU STEEL CORPORATION (TENNESSEE), a Delaware corporation, the Federal
Employer Identification Number of which is 62-1596494, represented herein
by Richard J. Gonzalez, its Vice President, duly authorized by resolutions
of the Board of Directors of Bayou Steel Corporation (Tennessee);
Mailing address: P.O. Box 5000
River Road
LaPlace, LA 70069; and
FIRST NATIONAL BANK OF COMMERCE, a national banking association, as Trustee
(herein called the "Trustee"), the Federal Employer Identification Number
of which is 72-0269760, represented by Denis Milliner, its Vice President
and Trust Officer.
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Mailing address: Trust Department
210 Baronne Street
New Orleans, LA 70112
who declared as follows:
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
9 1/2% First Mortgage Notes due 2008 (herein called the "1998 Initial Notes") of
substantially the tenor and amount hereinafter set forth and, if and when issued
in exchange for Initial Notes as provided in the Registration Rights Agreement
(as hereinafter defined), the Company's 9 1/2% First Mortgage Notes due 2008
(the "1998 Exchange Notes" and, together with the 1998 Initial Notes, the "1998
Securities"), and to provide therefor, and to provide for the issuance of
additional Securities from time to time as contemplated hereby, the Company has
duly authorized the execution and delivery of this Indenture.
All things necessary to make the 1998 Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company and the Subsidiary Guarantors, in accordance with
their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the 1998
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
3
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of this instrument; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" means, with respect to any specific Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specific Person. For the purposes of this
definition, "control," as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person whether through the ownership of voting
securities, or by agreement or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Members" has the meaning specified in Section 2.1(d).
"Aggregate Cash Proceeds" has the meaning specified in Section 6.13.
"Applicable Premium" means, with respect to a 1998 Security at any
redemption date, the greater of (i) 1.0% of the principal amount of such 1998
Security and (ii) the excess of (A) the present value at such time of (1) the
redemption price of such 1998 Security at 2003 (such redemption price being
described in Section 5.8(a) hereof) plus (2) all required interest payments due
on such 1998 Security through May 15, 2003, computed using a discount rate equal
to the Treasury Rate plus 50 basis points, over (B) the then outstanding
principal amount of such 1998 Security.
"Appraiser" means a Person who in the course of its business appraises
property and, where real property is involved, who is a member in good standing
of the Appraisal Institute, recognized and licensed to do business in the
jurisdiction where the applicable real property is situated, and who may be
employed by the Company.
"Asset Acquisition" means (i) any capital contribution (by means of
transfer of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock by the
4
Company or any of its Recourse Subsidiaries in any other Person, in either case
pursuant to which such Person shall become a Subsidiary of the Company or any of
its Subsidiaries or shall be merged with or into the Company or any of its
Subsidiaries or (ii) any acquisition by the Company or any of its Recourse
Subsidiaries of the assets of any Person which constitute substantially all of
an operating unit or business of such Person.
"Asset Backed Entity" means a Wholly Owned Subsidiary of the Company
(or another Person in which the Company or any Subsidiary of the Company makes
an Investment and to which the Company or any Subsidiary of the Company
transfers accounts receivable or inventory and related assets) which engages in
no activities other than in connection with the financing of accounts receivable
or inventory and which is designated by the Board of Directors of the Company
(as provided below) as an Asset Backed Entity, (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by the Company or any Subsidiary (excluding guarantees of obligations
(other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings) or (ii) is recourse to or obligates the
Company or any Subsidiary of the Company in any way or any Subsidiary of the
Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings, (b) with
which neither the Company nor any Subsidiary of the Company has any material
contract, agreement, arrangement or understanding other than on terms no less
favorable to the Company or such Subsidiary than those that might be obtained at
the time from Persons that are not Affiliates of the Company, other than fees
payable in the ordinary course of business in connection with servicing accounts
receivable or inventory, and (c) to which neither the Company nor any Subsidiary
of the Company has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of operating
results. Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease or other disposition (excluding the granting of Permitted Liens) of
property, rights or assets to any Person (including any Non-Recourse
Subsidiary), other than (a) pursuant to the sale of accounts receivable and
inventory and related assets of the type specified in the definition of
"Qualified Asset Backed Transaction" to an Asset Backed Entity for the fair
market value thereof, (b) to the Company or a Recourse Subsidiary of the
Company, in one transaction or a series of related transactions, of (i) any
Capital Stock of any Recourse Subsidiary of the Company or (ii) any other
property or asset of the Company or any Recourse Subsidiary of the Company, (c)
sales of products in the ordinary course of business and (d) sales of Capital
Stock of the Company.
"Asset Sale Offer" has the meaning specified in Section 6.15(b).
5
"Asset Sale Payment Date" has the meaning specified in Section
6.15(c).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 9.14 to act on behalf of the Trustee to authenticate
Securities.
"Available Amount" means the sum of Net Cash Proceeds of Asset Sales
less the sum of Net Cash Proceeds (i) previously applied to Permitted Related
Acquisitions, (ii) from the sale of Obsolete Assets not exceeding an aggregate
fair market value of $2,000,000 in any year, (iii) of $1,000,000 and (iv)
retained by the Company following an Asset Sale Offer that is not fully
subscribed as contemplated under Section 6.15.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
sum of the products of the numbers of the years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Bankruptcy Law" means Title 11, United States Code or any similar
Federal or state law for the relief of debtors, as amended.
"Board of Directors" means either the board of directors of the
Company or its Subsidiaries, as the case may be, or any duly authorized
committee of such boards or any duly authorized committee consisting of one or
more officers and/or directors of the Company, as the case may be.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or its Subsidiaries, as the
case may be, to have been duly adopted by the Board of Directors of the Company
or its Subsidiaries, as the case may be, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York City or New
Orleans are authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, warrants, options or other equivalents (however
designated and whether voting or non-voting) of capital stock of a corporation
and any and all equivalent ownership interests in a Person (other than a
corporation), in each case whether outstanding on the date of the Indenture or
thereafter issued, including, without limitation, all Common Stock and Preferred
Stock.
6
"Capitalized Lease" means as applied to any Person, any lease of any
property (whether real, personal or mixed) the discounted present value of the
rental obligations of such Person as lessee under which, in conformity with
GAAP, is required to be capitalized on the balance sheet of that Person.
"Capitalized Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a Capitalized
Lease.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of 365 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $250,000,000; (iii) commercial
paper with a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Company) organized under the laws of any state of the United
States or the District of Columbia and rated at least A-1 by Standard & Poors
Rating Service or at least P-1 by Moody's Investor Service.
"Certificated Securities" has the meaning set forth in Section
2.1(e).
"Change of Control" means the occurrence of one or more of the
following events:
(a) the direct or indirect sale, lease, exchange or other transfer of
all or substantially all of the assets of the Company to any Person or
entity or group of Persons or entities acting in concert as a partnership
or other group (a "Group of Persons") other than an Affiliate of the
Company;
(b) the consummation of any consolidation or merger of the Company
with or into another corporation with the effect that the stockholders of
the Company as of the date of the Indenture hold less than 51% of the
combined voting power of the outstanding voting securities of the surviving
entity of such merger or the corporation resulting from such consolidation
ordinarily having the right to vote in the election of directors (apart
from rights accruing under special circumstances) immediately after such
merger or consolidation;
(c) the stockholders of the Company shall approve any plan or
proposal for the liquidation or dissolution of the Company; and
(d) a Person or Group of Persons (other than management of the
Company and their respective Affiliates) shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become the direct or indirect beneficial owner (within the
meaning of Rule 13d-3
7
under the Exchange Act) of securities of the Company representing a
majority of the combined voting power of the then outstanding securities of
the Company ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors.
For purposes of this definition, the following shall not be considered
a Change of Control:
(i) Transfers of Capital Stock of the Company among (A) Meyers;
(B) any son, daughter, stepson, stepdaughter or spouse of Meyers; (C) any
lineal descendant of an individual referred to in clause (A) or (B); (D)
any trust in which one or more of the Persons referred to in clause (A),
(B) or (C) are principal beneficiaries; and (E) any entity described in
Section 501(c)(3) of the Internal Revenue Code, over which one or more of
the Persons (and no other Person) referred to in clause (A), (B) or (C)
actually has and exercises control; provided, that, if at any time any
Person other than a Person referred to in clause (A), (B) or (C) has the
ability to exercise control (whether or not shared) over any such entity,
any securities of the Company then owned by such entity shall be deemed to
be beneficially owned by a Person or Group of Persons other than a Person
referred to in clause (A), (B) or (C) for purpose of determining whether a
Change of Control has occurred; or
(ii) A merger resulting in the proportionate interest of the
Class B Common Stock held by Bayou Steel Properties Limited being held by
Bayou Steel Properties Limited's shareholders, provided such transaction
shall have no adverse effect on the Company.
"Change of Control Date" has the meaning specified in Section 6.19.
"Change of Control Offer" has the meaning specified in Section 6.19.
"Change of Control Payment Date" has the meaning specified in Section
6.19.
"Collateral" means, collectively, all of the property and assets
(including, without limitation, Trust Moneys) that are from time to time subject
to the Lien of the Security Documents.
"Collateral Account" means the collateral account to be established
pursuant to the Indenture.
"Collateral Agent" means the Trustee in its capacity as agent for the
Holders under the Security Documents.
"Collateral Proceeds" means the Net Cash Proceeds received by the
Collateral Agent from the sale of Collateral.
8
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Obligations" has the meaning specified in Section 12.1(a).
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Company Security Agreement" means the security agreement dated as of
the date hereof between the Company and the Trustee, in substantially the form
attached hereto as Exhibit C, as the same may be amended, supplemented or
otherwise modified from time to time.
"Condemnation Award" means any proceeds, award or payment paid to the
mortgagee or beneficiary under the Mortgages relating to any taking of the
Collateral subject to such Mortgage by condemnation or eminent domain or similar
action or sold pursuant to the exercise by the United States of America or any
state, municipality or other governmental authority of any right which it may
then have to purchase, or to designate a purchaser or to order a sale of, any
part of the Collateral, together with interest accrued thereon, less all
reasonable expenses incurred by the mortgagee or beneficiary in connection with
obtaining such award.
"Consolidated Domestic Income Tax Expense" of any Person for any
period means, without duplication, the aggregate amount of net U.S. taxes based
on income or profits for such period of the operations of such Person and its
Consolidated Recourse Subsidiaries, determined in accordance with GAAP (to the
extent such income or profits were included in computing Consolidated Net
Income).
"Consolidated Interest Expense" of any Person for any period means the
sum of (a) the interest expense (including amortization of original issue
discount and
9
non-cash interest payments or accruals) of such Person and its Consolidated
Recourse Subsidiaries for such period and (b) to the extent not included in
clause (a), all commissions, discounts and other fees and charges owed with
respect to letters of credit and banker's acceptance financing, the net cost
associated with Interest Rate Agreements and Currency Agreements, amortization
of other financing fees and expenses and the interest portion of any deferred
payment obligation.
"Consolidated Interest Income" of any Person means all amounts that
would be included under interest income on a consolidated income statement of
such Person and its Consolidated Recourse Subsidiaries determined in accordance
with GAAP, less accreted amounts attributable to original issue discount
securities prior to the receipt thereof and other non-cash interest payments or
accruals.
"Consolidated Net Income" of any Person for any period means the Net
Income of such Person and its Consolidated Recourse Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that there shall be excluded (i) the Net Income of any Person (other than a
Consolidated Recourse Subsidiary) in which such Person or any of its
Consolidated Recourse Subsidiaries has a joint interest with a third party
except to the extent of the amount of dividends or distributions actually paid
to such Person or a Recourse Subsidiary during such period; (ii) except to the
extent includable pursuant to the foregoing clause (i), the Net Income of any
Person accrued prior to the date it becomes a Recourse Subsidiary of such Person
or is merged into or consolidated with such Person or any of its Recourse
Subsidiaries or that Person's assets are acquired by such Person or any of its
Recourse Subsidiaries; (iii) the Net Income (if positive), or any portion
thereof, of any Recourse Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by that Recourse
Subsidiary to such Person or to any other Recourse Subsidiary of such Net Income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Recourse Subsidiary; (iv) without duplication, any
gains or losses attributable to Asset Sales; (v) Net Income, arising from the
adoption of changes in accounting policy to comply with GAAP or voluntarily by
the Company with the consent of its independent auditors that so qualify under
Regulation S-X of the Securities Act; (vi) Net Income arising in connection with
a merger, combination or consolidation that is accounted for as a pooling of
interests; and (vii) foreign currency translation gains and losses.
"Consolidated Net Worth" of any Person means as of any date all
amounts that would be included under stockholders' equity on a consolidated
balance sheet of such Person and its Consolidated Recourse Subsidiaries
determined in accordance with GAAP.
"Consolidated Recourse Subsidiary" of any Person means a Recourse
Subsidiary which for financial reporting purposes is or, in accordance with
GAAP, should be, accounted for by such Person as a consolidated Subsidiary.
10
"Corporate Trust Office" means the principal office of the Trustee in
New Orleans at which at any particular time its corporate trust business shall
be administered.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event which is, or after the giving of notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means The Depository Trust Company, its nominees and
their respective assigns, or such other depository institution hereinafter
appointed by the Company.
"Disqualified Stock" means any Capital Stock which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), 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 final
maturity date of the Securities.
"EBITDA" of any Person for any period means the sum of (a)
Consolidated Net Income of such Person; (b) Consolidated Domestic Income Tax
Expense of such Person; (c) Consolidated Interest Expense of such Person; and
(d) depreciation and amortization expense determined on a consolidated basis for
such Person and its Consolidated Recourse Subsidiaries in accordance with GAAP
for such period; and (e) other non-cash charges; provided, that the amounts set
forth in clauses (b), (c), (d) and (e) will be included only to the extent such
amounts were deducted in computing Consolidated Net Income. Notwithstanding the
foregoing, the amounts set forth in clauses (b), (c), and (d) in respect of a
Recourse Subsidiary of a Person shall be added to Consolidated Net Income to
compute EBITDA of such Person only to the extent (and in the same proportion)
that the net income of such Recourse Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"EBITDA Ratio" means the ratio, on a pro forma basis, of (a) EBITDA of
any Person for the Reference Period immediately prior to the date of the
transaction giving rise to the need to calculate the EBITDA Ratio (the
"Transaction Date") to (b) the Net
11
Interest Expense of such Person during such Reference Period; provided, that in
making such computation, (i) the incurrence of the Indebtedness giving rise to
the need to calculate the EBITDA Ratio and the application of the proceeds
therefrom shall be assumed to have occurred on the first day of the Reference
Period; (ii) Asset Sales and Asset Acquisitions which occur during the Reference
Period or subsequent to the Reference Period but prior to the Transaction Date
(but including any Asset Acquisition to be made with such Indebtedness) shall be
assumed to occur on the first day of the Reference Period; (iii) the issuance of
any Indebtedness (other than Indebtedness borrowed under a revolving credit or
similar arrangement which Indebtedness is not outstanding on the Transaction
Date) during the Reference Period or subsequent to the Reference Period but
prior to the Transaction Date and the application of the proceeds therefrom
shall be assumed to have occurred on the first day of the Reference Period; (iv)
the Consolidated Interest Expense attributable to interest on any Indebtedness
(whether existing or being incurred but not including Indebtedness borrowed
under a revolving credit or similar arrangement which Indebtedness is not
outstanding on the Transaction Date) computed on a pro forma basis and bearing a
floating interest rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period, unless such
Person or any of its Recourse Subsidiaries is a party to an Interest Rate
Agreement which has the effect of reducing the interest rate below the rate on
the date of computation, in which case such lower rate shall be used; (v) there
shall be excluded from Consolidated Interest Expense any Consolidated Interest
Expense related to any Indebtedness which was outstanding during and subsequent
to the Reference Period but is not outstanding on the Transaction Date, except
for Consolidated Interest Expense actually incurred with respect to Indebtedness
borrowed under a revolving credit or similar arrangement to the extent the
commitment thereunder remains in effect on the Transaction Date and (vi) if the
transaction giving rise to the need to calculate the EBITDA Ratio is an Asset
Acquisition, in calculating Consolidated Net Income for the Reference Period,
there shall be deducted from the calculation of expenses all cost savings
resulting from employee terminations, facilities consolidations and closings,
standardization of employee benefits and compensation practices, consolidation
of property, casualty and other insurance coverage and policies, standardization
of sales representation commissions and other contract rates, and reductions in
taxes other than income taxes (collectively, "Cost Savings Measures"), which
cost savings the Company reasonably believes in good faith (i) would have been
achieved during the Reference Period as a result of such Asset Acquisition, (ii)
are directly attributable to such Asset Acquisition and (iii) will have a
recurring impact on the Company (regardless of whether such cost savings could
then be reflected in pro forma financial statements under GAAP, Regulation S-X
promulgated by the Commission or any other regulation or policy of the
Commission); provided, that both (A) such cost savings and Cost Savings Measures
were identified and such cost savings were quantified in an officer's
certificate delivered to the Trustee at the time of the consummation of the
Asset Acquisition, (B) with respect to each Asset Acquisition completed prior to
the 90th day preceding such date of determination, actions were commenced or
initiated by the Company within 90 days of such Asset Acquisition to effect the
Cost Savings Measures identified in such officer's
12
certificate (regardless, however, of whether the corresponding cost savings were
ultimately achieved). For the purposes of making the computation referred to in
the preceding sentence, Asset Sales and Asset Acquisitions which have been made
by any Person which has become a Recourse Subsidiary of the Company or been
merged with or into the Company or any Recourse Subsidiary of the Company during
the Reference Period or subsequent to the Reference Period and prior to the
Transaction Date shall be calculated on a pro forma basis (including all of the
calculations referred to in numbers (i) through (vi) of the preceding sentence)
assuming such Asset Sales or Asset Acquisitions occurred on the first day of the
Reference Period.
"Event of Default" has the meaning specified in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Global Note" has the meaning specified in Section 2.1(a).
"Exchange Notes" means the 1998 Exchange Notes and any other notes of
the Company issued in exchange for Initial Notes pursuant to an exchange and
registration rights agreement substantially in the form of the Registration
Rights Agreement.
"Financial Advisor" means an investment banking firm of national
reputation which (except as otherwise expressly provided in this Indenture) may
be employed by the Company.
"Fixtures and Equipment" means fixtures, machinery, tools, equipment
(including rolling equipment classified as inventory on the Company's books and
records) and similar personal property.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time, including, without limitation, those 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 may be approved by a significant segment of
the accounting profession of the United States, which are applicable as of the
date of determination.
"Global Securities" has the meaning specified in Section 2.1(a).
"Guarantee" means, as applied to any Indebtedness, (a) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such Indebtedness, and (b) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure the payment or
performance (or payment of damages in the event of nonperformance) of any part
or all of such Indebtedness, including, without limiting
13
the foregoing, the payment of amounts drawn under letters of credit. The amount
of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
is made (unless such Guarantee shall be expressly limited to a lesser amount, in
which case such lesser amount shall apply) or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person means at any date, without duplication,
(a) all obligations of such Person for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments; (b) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto); (c) all obligations of such
Person to pay the deferred purchase price of property or services, except Trade
Payables; (d) all Capitalized Lease Obligations of such Person; (e) all
Indebtedness of others secured by a Lien on any asset of such Person, whether or
not such Indebtedness is assumed by such Person, provided that, for purposes of
determining the amount of any Indebtedness of the type described in this clause,
if recourse with respect to such Indebtedness is limited to such asset, the
amount of such Indebtedness shall be limited to the fair market value of the
asset; (f) to the extent not otherwise included, all obligations under Interest
Rate Agreements and Currency Agreements; (g) all Guarantees of such Person in
respect of Indebtedness of others; and (h) all Disqualified Stock issued by such
Person and all Preferred Stock issued by the Recourse Subsidiaries of such
Person (the amount of Indebtedness represented by any Disqualified Stock or
Preferred Stock will be the greater of the voluntary or involuntary liquidation
preference thereof).
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Independent" when used with respect to any specified Person means
such a Person who (a) is in fact independent, (b) does not have any direct
financial interest or any material indirect financial interest in the Company or
in any other obligor in respect of the Securities or in any Affiliate of the
Company or such other obligor and (c) is not an officer, employee, promotor,
underwriter, trustee, partner, director or person performing similar functions
to any of the foregoing for the Company or such other obligor or any Affiliate
thereof. Whenever it is provided in the Indenture that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by the Company and approved by the Trustee in the exercise
14
of reasonable care, and such opinion or certificate shall state that the signer
has read this definition and that the signer is Independent within the meaning
thereof.
"Initial Notes" means the 1998 Initial Notes and any other series of
Securities issued pursuant to this Indenture, prior to the exchange thereof for
Exchange Notes.
"Institutional Accredited Investor Global Note" has the meaning
specified in Section 2.1(a).
"Institutional Accredited Investor Note" has the meaning specified in
Section 2.1(a).
"Integral Fixtures and Equipment" means all Fixtures and Equipment
now or hereafter located at the Mortgaged Facility other than (i) all vehicles
and mobile equipment subject to certificate of title laws, in each instance with
a fair market value of $100,000 or less and (ii) any Fixtures and Equipment
acquired (whether such acquisition is denominated as a purchase, a Capitalized
Lease or otherwise) by the Company or a Recourse Subsidiary after the date of
this Indenture and whose (x) acquisition adds supplemental production, handling
or performance capacity to the Mortgaged Facility rather than merely replacing
Fixtures and Equipment forming part of the Mortgaged Facility as in existence
immediately prior to the acquisition in question and (y) subsequent removal from
service will have no material adverse impact on the operations in the ordinary
course of business of the Mortgaged Facility as in existence immediately prior
to the acquisition in question, in each instance under clauses (x) or (y), as
conclusively established by a Board Resolution.
"Intercreditor Agreement" means the Intercreditor Agreement dated of
even date herewith between the Trustee and The Chase Manhattan Bank, as agent
for the financial institutions parties to the New Credit Facility, in
substantially the form of Exhibit F hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge agreement, to or under which the
Company or any of its Subsidiaries is a party or a beneficiary on the date of
the Indenture or becomes a party or a beneficiary thereafter.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
15
"Investment" of any Person means all investments in other Persons in
the form of loans, advances or capital contributions of cash or other assets
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), and purchases (or other acquisitions
for consideration) or Guarantees of Indebtedness, Capital Stock or other
securities issued by any other Person.
"Issue Date" when used with respect to any Security, means the
original date of issuance of such Security.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided,
that as to any such arrangement in corporate form, such corporation shall not,
as to any Person of which such corporation is a Subsidiary, be considered to be
a Joint Venture to which such Person is a party.
"Lenders" means the lenders who are from time to time parties to the
New Credit Facility.
"Lender Secured Property" means the properties and assets of the
Company, and the proceeds thereof, that secure the obligations of the Company
under the New Credit Facility.
"Lien" means, with respect to any property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
property. For the purposes of the Indenture and the Security Documents, the
Company and its Subsidiaries shall be deemed to own subject to a Lien any
property which they have acquired or hold subject to the interest of a vendor or
lessor under any conditional sales agreement, capital lease or other title
retention agreement relating to such property.
"Majority-Owned Non-Recourse Subsidiary" means a Majority-Owned
Subsidiary that is a Non-Recourse Subsidiary.
"Majority-Owned Subsidiary" means, with respect to any Person, a
Subsidiary of which more than 50% of the Capital Stock (other than any
director's qualifying stock), or in the case of a non-corporate Subsidiary,
other equity interests having ordinary voting power for the election of
directors or other governing body of such Subsidiary, is owned by such Person or
another Majority-Owned Subsidiary of such Person.
"Maturity Date" when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, Asset Sale Offer, Change of Control Offer or
otherwise.
16
"Meyers" means Howard M. Meyers, an individual with a business address
on the 1998 Issue Date at 2777 Stemmons Freeway, Dallas, Texas.
"Mortgage" means each mortgage (or deed of trust), dated as of the
date hereof, between the Company and the Trustee or between a Recourse
Subsidiary of the Company and the Trustee, in either case in substantially the
form of Exhibit D, as the same may be amended, supplemented or modified from
time to time in accordance with its terms.
"Mortgaged Facility" means the real property interests in the
minimill, stocking location and land owned by the Company and its Recourse
Subsidiaries in LaPlace, Louisiana and the real property interests in all other
real property additions or improvements now or hereafter located on such land,
together with all additions or improvements thereto, which term shall be deemed
to exclude the Released Property, if any.
"1998 Exchange Notes" has the meaning specified in the recitals
hereto.
"1998 Initial Notes" has the meaning specified in the recitals hereto.
"1998 Issue Date" means the Issue Date of the 1998 Initial Notes.
"1998 Securities" has the meaning specified in the recitals hereto.
"Net Cash Proceeds" from a sale, transfer or other disposition (other
than from the granting of a Permitted Lien thereon) of properties or assets
means cash payments received (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise, but only as and when received (including any cash received upon sale
or disposition of such note or receivable), excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or
other obligations relating to such properties or assets or received in any other
non-cash form) therefrom, in each case, net of all legal, title and recording
tax expenses, commissions and other fees and expenses incurred, and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
under GAAP as a consequence of such sale, transfer or other disposition, and in
each case net of appropriate amounts to be provided by the Company or its
Recourse Subsidiaries as a reserve, in accordance with GAAP, against any
liabilities associated with such assets and retained by the Company or any
Recourse Subsidiary after such sale, transfer or other disposition, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters and the after-tax cost of any
indemnification payments (fixed and contingent) attributable to seller's
indemnities to the purchaser undertaken by the Company or any of its Recourse
Subsidiaries in connection with such sale, transfer or other disposition (but
excluding any payments, which by the terms of the indemnities will not, under
any circumstances, be made during the term of the Securities) and net of all
payments made on any
17
Indebtedness which is secured by such assets, in accordance with the terms of
any Lien upon or with respect to such assets or which must by its terms, or in
order to obtain a necessary consent to such asset disposition, or by applicable
law be repaid out of the proceeds from such sale, transfer or other disposition,
and net of all distributions and other payments made to minority interest
holders in Subsidiaries or Joint Ventures as a result of such sale, transfer or
other disposition.
"Net Income" of any Person for any period means the net income (loss)
of such Person for such period, determined in accordance with GAAP, except that
(i) extraordinary items, (ii) unusual and non-recurring gains and losses and
(iii) unusual and non-recurring expenses, in the case of clauses (i), (ii) and
(iii) as determined in accordance with GAAP, shall be excluded; provided, that
non-recurring expenses shall not be excluded if the event or circumstances
giving rise to such expenses is continuing or exists on the last day of the
period for which Net Income is calculated.
"Net Insurance Proceeds" means all proceeds paid to the Collateral
Agent or any mortgagee or beneficiary under the Security Documents relating to
damage to, or loss or destruction of, improvements on equipment constituting
Collateral, together with interest earned thereon, less all reasonable expenses
incurred by the Collateral Agent, mortgagee or beneficiary in connection with
obtaining such proceeds.
"Net Interest Expense" means the difference between Consolidated
Interest Expense and Consolidated Interest Income; provided, that such amount
shall not be less than zero.
"New Credit Facility" means the Credit Agreement, dated as of May 22,
1998, among the Company, the Lenders named therein, or any renewal, replacement,
refinancing or continuation thereof as each of the foregoing may be amended,
supplemented or otherwise modified from time to time.
"Non-Collateral Proceeds" means the Net Cash Proceeds of any Asset
Sale that does not represent Collateral Proceeds.
"Non-Recourse Indebtedness" means Indebtedness of a Non-Recourse
Subsidiary where (a) neither the Company nor any Recourse Subsidiary: (i)
provides any Guarantee or credit support for such Indebtedness (including any
undertaking, guaranty, indemnity, agreement or instrument which would constitute
Indebtedness); or (ii) is directly or indirectly liable for such Indebtedness;
and (b) no default with respect to such Indebtedness (including any rights which
the holder thereof may have to take enforcement action against such Non-Recourse
Subsidiary) would permit (upon notice, lapse of time or both) any holder or
holders of other Indebtedness of the Company or any Recourse Subsidiary
(excluding Indebtedness in an aggregate principal amount not to exceed
$5,000,000 at any time) to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity.
18
"Non-Recourse Subsidiary" means a special purpose Subsidiary of the
Company or any of its Subsidiaries formed to acquire securities or assets of a
third party and which, in any case, (i) has no Indebtedness other than Non-
Recourse Indebtedness and (ii) does not, directly or indirectly, own any
Indebtedness, stock or securities of, and has no Investment in, the Company or
any Recourse Subsidiary.
"Obsolete Assets" has the meaning specified in Section 6.15(b).
"Offering Memorandum" means the Offering Memorandum dated May 19, 1998
pursuant to which the 1998 Initial Notes were offered.
"Officer" means any of the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, any Vice President, the
Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" means, when used with respect to the Company
or any Subsidiary Guarantor, a certificate signed by the Chairman of the Board,
the President, a Vice Chairman of the Board or the Chief Financial Officer of
the Company or such Subsidiary Guarantor, as the case may be, or any other
officer identified by any of the foregoing officers in an Officers' Certificate
to be an executive officer of the Company or such Subsidiary Guarantor, as the
case may be, and the Secretary, an Assistant Secretary or the Controller of the
Company or such Subsidiary Guarantor, as the case may be. One of the officers
signing an Officers' Certificate given pursuant to Section 6.5 shall be the
principal executive, financial or accounting officer of the Company or the
applicable Subsidiary Guarantor, as the case may be.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company, or who may be
other counsel satisfactory to the Trustee.
"Other Consideration" has the meaning specified in Section 6.15(a).
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided, that if such Securities are
to be redeemed, notice of
19
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Permanent Regulation S Global Note" has the meaning specified in
Section 2.1(a).
"Permitted Easement" means all rights-of-way, easements, rights of use
or similar rights (generally designated under Louisiana law as "servitudes")
granted by the Company over the Mortgaged Facility for the purpose of
constructing and operating a Released Property Facility which, in the aggregate,
do not materially (i) diminish the value of the Mortgaged Facility or (ii)
interfere with the ordinary conduct of the business of the Company and its
Recourse Subsidiaries, in each instance under clauses (i) or (ii), as
conclusively established by a Board Resolution.
"Permitted Investment" means (i) advances and loans to, and
Investments in, any Recourse Subsidiary by the Company and advances or loans to,
and Investments in, the Company or any Recourse Subsidiary of the Company by any
Subsidiary; (ii) cash and Cash Equivalents held by the Company and its Recourse
Subsidiaries; (iii) advances and loans by the Company and its Recourse
Subsidiaries to officers and employees in the ordinary course of business not to
exceed $100,000 in the aggregate at any one time outstanding; (iv) advances or
loans by the Company in connection with Currency Agreements provided such
agreements are made in the ordinary course of business; (v) advances or loans by
the Company in connection with Interest Rate Agreements provided such agreements
are made in the ordinary course of
20
business; (vi) Investments by the Company and its Recourse Subsidiaries in
exchange for assets sold or otherwise disposed of in accordance with the
covenants and agreements set forth in Section 6.15; (vii) Investments by the
Company and its Recourse Subsidiaries in the form of advances, extensions of
credit, progress payments and prepayments for assets purchased by it in the
ordinary course of business; (viii) accounts receivable arising and trade credit
granted in the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;
(ix) any Investment by the Company or any Recourse Subsidiary of the Company in
a Person that is engaged in a similar business if as a result of such Investment
(a) such Person becomes a Recourse Subsidiary or (b) such Person, in one
transaction or a series of concurrent 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 Recourse
Subsidiary; (x) any Investment acquired by the Company or any of its
Subsidiaries (a) in exchange for any other Investment or accounts receivable
held by the Company or any such 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 a foreclosure by
the Company or any of its Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured Investment in default; (xi)
Investments the payment for which consists of Capital Stock of the Company
(other than Disqualified Stock); and (xii) other Investments not to exceed
$15,000,000 in the aggregate.
"Permitted Liens" means (i) Liens in favor of the Collateral Agent or
the Holders of each series of Securities, including Liens created by the
Securities, the Indenture and the Security Documents; (ii) Liens on the Lender
Secured Property to secure the New Credit Facility and Liens on the Tulsa and
Chicago stocking locations; (iii) Liens on the property of the Company or any of
its Recourse Subsidiaries created solely for the purpose of securing purchase
money obligations; provided, that (a) such property so acquired is for use in
the Company's business and (b) no such Lien shall extend to or cover other
property or assets of the Company and its Recourse Subsidiaries other than the
respective property or assets so acquired and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the original
purchase price of such property or assets; (iv) Liens on the assets of any
entity existing at the time such entity or assets are acquired by the Company or
any of its Recourse Subsidiaries, whether by merger, consolidation, purchase of
assets or otherwise; provided, however, that such Liens (a) are not created,
incurred or assumed in connection with, or in contemplation of, such assets
being acquired by the Company or any of its Recourse Subsidiaries and (b) do not
extend to any other property of the Company or any of its Recourse Subsidiaries;
(v) Liens in existence on the date of the Indenture; (vi) Liens securing Private
Activity Bonds, as such term is defined in the Internal Revenue Code; provided,
that any Lien permitted by this clause (vi) shall not extend to any other
property of the Company or any of its Subsidiaries; (vii) Liens for taxes,
assessments,
21
governmental charges or claims which are not yet delinquent or which are being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor; (viii) other Liens incidental to the conduct of
the Company's and its Recourse Subsidiaries' business or the ownership of its
property and assets not securing any Indebtedness, and which do not in the
aggregate materially detract from the value of the Company's and its Recourse
Subsidiaries' property or assets when taken as a whole, or materially impair the
use thereof in the operation of its business (including, without limitation,
Liens securing any obligation to landlords, vendors, carriers, warehousemen,
mechanics, laborers and materialman and other similar obligations arising by
operation of law not yet delinquent or which are being contested in good faith
by appropriate proceedings, if a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made therefor);
(ix) Liens with respect to assets of a Recourse Subsidiary granted by such
Recourse Subsidiary to the Company to secure Indebtedness owing to the Company;
(x) Liens on assets owned by Non-Recourse Subsidiaries to secure Non-Recourse
Indebtedness; (xi) Liens on assets not constituting Collateral to secure senior
Indebtedness; (xii) pledges and deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security; (xiii) deposits made to secure the performance of tenders,
bids, leases, statutory obligations, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of a like
nature incurred in the ordinary course of business (exclusive of obligations for
the payment of borrowed money); (xiv) zoning restrictions, servitudes,
easements, rights-of-way, mineral reservations, building and subdivision
restrictions, levee, road and other riparian landowner obligations and other
similar charges or encumbrances 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
interfere with the ordinary conduct of the business of the Company or its
Recourse Subsidiaries; (xv) Permitted Easements; (xvi) Liens arising out of
judgments or awards against the Company or any Recourse Subsidiary with respect
to which the Company or such Recourse Subsidiary is prosecuting an appeal or
proceeding for review and the Company or such Recourse Subsidiary is maintaining
adequate reserves in accordance with GAAP; (xvii) any interest or title of a
lessor in the property subject to any Capitalized Lease Obligation or operating
lease; (xviii) Liens on assets transferred to an Asset Backed Entity or on
assets of an Asset Backed Entity incurred in connection with a Qualified Asset
Backed Transaction; (xix) other Liens on assets with an aggregate book value not
in excess of 7 1/2% of the book value of the Company's total assets as shown on
the Company's most recent consolidated balance sheet; (xx) obligations under
Interest Rate Agreements and Currency Agreements entered into in the ordinary
course of business; (xxi) Liens by a depositary or financial institution on
funds deposited with such institution arising in the ordinary course of business
under standard account agreements or by operation of law; and (xxii) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing
clauses; provided, that the principal amount of Indebtedness secured thereby
shall not
22
exceed the principal amount of Indebtedness so secured immediately prior to the
time of such extension, renewal or replacement, and that such extension,
renewal, or replacement Lien shall be limited to all or a part of the property
which secured the Lien so extended, renewed or replaced (plus improvements on
such property).
"Permitted Payments" means, with respect to the Company or any of its
Recourse Subsidiaries, (a) any dividend on shares of Capital Stock payable
solely in shares of Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to purchase Capital Stock (other than Disqualified
Stock); (b) any dividend, other distribution, loan or advance to the Company by
any of its Subsidiaries or by a Subsidiary to a Recourse Subsidiary and any
dividends payable by a Recourse Subsidiary on its Common Stock; (c) any
defeasance, redemption, repurchase or other acquisition for value of any
Indebtedness of the Company with the proceeds from the issuance of (i)
Indebtedness which is subordinate to the Securities at least to the extent and
in the manner as the Indebtedness to be defeased, redeemed, repurchased or
otherwise acquired is subordinate to the Securities; provided, however, that (1)
such newly-issued subordinated Indebtedness provides for no payments of
principal by way of sinking fund, mandatory redemption, defeasance or otherwise
by the Company or its Recourse Subsidiaries (including, without limitation, at
the option of the holder thereof other than an option given to a holder pursuant
to a "Change of Control" covenant which (x) is no more favorable to the holders
of such Indebtedness than the provisions in favor of the Holders and (y) such
Indebtedness provides that the Company or its Recourse Subsidiaries will not
repurchase such Indebtedness pursuant to such provisions prior to the Company's
repurchase of the 1998 Securities required to be repurchased by the Company upon
a Change of Control) prior to the maturity of the Indebtedness being replaced
and (2) the proceeds of such new Indebtedness are utilized for such purpose
within 45 days of issuance or (ii) Capital Stock (other than Disqualified
Stock); and (d) the redemption or repurchase by a Wholly-Owned Recourse
Subsidiary of its Capital Stock owned by the Company or another Wholly-Owned
Recourse Subsidiary.
"Permitted Related Acquisition" means acquisitions of property and
assets used in lines of business related to the Company's or one of its Recourse
Subsidiaries' business at such time.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock whether now outstanding or issued
after the Issue Date, and includes, without limitation, all classes and series
of preferred or preference stock.
23
"Private Exchange Securities" shall have the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" has the meaning specified in Section
2.1(c).
"Purchase Agreement" has the meaning specified in Section 2.1(a).
"QIB" has the meaning specified in Section 3.2(a).
"Qualified Asset Backed Transaction" means any transaction or series
of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to (a) an Asset Backed Entity (in the case of a
transfer by the Company or any of its Subsidiaries) and (b) any other Person (in
the case of a transfer by an Asset Backed Entity), or may grant a security
interest in, inventory, any accounts receivable (whether now existing or arising
in the future) of the Company or any of its Subsidiaries, and any assets related
thereto, including, without limitation, all collateral securing such accounts
receivable, all contracts and all guarantees or other obligations in respect of
such accounts receivable, proceeds of such accounts receivable and other assets
which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving inventory or accounts receivable.
"Receivables Fees" means distributions or payments made directly or by
means of discounts with respect to any participation interest issued or sold in
connection with, and other fees paid to a Person that is not a Recourse
Subsidiary in connection with, any Qualified Asset Backed Transaction.
"Recourse Subsidiary" means any Subsidiary other than a Non-Recourse
Subsidiary.
"Reference Period" means the four fiscal quarters for which financial
information is available preceding the date of a transaction giving rise to the
need to make a financial calculation.
"Registered Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement, or, if applicable, a similar agreement.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement, dated May 22, 1998, among the Company, Chase Securities Inc.,
BT Alex. Brown and PaineWebber Incorporated.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the 1998 Securities means the May 1 or November 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date and
for the interest
24
payable on any Interest Payment Date on the Securities of any series other than
the 1998 Securities means the date specified for such purpose as contemplated by
Section 3.1(a).
"Regulation S" has the meaning specified in Section 2.1(a).
"Regulation S Global Note" has the meaning specified in Section
2.1(a).
"Regulation S Legend" has the meaning specified in Section 2.1(c).
"Regulation S Note" has the meaning specified in Section 2.1(a).
"Released Interests" has the meaning specified in Section 12.5(b).
"Released Property" means up to 36 acres of undeveloped land
comprising part of the Mortgaged Facility which shall be selected by the Company
in one or more parcels from approximately 54 acres of undeveloped land
designated as land subject to being released from the Mortgage on that certain
survey by Lucien Gassen, P.L.S., attached as Exhibit G hereto, from and after
the time such land is released from the Lien of the Indenture and the Security
Documents as provided under Article XII.
"Released Property Facilities" has the meaning specified in Section
6.27.
"Released Trust Moneys" has the meaning specified in Section 13.4.
"Resale Restriction Termination Date" has the meaning specified in
Section 3.2(a).
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any Trust Officer or assistant Trust Officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means any Investment in any Person other than
a Recourse Subsidiary of the Company.
"Restricted Payment" means, with respect to any Person, (a) any
dividend or other distribution on any shares of such Person's Capital Stock
(other than dividends or distributions payable in Capital Stock that is not
Disqualified Stock); (b) any payment on account of the purchase, redemption,
retirement or other acquisition of (i) any shares
25
of such Person's Capital Stock or (ii) any option, warrant or other right to
acquire shares of such Person's Capital Stock; (c) any defeasance, redemption,
repurchase or other acquisition or retirement of value prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment of any
Indebtedness ranked subordinate in right of payment to the Securities (other
than in connection with the refunding or refinancing of such Indebtedness); and
(d) any Restricted Investment; provided, however, that "Restricted Payments"
shall not include any payment or investment described in (a), (b), (c) or (d)
above made by a Subsidiary to the Company or to a Recourse Subsidiary of the
Company.
"Restricted Period" means with respect to any series of Securities,
the period prior to and including the 40th day after the later of the
commencement of the offering of such series of Securities and the Issue Date of
such series of Securities.
"Retained Trust Moneys" has the meaning specified in Section 13.5.
"Rule 144A" has the meaning specified in Section 2.1(a).
"Rule 144A Global Note" has the meaning specified in Section 2.1(a).
"Rule 144A Note" has the meaning specified in Section 2.1(a).
"Sale and Leaseback Transaction" means, with respect to any Person, an
arrangement with any bank, insurance company or other lender or investor or to
which such lender or investor is a party, providing for the leasing by such
Person or any of its Recourse Subsidiaries of any property or asset of such
Person or any of its Recourse Subsidiaries which has been or is being sold or
transferred by such Person or such Recourse Subsidiary to such lender or
investor or to any person to whom funds have been or are to be advanced by such
lender or investor on the security of such property or asset.
"Securities" means any securities authenticated and delivered under
this Indenture.
"Security Documents" means, collectively, (i) the Mortgages, (ii) the
Company Security Agreement, (iii) the Subsidiary Security Agreements, (iv) the
Subsidiary Guarantees, (iv) the Collateral Agency and Intercreditor Agreement
and (v) any other mortgage, security agreement or other agreement evidencing a
security interest executed in accordance with Section 12.1 after the date
hereof.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
26
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts
receivable and inventory securitization transactions.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Steel Business Assets" has the meaning set forth in Section 6.15(a).
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which 50% or more of the Capital Stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by such Person.
"Subsidiary Guarantee" means each Guarantee pursuant to Section 15.1
hereof and each Guarantee given or made subsequent to the date hereof pursuant
to Section 12.1(a).
"Subsidiary Guarantor" means each Recourse Subsidiary of the Company
which is, or from time to time becomes, a party to this Indenture.
"Subsidiary Security Agreement" means each Security Agreement dated as
of the date hereof, or with respect to Persons that become Recourse Subsidiaries
of the Company subsequent to the date hereof, as of such subsequent date,
between the Trustee and each Recourse Subsidiary of the Company, substantially
in the form of Exhibit E hereto, as the same may be amended, supplemented or
otherwise modified from time to time.
"Temporary Regulation S Global Note" has the meaning specified in
Section 2.1(a).
"Transaction" has the meaning specified in Section 6.14.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled 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 redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the
period from the redemption date to May 15, 2003; provided, however, that if the
period from the redemption date to May 15, 2003 is not equal to the constant
maturity of a United States Treasury security for which a
27
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 yield of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to May 15, 2003 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.
"Trust Moneys" means all cash or Cash Equivalents received by the
Collateral Agent (a) as Net Cash Proceeds received by the Company and its
Recourse Subsidiaries from Asset Sales to be subject to the Lien of the Security
Documents in accordance with the covenants and agreements set forth in Section
6.15; (b) as Condemnation Awards with respect to all or any part of the
Collateral; (c) as Net Insurance Proceeds with respect to all or any part of the
Collateral; (d) as proceeds from the issuance of Securities to the extent
provided in Section 6.9; (e) as proceeds of any other sale or other disposition
of all or any part of the Collateral by or on behalf of the Collateral Agent or
any collection, recovery, receipt, appropriation or other realization of or from
all or any part of the Collateral pursuant to the Security Documents or
otherwise; (f) for application under Article XIII as elsewhere provided in this
Indenture or the Security Documents or whose disposition is not elsewhere
specifically provided for in the Indenture or the Security Documents; provided,
however, that Trust Moneys shall not include any property deposited with the
Trustee pursuant to Article IV or XIV or Section 5.6 or delivered to or received
by the Trustee for application in accordance with Section 8.6 hereof. Trust
Moneys shall be held by the Trustee for the benefit of the Holders of Securities
of all series as a part of the Collateral and, upon any entry upon or sale or
other disposition of the Collateral or any part thereof pursuant to the Security
Documents, said Trust Moneys shall be applied in accordance with Section 8.6;
but prior to any such entry, sale or other disposition, all or any part of the
Trust Money may be withdrawn, and shall be released, paid or applied by the
Trustee, from time to time as provided in Article XIII.
"Trust Moneys Release Notice" has the meaning specified in Section
13.4.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.
28
"Trust Officer" means any Vice President, any Assistant Vice President
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
"Valuation Date" has the meaning specified in Section 12.5(b).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly-Owned Non-Recourse Subsidiary" means a Wholly-Owned Subsidiary
that is a Non-Recourse Subsidiary.
"Wholly-Owned Recourse Subsidiary" means a Wholly-Owned Subsidiary
that is a Recourse Subsidiary.
"Wholly-Owned Subsidiary" means, with respect to any Person, a
Subsidiary of which at least 95% of the Capital Stock (other than any director's
qualifying stock), or in the case of a non-corporate Subsidiary, other equity
interests having ordinary voting power for the election of directors or other
governing body of such Subsidiary, is owned by such Person or another Wholly-
Owned Subsidiary of such Person.
"Withdrawal Notice" has the meaning specified in Section 13.5.
29
SECTION 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or such Subsidiary Guarantor, as the case may be, shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act or under this Indenture. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by officers of the Company or a Subsidiary Guarantor, or an Opinion of Counsel,
if to be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he 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 complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or
30
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by one or more
agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 9.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section 1.4.
(b) The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may be proved in any
manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 10.1)
prior to such first solicitation or vote, as the case may be. With regard to
any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer
31
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 1.5. Notices, Etc. to Trustee, Company and Subsidiary Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(i) the Trustee by any Holder, by the Company, or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trustee, 210 Baronne Street, New Orleans,
Louisiana 70112; or
(ii) the Company or any Subsidiary Guarantor, by the Trustee or
by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company or the Subsidiary Guarantor, as the case
may be, addressed to the attention of its Secretary at the address of its
principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company or the Subsidiary Guarantor, as the case may be.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
32
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company, the
Subsidiary Guarantors and the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Maturity Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or Maturity Date, or
33
at the Stated Maturity; provided, that no interest shall accrue for the period
from and after such Maturity Date or Stated Maturity, as the case may be.
SECTION 1.14. Immunity of Incorporators, Stockholders, Officers and Directors.
No recourse shall be had for the payment of the principal of or
interest on any Security or for any claim based thereon, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company, or any
Subsidiary Guarantor, or of any successor corporation, either directly or
indirectly through the Company, or any Subsidiary Guarantor, or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment of penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the Securities are solely
corporate obligations, and that no personal liability whatever shall attach to,
or is incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company, or any Subsidiary Guarantor, or of any
successor corporation, either directly or indirectly through the Company, or any
Subsidiary Guarantor, or any successor corporation, because of the incurring of
the indebtedness hereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities, or to be implied herefrom or therefrom; and that all such
personal liability is hereby expressly released and waived as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
(a) The 1998 Initial Notes are being offered and sold by the Company
pursuant to a Purchase Agreement, dated May 19, 1998, among the Company, Chase
Securities Inc., BT Alex. Brown Incorporated and PaineWebber Incorporated (the
"Purchase Agreement").
Initial Notes of any series of Securities offered and sold to
qualified institutional buyers (as defined in Rule 144A under the Securities Act
("Rule 144A")) in the United States of America (a "Rule 144A Note") will be
issued in the form of a permanent global Security substantially in the form of
Exhibit A, which is hereby incorporated by reference and expressly made a part
of this Indenture (a "Rule 144A Global Note"), deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. A Rule 144A Global Note may be represented
by more than one certificate, if so required by the Depositary's rules regarding
the maximum principal amount to be represented by a
34
single certificate. The aggregate principal amount of a Rule 144A Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial Notes of any series of Securities offered and sold outside the
United States of America (a "Regulation S Note") in reliance on Regulation S
under the Securities Act ("Regulation S") will initially be issued in the form
of a temporary global security substantially in the form of Exhibit A hereto (a
"Regulation S Temporary Global Note"), deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. Beneficial interests in the Regulation S
Temporary Global Note of any series shall be exchanged for beneficial interests
in a corresponding Security of the same series in permanent global form,
substantially in the form of Exhibit A, with the global securities legend and
the restricted securities legend (a "Regulation S Permanent Global Note" and,
together with the Regulation S Temporary Global Note, a "Regulation S Global
Note") within a reasonable time after the expiration of the Restricted Period.
A Regulation S Global Note may be represented by more than one certificate, if
so required by the Depositary's rules regarding the maximum principal amount to
be represented by a single certificate. The aggregate principal amount of a
Regulation S Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
Initial Notes of any series of notes resold to institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) in the United States of America (an "Institutional Accredited
Investor Note") will be issued in the form of a permanent global Security
substantially in the form of Exhibit A (an "Institutional Accredited Investor
Global Note") deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. An Institutional Accredited Investor Global Note may be represented
by more than one certificate, if so required by the Depositary's rules regarding
the maximum principal amount to be represented by a single certificate. The
aggregate principal amount of an Institutional Accredited Investor Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Exchange Notes exchanged for interests in the a 144A Note, a
Regulation S Note and an Institutional Accredited Investor Note will be issued
in the form of a permanent global Security substantially in the form set forth
in Exhibit B hereto, which is hereby incorporated by reference and expressly
made a part of this Indenture, deposited with the Trustee as hereinafter
provided, with the applicable legend set forth in Section 2.1(c) hereof (an
"Exchange Global Note"). An Exchange Global Note may be represented by more
than one certificate, if so required by the Depositary's rules regarding the
maximum principal amount to be represented by a single certificate.
35
The Rule 144A Global Note, the Regulation S Global Note, the Exchange
Global Note and the Institutional Accredited Investor Global Note of any series
are sometimes collectively herein referred to as the "Global Securities."
The Private Exchange Securities of any series of notes shall be in the
form of Exhibit A. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage, in addition to those set forth on
Exhibit A and Exhibit B. The Company and the Trustee shall approve the forms of
the Securities and any notation, endorsement or legend on them. Each Security
shall be dated the date of its authentication. The terms of the Securities set
forth in Exhibit A and Exhibit B are part of the terms of this Indenture and, to
the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to be bound by such terms.
(b) Denominations. The Securities shall be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and any
integral multiple thereof.
(c) Restrictive Legends. Unless and until (i) an Initial Note is
sold under an effective registration statement or (ii) an Initial Note is
exchanged for an Exchange Note in connection with an effective registration
statement, in each case pursuant to the Registration Rights Agreement or similar
agreement, (A) such Rule 144A Global Note and Institutional Accredited Investor
Global Note shall bear the following legend (the "Private Placement Legend") on
the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
36
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION
INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SECURITIES, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E)
OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER
FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED ________, ____. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE."; and
(B) such Regulation S Global Note shall bear the following legend (the
"Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S.
PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.
37
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"), (2)
BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR
DELIVER TO THE TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE
FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED ________, ____. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE SECURITIES
ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S)
AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED HEREIN,
THE TERMS "OFFSHORE
38
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.".
The Global Securities of any series, whether or not an Initial Note,
shall bear the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall apply only
to Global Securities deposited with the Trustee, as custodian for the
Depositary.
(ii) Each Global Security initially shall (x) be registered in the
name of the Depositary for such Global Security or the nominee of such
Depositary, (y) be delivered to the Trustee as custodian for such Depositary and
(z) bear legends as set forth in Section 2.1(c).
(iii) Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as the
custodian of the Depositary or under such Global Security, and the Depositary
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent
39
Members, the operation of customary practices of the Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global
Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to subsection (e) of this Section to
beneficial owners who are required to hold Certificated Securities (as defined
below), the Trustee shall reflect on its books and records the date and a
decrease in the principal amount of such Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Certificated Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to subsection (e) of this Section, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Security, an equal aggregate principal amount
of Certificated Securities of authorized denominations.
(e) Certificated Securities. Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
certificated Securities ("Certificated Securities"). If required to do so
pursuant to any applicable law or regulation, beneficial owners of Securities of
any series may obtain Certificated Securities representing such series in
exchange for their beneficial interests in a Global Security upon written
request in accordance with the Depositary's and the Security Registrar's
procedures. In addition, Certificated Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security if (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or the Depositary
ceases to be a clearing agency registered under the Exchange Act, at a time when
the Depositary is required to be so registered in order to act as Depositary,
and in each case a successor depositary is not appointed by the Company within
90 days of such notice or (ii) the Company executes and delivers to the Trustee
and the Security Registrar an Officers' Certificate stating that such Global
Security shall be so exchangeable or (iii) an Event of Default has occurred and
is continuing and the Security Registrar has received a request from the
Depositary. Any Certificated Security delivered in exchange for an interest in
a Global Security pursuant to Section 2.1(d)(iv) and (v) shall, except as
otherwise provided by paragraph (c) of Section 3.2, bear the applicable legend
regarding transfer restrictions applicable to the Certificated Security set
forth in Section 2.1(c).
(f) Proxies. The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
40
ARTICLE III
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series; Title and Terms of the 1998
Securities.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series, including the series of Securities
established pursuant to Section 3.1(c). Except with respect to the series of
Securities established pursuant to Section 3.1(c), there shall be established in
or pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, and the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interests shall be payable
and the Regular Record Date for the interest payable on any Interest
Payment Date;
(5) the price or prices at which and the period or periods within and
the terms and conditions upon which Securities of the series may be
redeemed, as a whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(6) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series at the option of a Holder thereof and the
price or prices at which the Securities of the series are payable, and the
period or periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, as a whole
or in part, pursuant to such obligation;
41
(7) any addition to, or any modification of, any Event of Default or
covenant of the Company specified herein with respect to the Securities of
such series; and
(8) any other terms of the series (which terms shall not be
inconsistentwith the provisions of this Indenture.
(b) If any of the terms of the Securities of a series are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
(c) There is hereby established a series of Securities which shall be
known and designated as the "9 1/2% First Mortgage Notes due 2008". Their
Stated Maturity shall be May 15, 2008, and they shall bear interest at the rate
of 9 1/2% per annum, from May 22, 1998 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable semi-annually on May 15 and November 15 in each year, commencing
November 15, 1998, until the principal thereof is paid or made available for
payment.
(d) All Securities of any one series shall be substantially identical
except as to the date from which interest, if any, shall accrue, which term may
be determined by the Company from time to time as to Securities of a series if,
in the case of any series established pursuant to Section 3.1(a), so provided in
or established pursuant to the authority granted in a Board Resolution or in any
such indenture supplemental hereto. All Securities of any one series need not
be issued at the same time, and unless otherwise provided, a series may be
reopened for issuance of additional Securities of such series. In connection
with the authentication and delivery of Securities of any series after the date
of this Indenture (other than Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series), each Subsidiary Guarantor shall reaffirm in writing its
Subsidiary Guarantee.
(e) The principal of and interest on the Securities of any series
shall be payable at the office or agency of the Paying Agent in The City of New
Orleans, maintained for such purpose; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register; provided, further, that a Holder of $10,000,000 in aggregate principal
amount of Securities of any series shall be entitled to receive payments of
interest by wire transfer in immediately available funds (but only if
appropriate payment instructions have been received in writing by the Paying
Agent not less than 15 calendar days prior to the applicable Interest Payment
Date).
Notwithstanding any other provision of this Section 3.1, if a Security
is in the form of a Global Security, immediately available funds for the payment
of the
42
principal of and interest on the Security due on any Interest Payment Date or
Maturity Date, as the case may be, will be made available to the Paying Agent to
permit the Paying Agent to pay such funds to the Depositary on such respective
dates. The Depositary will allocate and pay such funds to the owners of
beneficial interests in the Security in accordance with its existing operating
procedures.
The Securities shall be subject to redemption and repurchase by the
Company as provided herein.
SECTION 3.2. Transfer and Exchange.
(a) The following provisions shall apply with respect to any proposed
transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior
to the date which is two years after the later of the date of original issue and
the last date on which the Company or any affiliate of the Company was the owner
of such Notes (or any predecessor thereto) (the "Resale Restriction Termination
Date"):
(i) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a Qualified
Institutional Buyer as defined under Rule 144A (a "QIB") shall be made upon
the representation of the transferee that it is purchasing the Security for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to an
institutional accredited investor shall be made upon receipt by the Trustee
or its agent of a certificate substantially in the form set forth in
paragraph (g) of this Section 3.2 from the proposed transferee and, if
requested by the Company or the Trustee, the delivery of an Opinion of
Counsel, certification and/or other information satisfactory to each of
them; and
(iii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in paragraph (h) of this
Section 3.2 from the proposed transferee and, if requested by the Company
or the Trustee, the delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them.
43
(b) The following provisions shall apply with respect to any proposed
transfer of a Regulation S Note prior to the expiration of the Restricted
Period:
(i) a transfer of a Regulation S Note or a beneficial interest
therein to a QIB shall be made upon the representation of the transferee
that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account is a "qualified institutional buyer" within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest
therein to an institutional accredited investor shall be made upon receipt
by the Trustee or its agent of a certificate substantially in the form set
forth in paragraph (g) of this Section 3.2 from the proposed transferee
and, if requested by the Company or the Trustee, the delivery of an Opinion
of Counsel, certification and/or other information satisfactory to each of
them; and
(iii) a transfer of a Regulation S Note or a beneficial
interest therein to a Non-U.S. Person shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth
in paragraph (h) of this Section 3.2 from the proposed transferee and, if
requested by the Company or the Trustee, receipt by the Trustee or its
agent of an Opinion of Counsel, certification and/or other information
satisfactory to each of them.
After the expiration of the Restricted Period, interests in the
Regulation S Note may be transferred without requiring certification set forth
in paragraph (h) of this Section 3.2 or any additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Security Registrar shall deliver Securities that do not bear a Restricted
Securities Legend. Upon the transfer, exchange or replacement of Securities
bearing the Restricted Securities Legend, the Security Registrar shall deliver
only Securities that bear such Restricted Securities Legend unless there is
delivered to the Security Registrar an Opinion of Counsel to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(d) The Security Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 2.1 or this
Section 3.2. The Company shall have the right to inspect and make copies of all
such letters, notices or
44
other written communications at any reasonable time upon the giving of
reasonable written notice to the Security Registrar.
(e) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this Article
III, execute and the Trustee shall authenticate Certificated Securities and
Global Securities at the Security Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charges payable upon exchange or
transfer pursuant to Section 11.6).
(iii) The Security Registrar or co-registrar shall not be
required to register the transfer of or exchange of any Security for a
period beginning (1) 15 Business Days before the mailing of a notice of an
offer to repurchase Securities of the same series as such Security and
ending at the close of business on the day of such mailing or (2) 15
Business Days before an interest payment date for such series of Securities
and ending on such interest payment date.
(iv) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in, the Depositary or other Person with respect to
the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice or
the payment of any amount or delivery of any Securities (or other security or
property) under or with respect to such Securities. All notices and
communications to be given to the Holders of any series of Securities and all
payments to be made to Holders in respect of a series of Securities shall be
given or made only to or upon the order of the registered Holders of such series
of Securities (which shall be the Depositary or its nominee in the case of a
Global Security). The rights of beneficial owners in any Global Security shall
be exercised only through the Depositary subject to the applicable rules and
procedures of the Depositary. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depositary with respect to its
members, participants and any beneficial owners.
45
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
(g) Form of Certificate to be Delivered in Connection with Transfers
to Institutional Accredited Investors.
[Date]
Bayou Steel Corporation
c/o First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attention: Trust Department
Dear Sirs:
This certificate is delivered to request a transfer of $
principal amount of the __% First Mortgage Notes due 200__ (the "Notes") of
Bayou Steel Corporation (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience
46
in financial and business matters as to be capable of evaluating the merits and
risk of our investment in the Notes and we invest in or purchase securities
similar to the Notes in the normal course of our business. We and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two years after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Notes (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement which has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer (a "QIB") under Rule 144A of the Securities Act ("Rule
144A") that purchases for its own account or for the account of a QIB and to
whom notice is given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor," in each case in a
minimum principal amount of Notes of $250,000 or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" (within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and that it is acquiring
such Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the Resale
Termination Date of the Notes pursuant to clauses (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:_____________________
BY______________________________
47
(h) Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S.
[Date]
Bayou Steel Corporation
c/o First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attention: Trust Department
Re: Bayou Steel Corporation
__% First Mortgage Notes due 200__ (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States or (ii) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
48
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. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________ ______________________________
Authorized Signature Signature Medallion Guaranteed
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities of any series shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its
President or its Chief Financial Officer and attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and make available for delivery:
(1) 1998 Initial Notes, (2) one or more other series of Initial Notes as the
Company may elect to issue from time to time pursuant to Section 3.1(a) and (3)
Exchange Notes for issue only in a Registered Exchange Offer, and only in
exchange for Initial Notes of such series of an equal principal amount, in each
case upon a Company Order. Such Company Order shall specify the amount of the
Securities to be authenticated and the date on which the original issue of such
series of Securities is to be authenticated and whether the Securities are to be
Initial Notes or Exchange Notes.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence,
49
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series of
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities for such series which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities of the same series upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
6.2, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 3.5. Registration.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 6.2 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed Security Registrar for the purpose of registering Securities
and transfers of Securities as herein provided.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of
50
them harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing
51
of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of such
series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
52
SECTION 3.9. Cancellation.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. Notwithstanding any other provision
of this Indenture to the contrary, in the case of a series all the Securities of
which are not to be originally issued at one time, a Security of such series
shall not be deemed to have been Outstanding at any time hereunder if and to the
extent that, subsequent to the authentication and delivery thereof, such
Security is delivered to the Trustee for cancellation by the Company or any
agent thereof upon the failure of the original purchaser thereof to make payment
therefor against delivery thereof, and any Security so delivered to the Trustee
shall be promptly cancelled by it. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be destroyed and certification of their destruction
delivered to the Company unless by a Company Order the Company shall direct that
cancelled Securities be returned to it.
SECTION 3.10. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Any Series.
(a) The Company shall be deemed to have satisfied and discharged the
entire indebtedness on all the Securities of any particular series (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and, so long as no Event of Default shall be
continuing, the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) all Securities of such series theretofore authenticated and
issued (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6 and (ii) Securities for whose payment money
has theretofore been
53
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Trustee or discharged from such trust, as
provided in Section 6.26) have been delivered to the Trustee for
cancellation; or
(B) all such Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable; or
(ii) will become due and payable within one year,
and the Company, in the case of (B) (i) or (ii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust an
amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
entire Indebtedness on all Securities of such series have been complied
with.
(b) Upon the satisfaction of the conditions set forth in this Section
4.1 with respect to all the Securities of any series, the terms and conditions
of such series, including the terms and conditions with respect thereto set
forth in this Indenture, shall no longer be binding upon, or applicable to, the
Company or the Subsidiary Guarantors, and the Holders of the Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a); provided, however, that in no event
shall the Company be discharged from (i) any obligations under Sections 9.7 or
9.10 or (ii) any obligations under Sections 3.5 and 3.6 (except that Securities
of such series issued upon registration of transfer or exchange or in lieu of
mutilated, lost, destroyed or stolen Securities shall not be obligations of the
Company) and Sections 10.1 and 6.2.
54
SECTION 4.2. Application of Monies for Satisfaction and Discharge.
Subject to the provisions of the last paragraph of Section 6.26, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
SECTION 4.3. Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section 4.1 as
to the satisfaction and discharge of each series of Securities issued hereunder,
and if the Company has paid or caused to be paid all other sums payable under
this Indenture, this Indenture shall cease to be of any further effect (except
as otherwise provided herein). Upon Company Request and receipt of an Opinion
of Counsel and an Officers' Certificate, the Trustee (at the expense of the
Company) shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture and the cancellation of all Security Documents.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Section 9.7 and the obligations of the Trustee
under Sections 4.2, 6.26 and 9.14 shall survive.
ARTICLE V
REDEMPTION
SECTION 5.1. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1(a) for Securities of any
series) in accordance with this Article.
SECTION 5.2. Notices to Trustee.
If the Company elects to redeem all or any part of the Securities of
any series, it shall notify the Trustee and the Paying Agent in writing of the
redemption date and the principal amount of Securities of such series to be
redeemed.
The Company shall give each notice provided for in this Section 5.2 at
least 75 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing), together with an Officers' Certificate
stating that such
55
redemption shall comply with the conditions contained herein and in the
Securities being redeemed.
SECTION 5.3. Selection of Securities To Be Redeemed.
If less than all of the Securities of any series are to be redeemed,
the Trustee shall select the Securities of such series to be redeemed in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities being redeemed are listed or, if the Securities
are not listed on a national securities exchange, on a pro rata basis, by lot or
by such method as the Trustee shall deem fair and appropriate; provided, that no
Securities of $1,000 or less shall be redeemed in part.
The Trustee shall make the selection from the Outstanding Securities
of the series of Securities being redeemed not previously called for redemption.
The Trustee shall promptly notify the Company in writing of such Securities and,
in the case of Securities selected for partial redemption, the principal amount
to be redeemed. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. The Securities and portions of them the
Trustee selects shall be in amounts of $1,000 or integral multiples of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.
SECTION 5.4. Notice of Redemption.
At least 30 days but not more than 60 days prior to a redemption date
(but, in the case of any redemption of 1998 Securities pursuant to Section
5.8(c), in no event more than 90 days after the occurrence of the applicable
Change of Control), the Company shall mail or cause the mailing of a notice of
redemption by first-class mail to each Holder of Securities to be redeemed at
its registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) that the Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price and accrued interest, if
any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and
56
after the redemption date and the only remaining right of the Holders is to
receive payment of the redemption price upon surrender to the Trustee or
the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of such
Security to be redeemed and that, on and after the redemption date, upon
surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof shall be issued without
charge to the Holder; and
(7) if less than all of the Securities of any series are to be
redeemed, the identification of the particular Securities of such series
(or portion thereof) to be redeemed as well as the aggregate principal
amount of such series of Securities to be redeemed and the aggregate
principal amount of Securities of such series estimated to be outstanding
after the redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 5.5. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price and
shall cease to bear interest from and after the redemption date (unless the
Company shall default in the payment of the redemption price or accrued
interest). Upon surrender to the Paying Agent, such Securities shall be paid at
the redemption price, plus accrued interest to the redemption date; provided,
that if the redemption date is also an Interest Payment Date, then the interest
payable on such date shall be paid to the Holder of record on the next preceding
Regular Record Date relating to such Interest Payment Date.
SECTION 5.6. Deposit of Redemption Price.
At least one Business Day prior to any redemption date, the Company
shall deposit with the Paying Agent in immediately available funds money
sufficient to pay the redemption price of and accrued interest on all Securities
or portions thereof to be redeemed on the redemption date.
If any Security surrendered for redemption in the manner provided in
the Securities shall not be so paid on the redemption date due to the failure of
the Company to deposit sufficient funds with the Paying Agent, interest shall
continue to accrue from the redemption date until such payment is made on the
unpaid principal and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the date and in the manner provided in the
Securities which were to be redeemed.
57
SECTION 5.7. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder a new Security of
the same series equal in principal amount to the unredeemed portion of the
Security surrendered.
SECTION 5.8. Optional Redemption of the 1998 Securities.
(a) Except as otherwise described below, the Company may not redeem
the 1998 Securities prior to May 15, 2003. On and after May 15, 2003, the
Company may, at its option, redeem the 1998 Securities, in whole or in part,
from time to time, at the redemption prices set forth below (expressed as
percentage of the principal amount thereof), in each case together with accrued
and unpaid interest, if any, to the date of redemption, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003 104.750%
2004 103.167%
2005 101.583%
2006 and thereafter 100.000%
provided, that if the date fixed for redemption is May 15 or November 15, then
the interest payable on such date shall be paid to the Holder of record on the
next preceding May 1 or November 1.
(b) Prior to May 15, 2001, the Company may, at its option, from time
to time, redeem up to 35% of the original aggregate principal amount of the 1998
Securities at a redemption price equal to 109.500% of the principal amount
thereof, together with accrued and unpaid interest, if any, to the date of
redemption with all or a portion of the net proceeds of public sales of Common
Stock; provided, that at least 65% of the original aggregate principal amount of
the 1998 Securities remains outstanding immediately after the occurrence of such
redemption; and provided, further, that such redemption shall occur within 60
days of the date of the closing of the related sale of Common Stock.
(c) At any time prior to May 15, 2003, the Company may, at its
option, redeem the 1998 Securities, in whole but not in part, upon the
occurrence of a Change of Control, at a redemption price equal to 100% of the
principal amount thereof, together with the Applicable Premium as of, and
accrued and unpaid interest, if any, to, the date of redemption.
58
ARTICLE VI
COVENANTS
SECTION 6.1. Payment of Securities.
The Company shall pay, or cause to be paid, the principal of and
interest on each series of Securities on the dates and in the manner provided in
such series of Securities and this Indenture. If any Securities are not
represented by one or more global Securities, an installment of principal or
interest with respect to such Securities shall be considered paid on the date
due if the Trustee or Paying Agent (other than the Company or any Subsidiary)
holds on that date money in immediately available funds designated for and
sufficient to pay such installment. The Company agrees with the Trustee to
deposit such funds with the Trustee or Paying Agent prior to the close of
business on the Business Day immediately preceding the date such payment is due.
Unless otherwise provided pursuant to Section 3.1(a), the Company
shall pay interest on overdue principal and (to the extent permitted by law) on
overdue installments of interest with respect to any Security at the rate at
which the Securities of the same series bear interest.
SECTION 6.2. Maintenance of Office or Agency.
The Company shall maintain in the City of New Orleans, Louisiana an
office or agency where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 1.5 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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
City of New Orleans, Louisiana for such purposes. The Company shall give prompt
written notice to the Trustee of such designation or rescission and of any
change in the location of any such other office or agency.
59
The Company hereby initially designates the Corporate Trust Office of
the Trustee located at 210 Baronne Street, New Orleans, Louisiana 70112 as such
offices of the Company in accordance with Sections 3.5 and 9.9 hereof.
SECTION 6.3. Corporate Existence.
Subject to Article VII, the Company shall do or cause to be done, at
its own cost and expense, all things necessary to, and shall cause each
Subsidiary to, preserve and keep in full force and effect the corporate
existence and 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
existence of any Subsidiary, if in the judgment of the Board of Directors of the
Company, (a) such preservation or existence is not desirable in the conduct of
business of the Company or such Subsidiary and (b) the loss of such right,
license or franchise or the dissolution of such Subsidiary is not adverse in any
material respect to the Holders.
SECTION 6.4. Payment of Taxes and Other Claims; Tax Consolidation.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company or any Subsidiary, and (b) all lawful claims
for labor, materials and supplies that, if unpaid, might by law become a Lien
upon the property of the Company or any Subsidiary; provided, however, that,
subject to the terms of the applicable Security Documents, the Company shall not
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which adequate
reserves (in the good faith judgment of the Board of Directors of the Company)
have been made.
SECTION 6.5. Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 45 days after
the end of each of the respective first three quarters of the Company's fiscal
year, and within 90 days after the end of its respective fiscal year, Officers'
Certificates of the Company stating (i) that a review of the activities of the
Company during the preceding fiscal quarter or year, as the case may be, 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 Indenture, and further stating, as to each such
Responsible Officer signing such certificate, (ii) that, to the best knowledge
of such Responsible Officer, the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events
60
of Default of which such Responsible Officer may have knowledge, their status
and what action the Company is taking or proposes to take with respect thereto)
and (iii) that to the best of his 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 Securities are prohibited (or, if such event has
occurred, describing the event and what action the Company is taking or proposes
to take with respect thereto).
(b) So long as (and to the extent) not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
annual financial statements delivered pursuant to Section 6.6 shall be
accompanied by a written statement of the Company's independent public
accountants that in making the examination necessary for certification of such
annual financial statements nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of this Indenture
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 that would not be disclosed in the course of an audit examination
conducted in accordance with generally accepted auditing standards.
(c) The Company shall, so long as any of the Securities of any series
are outstanding, deliver to the Trustee, forthwith upon any officer becoming
aware of any Default or Event of Default, an Officers' Certificate specifying
such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.6. SEC Reports.
(a) In accordance with the provisions of Section 314(a) of the Trust
Indenture Act, at any time that the Company is required to file periodic reports
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, the
Company shall file with the Trustee, within 15 days after it files them with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the Company is required
to file with the Commission. The Company also shall comply with the other
provisions of Section 314(a) of the Trust Indenture Act. In addition, at any
time that the Company has a class of equity securities registered under the
Exchange Act, the Company shall cause its annual report to stockholders and any
quarterly or other financial reports furnished by it to stockholders generally
to be filed with the Trustee and mailed, no later than the date such materials
are mailed or made available to the Company's stockholders, to the Holders at
their addresses as set forth in the Security Register.
(b) At any time that the Company does not have a class of securities
registered under the Exchange Act, the Company shall furnish to the Trustee
(who is hereby authorized and directed to furnish a copy thereof to any person
requesting the
61
same in writing) and shall mail (or cause to be mailed by the Trustee at the
Company's expense) to each of the Holders at their addresses as set forth in the
Security Register maintained by the Security Registrar within 60 days after the
close of each of the first three quarters of each fiscal year and within 105
days after the close of each fiscal year consolidated balance sheets of the
Company as of the end of each such quarter or fiscal year, as the case may be,
and consolidated statements of income and changes in financial position of the
Company for the period commencing at the end of the Company's previous fiscal
year and ending with the end of such quarter or fiscal year, as the case may be,
all such financial statements setting forth in comparative form the
corresponding figures for the corresponding period of the preceding fiscal year,
all in reasonable detail and duly certified (subject to year-end adjustments) by
a Responsible Officer of the Company as having been prepared in accordance with
GAAP consistently applied, and, in the case of annual consolidated financial
statements, certified by independent public accountants of recognized standing
and a discussion and analysis of the results of operations and financial
condition of the Company and its subsidiaries for the periods presented, which
discussion and analysis shall be prepared by the management of the Company in a
manner responsive to the requirements of Item 303 (or any successor item or
section) of Regulation S-K. All financial statements shall be prepared in
accordance with GAAP consistently applied, except for changes with which the
Company's independent public accountants concur and except that quarterly
statements may be subject to year-end adjustments.
SECTION 6.7. Waiver of Stay, Extension or Usury Laws.
The Company 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 or extension law or any usury law
or other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Securities of any series as
contemplated therein or herein, wherever enacted, now or at any time hereafter
in force, or that may affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) the Company hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted to the Trustee
but shall suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 6.8. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(a) Subject to the applicable provisions of the Security Documents,
the Company shall, and shall cause each Subsidiary to, at all times cause all
properties used or useful in the conduct of its business to be maintained and
kept in good working order and condition, ordinary wear and tear excepted, and
shall cause to be made all necessary (in the good faith opinion of management)
repairs, renewals, replacements, additions, betterments and improvements
thereto.
62
(b) Except as provided in the Mortgage with respect to the
Collateral, the Company shall and shall cause each Subsidiary to maintain
insurance with insurance companies or associations with a rating of "A-" or
better, as established by Best's Rating Guide (or an equivalent rating with such
other publication of a similar nature as shall be in current use), subject to
the provisions of the applicable Security Documents, in such amounts and
covering such risks as are usually and customarily carried with respect to
similar facilities according to their respective locations.
(c) The Company shall and shall cause each Subsidiary to keep proper
books of record and account in which full and correct entries shall be made of
all financial transactions and the assets and business of the Company and each
Subsidiary, in accordance with GAAP consistently applied to the Company and its
Subsidiaries taken as a whole.
(d) The Company shall and shall cause each Recourse Subsidiary to
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially and adversely
affect the business, prospects, earnings, properties, assets or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole.
SECTION 6.9. Limitations on Indebtedness.
(a) So long as any 1998 Securities shall remain Outstanding, the
Company shall not, and shall not permit any of its Recourse Subsidiaries,
directly or indirectly, to incur, create, assume, guarantee, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
the payment of (each event, an "incurrence") any Indebtedness unless (a) the pro
forma EBITDA Ratio of the Company and its Recourse Subsidiaries for the
Reference Period prior to the incurrence of such Indebtedness (taken as a whole
and calculated on the assumptions that such Indebtedness had been incurred and
the proceeds thereof had been applied on the first day of the Reference Period)
would have been greater than 2.00 to 1.00 and (b) no Default or Event of Default
shall have occurred and be continuing at the time of, or after giving effect to,
the incurrence of such Indebtedness.
(b) The limitation set forth in paragraph (a) shall not apply to:
(i) Indebtedness evidenced by the issuance of the 1998 Securities
and the obligations, which relate to such issuance, of the Company and its
Subsidiaries under the Indenture in an aggregate amount not to exceed
$110,000,000;
(ii) Indebtedness of the Company or any Recourse Subsidiary
issued to the Company or any Wholly-Owned Recourse Subsidiary; provided,
that (a) any such Indebtedness is unsecured and is subordinated to the
Securities and (b) any subsequent issuance or transfer of any Capital Stock
or any other event which
63
results in any such Wholly-Owned Recourse Subsidiary ceasing to be a
Wholly-Owned Recourse Subsidiary or any transfer of such Indebtedness by
any Wholly-Owned Recourse Subsidiary to someone not a Wholly-Owned Recourse
Subsidiary will, in each case, be deemed an incurrence of Indebtedness
under the Indenture;
(iii) Indebtedness of the Company or any Recourse Subsidiary
which is existing immediately following the issuance of the 1998 Initial
Notes and the application of the proceeds therefrom;
(iv) Indebtedness incurred under the New Credit Facility, but not
to exceed the greater of $50,000,000 or the sum of (a) 85% of the value of
the Company's consolidated qualifying accounts receivable and (b) 60% of
the value of the Company's consolidated qualifying inventory (with each
such amount to be determined in accordance with the terms of the New Credit
Facility), less the amount of Indebtedness incurred pursuant to clause
(viii) below;
(v) Indebtedness incurred with respect to Interest Rate
Agreements covering floating rate Indebtedness of the Company that is
permitted under this covenant to the extent the notional principal amount
of such Interest Rate Agreements does not exceed the principal amount of
the Indebtedness to which such Interest Rate Agreements relate;
(vi) Indebtedness incurred with respect to the deferred purchase
price of machinery and equipment related to the business of the Company or
its Recourse Subsidiaries at the time of purchase and other purchase money
obligations (including Capitalized Lease Obligations) not to exceed, in the
aggregate, $5,000,000; provided, that the maturity of any such obligation
does not exceed the anticipated useful life of the asset being financed;
(vii) Indebtedness arising from the honoring of a check, draft or
similar instrument drawn against insufficient funds; provided, that such
indebtedness is extinguished within two Business Days of its incurrence;
(viii) the incurrence by an Asset Backed Entity of Indebtedness
in a Qualified Asset Backed Transaction that is nonrecourse to the Company
or any Subsidiary of the Company (except for Standard Securitization
Undertakings) in an aggregate principal amount outstanding at any one time
not to exceed the amount permitted under clause (iv) above;
(ix) Indebtedness of a Recourse Subsidiary outstanding on the
date on which such Recourse Subsidiary was acquired by the Company;
provided, however, that at the time such Recourse Subsidiary is acquired by
the Company, the Company would have been able to incur $1.00 of additional
Indebtedness
64
pursuant to the immediately preceding paragraph after giving effect to the
incurrence of such Indebtedness pursuant to this clause (ix);
(x) Indebtedness (A) in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Company or any of
its Recourse Subsidiaries to their customers in the ordinary course of
their business, (B) in respect of performance bonds or similar obligations
of the Company or any of its Recourse Subsidiaries for or in connection
with pledges, deposits or payments made or given in the ordinary course of
business in connection with or to secure statutory, regulatory or similar
obligations, including obligations under health, safety or environmental
obligations and (C) arising from Guarantees to suppliers, lessors,
licensees, contractors, franchisees or customers of obligations (other than
Indebtedness) incurred in the ordinary course of business;
(xi) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or
from Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its Recourse Subsidiaries
pursuant to such agreements, in each case incurred in connection with the
disposition of any business assets or Recourse Subsidiary of the Company
(other than Guarantees of Indebtedness or other obligations incurred by any
person acquiring all or any portion of such business assets or Recourse
Subsidiary of the Company for the purpose of financing such acquisition) in
a principal amount not to exceed the gross proceeds actually received by
the Company or any of its Recourse Subsidiaries in connection with such
disposition;
(xii) Indebtedness incurred in connection with Private Activity
Bonds, as such term is defined under the Internal Revenue Code, in an
aggregate principal amount not to exceed $5,000,000;
(xiii) other Indebtedness of the Company and its Recourse
Subsidiaries not to exceed, in the aggregate, $15,000,000; and
(xiv) any renewal, extension or refinancing (and subsequent
renewals, extensions or refinancings) of any Indebtedness of the Company
and its Recourse Subsidiaries permitted under the preceding paragraph or
under clauses (i), (iii), (vi), (ix), (x) or (xii) above; provided,
however, that in no event may Indebtedness of the Company be renewed,
extended or refinanced by means of Indebtedness of any Recourse Subsidiary
of the Company pursuant to this clause (xiv).
(c) In addition to the limitation imposed pursuant to Section 6.9(a)
and so long as any 1998 Securities remain Outstanding, once Securities in an
aggregate principal amount of $140,000,000 have been issued under this Indenture
(not including Securities authenticated and delivered upon registration or
transfer of, and in exchange for, or in lieu of, other Securities), any further
issuance of Securities hereunder shall be
65
subject to the further requirements that (i) the proceeds of such issuance shall
be used to finance the construction of or improvements to the Mortgaged
Facility, (ii) Standard & Poors Rating Service and Moody's Investor Service
shall have confirmed their ratings of the 1998 Securities assuming such further
issuance Securities as contemplated for Mortgaged Facility improvements at
ratings not below the ratings assigned to such Securities immediately prior to
the public announcement or disclosure to such rating agencies of the Company's
plan or intention for such construction, (iii) the Mortgaged Facility
improvements to be constructed must, as conclusively established by a Board
Resolution, be intended to add supplemental production, handling or performance
capacity to the then existing Mortgaged Facility (although a portion of the
intended construction may simply replace existing improvements and Fixtures and
Equipment to the extent ancillary to such construction), (iv) the Mortgage shall
be amended prior to or contemporaneously with such additional issuance to
increase the maximum amount secured by the Mortgage by an amount equal to the
aggregate principal amount of the additional issuance of Securities and (v)
prior to or substantially concurrently with such further issuance of Securities,
the Company shall provide an endorsement to the original mortgagee's policy
issued in connection with the issuance of the 1998 Securities (or an additional
mortgagee's title insurance policy in substantially the same form as the
mortgagee's title policy issued in connection with the issuance of the 1998
Securities) which provides mortgagee's title insurance for the benefit of all
Outstanding Securities with respect to the Mortgaged Facility improvements in
question in an amount equal to the lesser of (A) the aggregate principal amount
of the Securities issued or to be issued in such further issuance less the
estimated fair market value of the personal property to be included in the
Mortgaged Facility improvements to be financed by such Securities or (B) the
estimated fair market value of the real property (including all real property
improvements) to be included in the Mortgaged Facility improvements to be
financed by such further issuance of Securities, in each instance under clauses
(iv)(A) or (iv)(B), as conclusively established by a Board Resolution. Pending
application in accordance with clause (i) above of the proceeds from any such
further issuance of Securities, such proceeds will be retained by the Collateral
Agent in the Collateral Account subject to a first priority Lien, subject only
to Permitted Liens, in favor of the Collateral Agent for the benefit of the
Trustee and the Holders. Such proceeds shall be disbursed in accordance with
Section 13.6.
SECTION 6.10. Limitation on Liens.
So long as any 1998 Securities shall remain Outstanding, the Company
shall not, and shall not permit, cause or suffer any of its Recourse
Subsidiaries to, create, incur, assume or suffer to exist any Liens of any kind
upon any property or assets of the Company or any Recourse Subsidiary, whether
now owned or hereafter acquired, except for Permitted Liens.
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SECTION 6.11. Limitation on the Issuance of Preferred Stock by Recourse
Subsidiaries.
So long as any 1998 Securities shall remain Outstanding, the Company
shall not permit any of its Recourse Subsidiaries to issue, directly or
indirectly, any Preferred Stock, except:
(i) Preferred Stock issued to and held by the Company or a
Wholly-Owned Recourse Subsidiary, except that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any
Wholly-Owned Recourse Subsidiary ceasing to be a Wholly-Owned Recourse
Subsidiary or any transfer of such Preferred Stock by any Wholly-Owned
Recourse Subsidiary will, in each case, be deemed an issuance of Preferred
Stock under the Indenture;
(ii) Preferred Stock issued by a Person prior to the time (a)
such Person became a Recourse Subsidiary, (b) such Person merges with or
into a Recourse Subsidiary or (c) another Recourse Subsidiary merges with
or into such Person (in a transaction in which such Person becomes a
Recourse Subsidiary), in each case if such Preferred Stock was not incurred
in anticipation of such transaction; and
(iii) Preferred Stock (other than Disqualified Stock) which
is exchanged for Preferred Stock permitted to be outstanding pursuant to
clauses (i) and (ii) or which is used to refinance Indebtedness of a
Recourse Subsidiary (or any extension, renewal or refinancing thereof),
having a liquidation preference not to exceed the liquidation preference of
the Preferred Stock or the principal amount of the Indebtedness so
exchanged or refinanced; provided, that the Preferred Stock so issued in
exchange (i) shall have a stated maturity not earlier than the stated
maturity of the Indebtedness or Preferred Stock being refunded or
refinanced and (ii) shall have an Average Life equal to or greater than the
remaining Average Life of the Indebtedness or Preferred Stock being
refunded or refinanced.
SECTION 6.12. Intentionally Omitted.
SECTION 6.13. Limitations on Restricted Payments.
So long as any 1998 Securities shall remain Outstanding, neither the
Company nor any of its Recourse Subsidiaries shall, directly or indirectly,
declare, pay or set apart for payment, any Restricted Payment, if after giving
effect thereto: (i) a Default or an Event of Default shall have occurred and be
continuing; (ii) the Company would not be permitted to incur or become liable
with respect to at least $1.00 of additional Indebtedness as determined in
accordance with Section 6.9(a); or (iii) the aggregate amount of all Restricted
Payments made by the Company or any of its Recourse Subsidiaries (the amount
expended or distributed for such purposes, if other than in cash, to be valued
at its fair market value as determined in good faith by the
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Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution delivered to the Trustee) from and after the
date of the Indenture, through and including the date on which such Restricted
Payment is made, would exceed the sum of:
(i) the aggregate of 50% of the Company's Consolidated Net Income
accrued for the period (taken as one accounting period) (or if such
aggregate Consolidated Net Income shall be a deficit, minus 100% of the
amount of such deficit) commencing with the first full fiscal quarter after
the date of this Indenture to and including the fiscal quarter ended
immediately prior to the date of such calculation; and
(ii) the aggregate net cash proceeds or the fair market value of
marketable securities received by the Company after the date of this
Indenture from the issuance or sale (other than to a Recourse Subsidiary)
by the Company of its Capital Stock (excluding Disqualified Stock, but
including Capital Stock other than Disqualified Stock issued upon
conversion of, or exchange for, Disqualified Stock or securities other than
its Capital Stock), and upon the exercise of warrants and rights to
purchase such Capital Stock (the "Aggregate Cash Proceeds"). For purposes
of this clause (ii), the aggregate net cash proceeds received by the
Company (x) from the issuance of its Capital Stock upon the conversion of,
or exchange for, securities evidencing Indebtedness of the Company, shall
be calculated on the assumption that the gross proceeds from such issuance
are equal to the aggregate principal amount (or, if discounted
Indebtedness, the aggregate accreted amount) of Indebtedness evidenced by
such securities converted or exchanged and (y) upon the conversion or
exchange of other securities of the Company shall be equal to the aggregate
net proceeds of the original sale of the securities so converted or
exchanged if such proceeds of such original sale were not previously
included in any calculation for the purposes of this clause (ii), plus any
additional sums payable upon conversion or exchange.
Notwithstanding the foregoing, this provision shall not prevent (i)
the payment of any dividend within 60 days after the date of its declaration (if
the declaration of such dividend was permitted by the foregoing provision at the
time of such declaration); (ii) the repurchase, retirement or other acquisition
of any shares of the Company's Capital Stock, or any option, warrant or other
right to purchase shares of the Company's Capital Stock, or the repayment of any
subordinated Indebtedness of the Company solely in exchange for shares of, or
out of the proceeds of a substantially contemporaneous issuance of, Capital
Stock (other than Disqualified Stock); provided, however, that such purchase,
retirement or acquisition shall be excluded from subsequent calculations of
Restricted Payments; (iii) the contributions to or other Investments in a
Majority-Owned Non-Recourse Subsidiary in an aggregate amount not to exceed
$15,000,000; (iv) the defeasance, redemption or repurchase of subordinated
Indebtedness with the net cash proceeds from an incurrence of
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subordinated refinancing Indebtedness, provided, however, that such defeasance,
redemption or repurchase shall be excluded from subsequent calculations of
Restricted Payments; (v) distributions or payments of Receivables Fees,
provided, however, that such distributions or payments shall be excluded from
subsequent calculations of Restricted Payments; (vi) Permitted Investments,
provided, however, that Permitted Investments shall be excluded from subsequent
calculations of Restricted Payments; (vii) Permitted Payments, provided,
however, that Permitted Payments shall be excluded from subsequent calculations
of Restricted Payments; (viii) the contribution to or other Investment by the
Company in a Wholly-Owned Non-Recourse Subsidiary; provided, that the amount of
such contribution or Investment, together with the amount of all other
contributions or Investments pursuant to this clause (viii), shall not exceed
the amount of Aggregate Cash Proceeds; and, provided, further, that such
contribution or Investment is otherwise permitted under the first paragraph of
this Section 6.13 without giving effect to clause (ii) of such paragraph; (ix)
the contribution of the Released Property to a Non-Recourse Subsidiary in
exchange for an equity interest therein; provided, that at the time of such
contribution, such land is not used or necessary in the business of the Company
or any of its Recourse Subsidiaries as conclusively determined by a Board
Resolution; and (x) other Restricted Payments not to exceed $5,000,000 in the
aggregate.
SECTION 6.14. Limitations on Transactions with Stockholders and Affiliates.
(a) So long as any 1998 Securities shall remain Outstanding, the
Company shall not, and shall not permit any of its Recourse Subsidiaries to,
enter into or permit to exist any transaction (or series of related
transactions), including, without limitation, any loan, advance, guarantee or
capital contribution to, or for the benefit of, or any sale, purchase, lease,
exchange or other disposition of any property or the rendering of any service,
or any other direct or indirect payment, transfer or other disposition (a
"Transaction"), involving payments, with any holder of 5% or more of any class
of Capital Stock of the Company or with any Affiliate of such holder or with any
Affiliate of the Company (other than a Wholly-Owned Recourse Subsidiary of the
Company), on terms and conditions less favorable to the Company or such Recourse
Subsidiary, as the case may be, than would be available at such time in a
comparable Transaction in arm's length dealings with an unrelated Person as
determined by the Board of Directors of the Company or a Recourse Subsidiary,
such determination, in the case of any transaction (or series of related
transactions) involving aggregate consideration in excess of $75,000 to be
evidenced by a Board Resolution. Notwithstanding the foregoing, the Company
shall be entitled to grant gratuitous Permitted Easements in connection with the
construction and operation of Released Property Facilities and shall be entitled
to make capital contributions to Subsidiaries to the extent permitted pursuant
to Section 6.13.
(b) The provisions of paragraph (a) will not apply to:
(i) Restricted Payments otherwise permitted pursuant to the
Indenture;
69
(ii) transactions between the Company and one or more of its
Recourse Subsidiaries; provided, that such transactions are not otherwise
prohibited by the Indenture;
(iii) reasonable and customary fees and compensation
(including amounts and other benefits paid pursuant to employee benefit
plans) paid to, and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Subsidiary, as determined by
the Board of Directors of the Company or any Subsidiary;
(iv) payments for goods and services purchased in the ordinary
course of business on an arms-length basis;
(v) transactions effected as part of a Qualified Asset Backed
Transaction; and
(vi) the provision of, and the payment for, shared
administrative services to Affiliates in the ordinary course of business.
SECTION 6.15. Restrictions on Asset Sales.
(a) So long as any 1998 Securities shall remain Outstanding, the
Company shall not, and shall not permit any of its Recourse Subsidiaries to,
make any Asset Sale, unless (i) the Company or such Recourse 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 its Board of
Directors or, in the case of any Asset Sale involving aggregate consideration of
$125,000 or less, by the Chief Financial Officer of the Company or, in the case
of any Asset Sale involving aggregate consideration of $25,000 or less, by any
Vice President) of the Capital Stock or assets to be sold and (ii) the
consideration therefor received by the Company or such Recourse Subsidiary is in
the form of cash, Cash Equivalents or assets that are useful in the steel
business ("Steel Business Assets"); provided that (A) the amount of (x) any
liabilities (as shown on the Company's or such Recourse Subsidiary's most recent
balance sheet) of the Company or any Recourse Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the
Securities 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 Recourse Subsidiary from further liability and (y) any non-cash
consideration received by the Company or any such Recourse Subsidiary from such
transferee that is converted by the Company or such Recourse Subsidiary into
cash within 180 days of closing such Asset Sale, shall be deemed to be cash for
purposes of this provision (to the extent of the cash received) and (B) the
Company or such Recourse Subsidiary may accept consideration (including
consideration in the form of assumption of liabilities) from such
Asset Sale in other than cash, Cash Equivalents and Steel Business Assets if the
aggregate fair market value (as determined in good faith by the Company's Board
of Directors and evidenced by a Board Resolution) of all
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consideration from all Asset Sales since the date of this Indenture that is
other than cash, Cash Equivalents and Steel Business Assets ("Other
Consideration") at the time of such Asset Sale, less the sum of the amount of
any cash and Cash Equivalents and the fair market value (as determined in good
faith by the Company's Board of Directors and evidenced by a Board Resolution)
of any Steel Business Assets realized from, or received in exchange for, any
Other Consideration prior to the time of such Asset Sale, does not exceed 5% of
total assets at the time of such Asset Sale.
(b) Within twelve months of the date that the Available Amount equals
or exceeds $5,000,000, the Company shall elect to either (A) apply or cause to
be applied the Available Amount to a Permitted Related Acquisition or the
commencement thereof (provided that such project is completed within a
reasonable time of the commencement thereof), (B) make an offer (an "Asset Sale
Offer") to purchase 1998 Securities from all Holders thereof and, in the case of
an Asset Sale of Collateral and to the extent required by the terms of any other
Securities issued hereunder, from all Holders thereof (treating the Holders of
all Securities as one group for such purpose) up to an amount equal to the
Available Amount (rounded to the next lowest multiple of $1,000) at a purchase
price equal to 100% of the principal amount thereof plus accrued interest
thereon, if any, to the date of purchase, (C) repay senior Indebtedness, other
than Indebtedness represented by the 1998 Securities, from Net Cash Proceeds of
Asset Sales other than sales of Collateral or (D) any combination of clauses
(A), (B) and (C) above; provided, that (i) property acquired at any time as a
Permitted Related Acquisition (other than a Permitted Related Acquisition of
property securing the New Credit Facility) that has been acquired with
Collateral Proceeds shall be subject to a first priority Lien in favor of the
Collateral Agent for the benefit of the Trustee and the Holders; (ii) pending
application to a Permitted Related Acquisition or an Asset Sale Offer or
distribution under Section 13.2, the Collateral Proceeds, together with all
Condemnation Awards and Net Insurance Proceeds received by the Collateral Agent,
will be retained by the Collateral Agent in the Collateral Account subject to a
first priority Lien in favor of the Collateral Agent for the benefit of the
Trustee and the Holders; and (iii) notwithstanding the foregoing, as long as no
Event of Default shall have occurred and be continuing, (A) the Company and its
Recourse Subsidiaries, in the aggregate, shall be permitted to retain $1,000,000
of Net Cash Proceeds from Asset Sales, (B) to the extent that Holders do not
subscribe to an Asset Sale Offer, the Company may retain the unutilized
Available Amount and (C) the Company and its Recourse Subsidiaries collectively
may retain the Net Cash Proceeds from the sale of any machinery, equipment,
furniture, apparatus, tools or implements or other similar property subject to
the Lien of the Security Documents, which may have become worn out, obsolete or
no longer necessary to the operation of the Company's or its Recourse
Subsidiaries' business ("Obsolete Assets") in an aggregate amount not to exceed
$2,000,000 in any year, in the case of clauses (A), (B) and (C) in this clause
(iii), free of the Lien of the Security Documents, and such retained amounts
shall be released from the Collateral Account promptly upon demand.
Notwithstanding anything to the contrary in this Indenture, neither the Company
nor any of its Recourse Subsidiaries
71
shall apply the proceeds of any Collateral which is a part of the Mortgaged
Facility to the purchase of collateral securing the New Credit Facility.
(c) The Company shall provide the Trustee with notice of any Asset
Sale Offer at least 10 days before any notice of an Asset Sale Offer is mailed
to Holders of the Securities (unless shorter notice is acceptable to the
Trustee). If the Company elects to make an Asset Sale Offer, notice of such
Asset Sale Offer shall be mailed by the Company to the Holders of the Securities
subject to the Asset Sale Offer, with a copy to the Trustee and the Paying
Agent, not more than twelve months after the Available Amount equals or exceeds
$5,000,000 which notice shall specify the purchase date (which shall be no
earlier than 30 days nor later than 60 days from the date such notice is mailed
(the "Asset Sale Payment Date") and will otherwise comply with the procedures
set forth in the Indenture and the Security Documents. The Asset Sale Offer
shall remain open from the time of mailing for at least 20 Business Days and
until at least 5:00 p.m., Central time, on the Business Day immediately
preceding the Asset Sale Payment Date. The notice, which shall govern the terms
of the Asset Sale Offer, shall include such disclosures as are required by law
and shall state:
(i) that the Asset Sale Offer is being made pursuant to this
Section 6.15;
(ii) the purchase price (including the amount of accrued
interest, if any) for each Security and the Asset Sale Payment Date;
(iii) that any Security not tendered or accepted for payment
shall continue to accrue interest in accordance with the terms thereof;
(iv) that any Security accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset Sale Payment
Date;
(v) that Holders electing to have Securities purchased pursuant
to an Asset Sale Offer must surrender their Securities with the form
"Option of Holder to Elect Purchase" on the reverse of the Securities
completed, to the Paying Agent at the address specified in the notice prior
to 5:00 p.m., Central time, on the Business Day immediately preceding the
Asset Sale Payment Date and must complete any form letter of transmittal
proposed by the Company and acceptable to the Trustee and the Paying Agent;
(vi) that Holders shall be entitled to withdraw their elections
if the Paying Agent receives, not later than 5:00 p.m., Central time, on
the third Business Day immediately preceding the Asset Sale Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Securities the Holder delivered for purchase, the
Security certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Securities purchased;
72
(vii) that if Securities in a principal amount in excess of the
Holders' pro rata share of the Available Amount are tendered pursuant to
the Asset Sale Offer, the Company shall purchase on a pro rata basis among
the Securities tendered (with such adjustments as may be deemed appropriate
by the Company so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(viii) that Holders whose Securities are purchased only in part
shall be issued new Securities of the same series and equal in principal
amount to the unpurchased portion of the Securities surrendered; and
(ix) the instructions that Holders must follow to tender their
Securities.
On or about the Asset Sale Payment Date, the Company shall (i) accept
for payment, on a pro rata basis among the Securities tendered, Securities or
portions thereof pursuant to the Asset Sale Offer and (ii) deliver to the Paying
Agent the Securities so accepted together with an Officers' Certificate setting
forth the Securities or portions thereof tendered to and accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver (or, in the case
of a Global Security, transfer immediately available funds, on the Asset Sale
Payment Date to the Depositary) to each Holder of the Securities so accepted,
payment in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to each such Holder a new Security of the same
series and equal in principal amount to any unpurchased portion of the
Securities surrendered upon receipt from the Company thereof. Any Security 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 first Business Day following the Asset Sale Payment Date. To the
extent the Holders' pro rata portion of an Asset Sale Offer is not fully
subscribed to by such Holders, the Company may retain (free and clear of the
Lien of this Indenture and the Security Documents) such unutilized portion. The
Paying Agent shall promptly deliver to the Company the balance of any such Trust
Moneys held by the Paying Agent after payment to the Holders as aforesaid. For
purposes of this Section 6.15, so long as the Collateral Agent is also the
Trustee, the Collateral Agent shall act as the Paying Agent and, otherwise, the
Trustee shall act as Paying Agent.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to the
Asset Sale Offer. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 6.15, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 6.15 by virtue
thereof.
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SECTION 6.16. Limitation on Dividend and Other Payment Restrictions Affecting
Recourse Subsidiaries.
So long as any 1998 Securities shall remain Outstanding, the Company
shall not, and shall not permit any of its Recourse Subsidiaries to, directly or
indirectly, create, assume or otherwise cause or suffer to exist or enter into
any agreement with any Person that would cause any consensual encumbrance or
restriction of any kind on the ability of any such Recourse Subsidiary to (a)
pay dividends, in cash or otherwise, or make any other distributions on its
Capital Stock; (b) make payments in respect of any Indebtedness owed to the
Company or any of the Company's Recourse Subsidiaries; (c) make loans or
advances to the Company or any of the Company's Recourse Subsidiaries; or (d)
transfer any of its assets to the Company or any of the Company's Recourse
Subsidiaries, other than by reason of (i) the Securities, the Indenture and the
Security Documents; (ii) restrictions existing under agreements in effect on the
date of this Indenture, including, without limitation, restrictions under the
New Credit Facility as in effect on the date of this Indenture; (iii) consensual
encumbrances or restrictions binding upon any Person at the time such Person
becomes a Recourse Subsidiary of the Company so long as such encumbrances or
restrictions are not created, incurred or assumed in contemplation of such
Person becoming a Recourse Subsidiary of the Company; (iv) restrictions existing
under any agreement which refinances or replaces any of the agreements
containing the restrictions in (ii) or (iii); provided, that the terms and
conditions of any such restrictions are not materially less favorable to the
Company or such Recourse Subsidiary than those under the agreement evidencing
the refinanced Indebtedness; (v) customary non-assignment or sublease provisions
of (A) any lease governing a leasehold interest of the Company or any Recourse
Subsidiaries or (B) any other contract or agreement of the Company or any
Recourse Subsidiary for the purchase or sale of goods or services entered into
in the ordinary course of business and involving, in the case of any contract or
agreement, payments of $1,000,000 or less in the aggregate in any fiscal year;
(vi) customary restrictions relating to assets acquired with the proceeds of a
purchase money obligation; (vii) any restrictions with respect to a Recourse
Subsidiary of the Company imposed pursuant to an agreement which has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Recourse Subsidiary; (viii) restrictions created
in connection with a Qualified Asset Backed Transaction that, in the good faith
determination of the Board of Directors, are necessary to effect such Qualified
Asset Backed Transaction; provided, that such restrictions apply only to such
Asset Backed Entity; and (ix) customary provisions contained in joint venture
agreements and other similar agreements entered into in the ordinary course of
business.
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SECTION 6.17. Limitation on Sale and Leaseback Transactions.
So long as any 1998 Securities shall remain Outstanding, the Company
shall not, and shall not permit any of its Subsidiaries to, enter into, directly
or indirectly, any Sale and Leaseback Transaction, with respect to any real or
tangible personal property, other than (i) a Sale and Leaseback Transaction
entered into between the Company and any of its Wholly-Owned Recourse
Subsidiaries or between Wholly-Owned Recourse Subsidiaries of the Company, as
the case may be; (ii) Capitalized Lease Obligations permitted to be incurred by
the Company or any of its Subsidiaries pursuant to the limitations on
Indebtedness set forth in Section 6.9; and (iii) a Sale and Leaseback
Transaction the gross cash proceeds of which are at least equal to the fair
market value (as determined in good faith by a Board Resolution, which
determined shall be conclusive evidence of compliance with this provision) of
the property that is the subject of such Sale and Leaseback Transaction and the
transfer of assets in such Sale and Leaseback Transaction is permitted by, and
the Company applies the net proceeds of such transaction in compliance with, the
covenants and agreements set forth in Section 6.15.
SECTION 6.18. Intentionally Omitted.
SECTION 6.19. Change of Control.
In the event of a Change of Control (the date of such occurrence, the
"Change of Control Date"), the Company shall notify the Holders of 1998
Securities in writing of such occurrence and shall make an offer to purchase
(the "Change of Control Offer") on a Business Day (the "Change of Control
Payment Date") not earlier than 30 days nor later than 60 days from the date
such notice is mailed all 1998 Securities then outstanding at a purchase price
equal to 101% of the principal amount thereof plus accrued interest to the
Change of Control Payment Date, if any.
Notice of a Change of Control Offer shall be mailed by the Company
within 30 days following the Change of Control Date to the Holders of 1998
Securities at their last registered addresses with a copy to the Trustee and the
Paying Agent. The Change of Control Offer shall remain open from the time of
mailing for at least 20 Business Days and until 5:00 p.m., Central time, on the
Business Day immediately preceding the Change of Control Payment Date. The
notice, which shall govern the terms of the Change of Control Offer, shall
include such disclosures as are required by law and shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 6.19 and that all 1998 Securities tendered shall be accepted for
payment;
(ii) the purchase price (including the amount of accrued interest, if
any) for each 1998 Security and the Change of Control Payment Date;
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(iii) that any 1998 Security not tendered or accepted for payment
shall continue to accrue interest in accordance with the terms thereof;
(iv) that any 1998 Security accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(v) that Holders electing to have 1998 Securities purchased pursuant
to a Change of Control Offer must surrender their 1998 Securities with the
form "Option of Holder to Elect Purchase" on the reverse of the Securities
completed, to the Paying Agent at the address specified in the notice prior
to 5:00 p.m., Central time, on the Business Day immediately preceding the
Change of Control Payment Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee and the
Paying Agent;
(vi) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than 5:00 p.m., Central time, on the third
Business Day immediately preceding the Change of Control Payment Date, a
telegram, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of 1998 Securities the Holder delivered for
purchase, the 1998 Security certificate number (if any), and a statement
that such Holder is withdrawing his election to have such 1998 Securities
purchased;
(vii) that Holders whose 1998 Securities are purchased only in part
shall be issued 1998 Securities equal in principal amount to the
unpurchased portion of the 1998 Securities surrendered;
(viii) the instructions that Holders must follow to tender their
Securities; and
(ix) the circumstances and relevant facts regarding such Change of
Control (including, but not limited to, information with respect to pro
forma historical financial information, including income, cash flow and
capitalization, after giving effect to such Change of Control, information
regarding the Persons acquiring control and such Person's business plans
going forward).
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment 1998 Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Payment Agent money sufficient to
pay the purchase price of all 1998 Securities or portions thereof so tendered
and accepted and (iii) deliver to the Trustee the 1998 Securities so accepted
together with an Officers' Certificate setting forth the Securities or portions
thereof tendered to and accepted for payment by the Company. The Paying Agent
shall promptly mail or deliver (or, in the case of a Global Security, transfer
immediately available funds on the Change of Control Payment Date to the
Depositary) to the Holders of 1998 Securities so accepted
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for payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new 1998 Security
equal in principal amount to any unpurchased portion of the 1998 Security
surrendered upon receipt from the Company thereof. Any 1998 Security 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 Change of
Control Offer not later than the first Business Day following the Change of
Control Payment Date.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities laws
or regulations in connection with the repurchase of 1998 Securities pursuant to
a Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 6.19, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 6.19 by virtue
thereof.
SECTION 6.20. Limitations as to Non-Recourse Subsidiaries.
So long as any 1998 Securities shall remain Outstanding, the Company
shall not permit any Non-Recourse Subsidiary to create, assume, incur, guarantee
or otherwise become liable in respect to any Indebtedness other than Non-
Recourse Indebtedness. Neither the Company nor any if its Non-Recourse
Subsidiaries will sell, lease, convey or otherwise transfer to any Non-Recourse
Subsidiary any asset which is essential to the steel making operations of the
Company or its Recourse Subsidiaries. The Released Property shall be deemed to
be not essential to the steel making operations of the Company and its Recourse
Subsidiaries.
SECTION 6.21. Impairment of Security Interest.
So long as any 1998 Securities shall remain Outstanding, the Company
shall not, and shall not permit any of its Recourse Subsidiaries to, take or
omit to take any action, which action or omission might or would have the result
of affecting or impairing the security interest in favor of the Collateral
Agent, on behalf of the Trustee and the Holders with respect to the Collateral,
and the Company shall not grant to any Person (other than the Collateral Agent
on behalf of the Trustee and the Holders) any interest whatsoever in the
Collateral, except, in either case, as expressly permitted by Section 6.10 and
the Security Documents.
SECTION 6.22. Conflicting Agreements.
So long as any 1998 Securities shall remain Outstanding, the Company
shall not, and shall not permit any of its Recourse Subsidiaries to, enter into
any agreement or instrument that by its terms expressly (i) prohibits the
Company from redeeming or otherwise making any payments on or in respect of the
1998 Securities in accordance with the terms thereof or hereof, as in effect
from time to time (provided
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that any provision which would result in a breach of, or a default under, the
New Credit Facility in the event that the Company makes any payments on or in
respect of the 1998 Securities shall not be considered a prohibition in
violation of this Section 6.22), or (ii) requires that the proceeds received
from the sale of any Collateral be applied to repay, redeem or otherwise retire
any Indebtedness of any Person other than the Indebtedness represented by the
Securities of all series, except as expressly permitted hereby or by the
Security Documents.
SECTION 6.23. Amendment to Security Documents.
So long as any 1998 Securities shall remain Outstanding and except as
otherwise permitted by this Indenture, the Company shall not, and shall not
permit any of its Recourse Subsidiaries to, amend, modify or supplement, or
permit or consent to any amendment, modification or supplement of, any of the
Security Documents in any way which would be adverse to the Holders or which
would constitute a Default hereunder or a default under any Security Document.
SECTION 6.24. Inspection.
The Company shall, and shall cause each of its Subsidiaries to, permit
authorized representatives of the Trustee and the Collateral Agent to visit and
inspect the properties of the Company or its Subsidiaries, and any or all books,
records and documents in the possession of the Company relating to the
Collateral, and to make copies and take extracts therefrom and to visit and
inspect the Collateral, all upon reasonable prior notice and at such reasonable
times during normal business hours and as often as may be reasonably requested.
SECTION 6.25. Use of Proceeds.
The Company shall use the proceeds of the 1998 Securities in the
manner described in the Offering Memorandum. The Company shall not use any part
of such proceeds to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock. Neither the
issuance of any Security nor the use of the proceeds thereof shall violate or be
inconsistent with the provisions of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System.
SECTION 6.26. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
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Whenever the Company shall have one or more Paying Agents, it will, on
or prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of Section 317 of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities of any
series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent as such in respect of such series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in New Orleans and New York City, or give by mail to
each Holder, 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
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company.
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SECTION 6.27. Limitation on Improvements to the Released Property.
In the event that the Company contributes the Released Property to a
Non-Recourse Subsidiary as permitted under Section 6.13 and new facilities are
constructed on such property, the Company covenants that such new facilities
(the "Released Property Facilities") (i) shall be designed for use in lines of
business related to the Company's or one of its Recourse Subsidiaries' business
at such time, (ii) may not be financed in whole or in part by the sale of
Securities of any series (provided, however, that subject to the restrictions on
the use of proceeds from any future issuance of Securities as provided under
Section 6.9, the Company may contribute capital or otherwise invest in such Non-
Recourse Subsidiary to the extent permitted under the Indenture under Section
6.13 even if such capital or investment is financed, directly or indirectly, by
the sale of Securities of any series), (iii) may not replace any Integral
Fixtures and Equipment and (iv) if subsequently removed, will not have a
material adverse impact on the operations in the ordinary course of business of
the Mortgaged Facility, as in existence immediately prior to commencement of the
construction of the Released Property Facility (in the case of clause (iv), as
conclusively established by a Board Resolution).
ARTICLE VII
SUCCESSOR CORPORATION
SECTION 7.1. Merger and Consolidation.
The Company shall not consolidate with or merge into any other Person
or convey, sell, assign, transfer or lease all or substantially all of its
properties and assets (determined on a consolidated basis for the Company and
its Recourse Subsidiaries taken as a whole) in one transaction or a series of
transactions to any other Person or Persons, or permit any Person to consolidate
with or merge into the Company, or convey, sell, assign, transfer or lease all
or substantially all of such Person's properties and assets in one transaction
or a series of transactions to the Company, unless:
(i) such Person is a solvent corporation, partnership or trust
organized under the laws of the United States, one of the States thereof or
the District of Columbia;
(ii) the resulting, surviving or transferee corporation,
partnership or trust (if other than the Company) assumes by a supplemental
indenture executed and delivered to the Trustee, in form satisfactory to
the Trustee, all of the Company's obligations under the Securities, the
Indenture and the Security Documents;
(iii) immediately before and after giving effect to such
transaction or series of transactions, no Default or Event of Default shall
have occurred and be continuing;
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(iv) immediately after giving effect to such transaction or
series of transactions (including, without limitation, any Indebtedness
incurred or anticipated to be incurred in connection with or in respect of
the transaction or series of transactions), the Company, or the successor
or transferee corporation, would be permitted to incur an additional $1.00
of Indebtedness pursuant to the Indenture; and
(v) the Company or the surviving entity shall have delivered to
the Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, sale, transfer or
lease and, if a supplemental indenture has been executed in connection with
such transaction or series of transactions, such supplemental indenture
complies with this covenant and that all conditions precedent in the
Indenture relating to the transaction or series of transactions have been
satisfied.
Notwithstanding the foregoing, clause (iv) shall not prohibit a
transaction, the principal purpose of which is (as determined in good faith by
the Board of Directors of the Company and evidenced by the Board Resolution or
Board Resolutions thereof) to change the state of incorporation of the Company,
and such transaction does not have as one of its purposes the evasion of the
limitation on merger, consolidations and sales of assets contained herein.
Nothing contained in this Article shall be deemed to prevent the Company or any
Subsidiary from granting a security interest in, or a mortgage or Lien upon, or
otherwise encumbering, any of its assets, subject to the limitations on Liens
set forth in Section 6.10. Notwithstanding the foregoing, the Company and its
Recourse Subsidiaries may not consolidate with or merge into a Non-Recourse
Subsidiary or convey, sell, assign, transfer or lease all or substantially all
of their properties and assets (determined, with respect to the Company, on a
consolidated basis for the Company and its Subsidiaries taken as a whole) in one
transaction or a series of transactions to any Non-Recourse Subsidiary, or
permit any Non-Recourse Subsidiary to consolidate with or merge into the Company
or any of its Recourse Subsidiaries or convey, sell, assign, transfer or lease
all or substantially all of such Non-Recourse Subsidiary's properties and assets
in one transaction or a series of transactions to the Company or any of its
Recourse Subsidiaries.
SECTION 7.2. Surviving Person Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with Section 7.1,
the surviving person formed by such consolidation or into which the Company is
merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such surviving person had been named as the Company
herein.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series (unless otherwise provided pursuant to Section 3.1(a) with respect to
any other series of Securities), means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(ii) default in the payment of the principal, or premium, if any,
of any Security of that series on a Maturity Date; or
(iii) default in the performance, or breach, of any covenant
or agreement described in Sections 6.15 or 6.19 of this Indenture, and
continuance of such default or breach for a period of thirty days or the
Company fails to comply with the covenant set forth in Section 7.1; or
(iv) failure to observe or perform any covenant, condition or
agreement in respect of the Securities of that series, the Indenture (other
than any covenant, condition or agreement which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series) or the Security Documents (other than as described in clause
(i), (ii), (iii) or (x)), or established in respect of the Securities of
that series pursuant to Section 3.1(a), and such failure to observe or
perform continues for a period of 30 days after there has been given to the
Company by the Trustee, or has been received by the Company and the Trustee
from the Holders of at least 25% of the principal amount of the Outstanding
Securities of that series, a written notice specifying such default,
demanding that it be remedied and stating that the notice is a "Notice of
Default", unless, with respect to defaults under the Security Documents,
the remedy or cure of such default requires work to be performed, acts to
be done or conditions to be removed which cannot, by their nature,
reasonably be performed, done or removed within such 30-day period, or if
such remedy or cure is prevented by causes outside of the control or
responsibility of the Company, in which case no "Event of Default" shall be
deemed to have occurred until the date that is 90 days after such written
notice so long as the Company shall have commenced cure within such 90-day
period and shall diligently prosecute the same to completion; or
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(v) a default in the payment of principal at final maturity
under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness of the
Company or any of its Recourse Subsidiaries (or the payment of which is
guaranteed now or hereafter by the Company or any of its Subsidiaries),
whether such Indebtedness or Guarantee now exists or shall hereafter be
created in a principal amount of at least $5,000,000; or
(vi) 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 (including any interest thereon) of the Company
or its Recourse Subsidiaries (or the payment of which is guaranteed now or
hereafter by the Company or any of its Subsidiaries), whether such
Indebtedness or Guarantee now exists or shall hereafter be created if (a)
as a result of such event of default the maturity of such Indebtedness has
been accelerated prior to its stated maturity and (b) the principal amount
of such Indebtedness, together with the principal amount of any other
Indebtedness of the Company and its Recourse Subsidiaries the maturity of
which has been so accelerated, aggregates $5,000,000 or more; or
(vii) the Company or any Subsidiary (other than a Non-Recourse
Subsidiary, unless such action or proceeding results in the Company or any
Recourse Subsidiary becoming liable or responsible for liabilities or
obligations of such Non-Recourse Subsidiary in an aggregate amount in
excess of $5,000,000 and has a material adverse effect on the ability of
the Company to satisfy its obligations under this Indenture or the
Securities of any series) pursuant to or within the meaning of any
Bankruptcy Law (a) commences a voluntary case or proceeding; (b) consents
to the entry of an order for relief against it in an involuntary case or
proceeding; (c) consents to the appointment of a Custodian of it or for all
or substantially all of its property; (d) makes a general assignment for
the benefit of its creditors; or (e) admits in writing its inability to pay
its debts as the same become due; or
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (a) is for relief against the Company
or any Subsidiary in an involuntary case; (b) appoints a Custodian of the
Company or any Subsidiary for all or substantially all of its property; or
(c) orders the liquidation of the Company or any Subsidiary; provided, that
clauses (a), (b) and (c) shall not apply to a Non-Recourse Subsidiary,
unless such action or proceeding results in the Company or any Recourse
Subsidiary becoming liable or responsible for liabilities or obligations of
such Non-Recourse Subsidiary in an aggregate amount in excess of $5,000,000
and has a material adverse effect on the ability of the Company to satisfy
its obligations under this Indenture or the Securities of any series and in
any such case the order or decree remains unstayed and in effect for 60
days; or
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(ix) the Company or any Recourse Subsidiary shall fail to
discharge any one or more judgments not covered by insurance (from which no
further appeal may be taken) in excess of $5,000,000, and such judgments
shall remain in force, undischarged, unsatisfied, unstayed and unbonded for
more than 30 days; or
(x) (a) the Security Documents shall cease, for any reason, to be
in full force and effect or shall cease to be effective to grant a
perfected Lien on the Collateral with the priority purported to be created
thereby, in each case with respect to Collateral the aggregate value of
which is in excess of $3,000,000 or (b) the Security Documents shall cease,
for any reason, to be in full force and effect or shall cease to be
effective to grant a perfected Lien on the Collateral with the priority
purported to be created thereby in any case with respect to Collateral the
aggregate value of which is $3,000,000 or less and the Company or any
Recourse Subsidiary, as applicable, shall have failed to take reasonable
steps to cure such event promptly after having learned thereof; or
(xi) an event of default shall have occurred with respect to the
Securities of any other series and as a result of such event of default,
the maturity of the Securities of such other series shall been accelerated
prior to its stated maturity; or
(xii) with respect to any series of Securities other than
the 1998 Securities, any other Event of Default provided in the applicable
Board Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section
3.1(a).
SECTION 8.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
subparagraph (vii), (viii) or (xi) of Section 8.1) with respect to Securities of
any series at any time Outstanding occurs and is continuing, then and in every
such case the Trustee or the Holders of at least 25% in principal amount of the
Outstanding Securities of that series may declare the principal of and accrued
interest on all the Securities of that series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal shall become immediately due and
payable. If an Event of Default specified in clause (vii), (viii) or (xi) of
Section 8.1 occurs, the principal amount and accrued interest shall ipso facto
become and be immediately due and payable on all Outstanding Securities without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that
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series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue interest on all Securities of that series;
(b) the principal of any Securities of that series which have
become due otherwise than solely by such declaration of acceleration
and interest thereon at the rate borne by the Securities of that
series;
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities of
that series; and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(ii) all Events of Default with respect to the Securities of
that series, other than the non-payment of the principal of Securities of
that series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 8.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 8.3. Collection of Debt and Suits for Enforcement by Trustee.
The Company covenants that if:
(i) default is made in the payment of any interest on any Security of
any series when such interest becomes due and payable and such default
continues for a period of 30 days; or
(ii) default is made in the payment of the principal of any Security
of any series on a Maturity Date,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate borne by such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or the Security Documents or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Each Holder, by accepting a Security, acknowledges that the exercise
of remedies by the Trustee with respect to the Collateral is subject to the
terms and conditions of the Security Documents and the proceeds received upon
realization of the Collateral shall be applied by the Trustee in accordance with
Section 8.6.
SECTION 8.4. Trustee May File Proofs of Claims.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities of any series), its property or its creditors,
the Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
Securities of any series any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of such series or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 8.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, the Security
Documents or the Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any
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recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 8.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities with respect to which such moneys were
collected and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 9.7 and, in its capacity as Collateral Agent, for amounts due
under the Security Documents;
SECOND: To the payment of unpaid interest accrued on the
Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
interest;
THIRD: To the payment of the unpaid principal of the Securities
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal; and
FOURTH: To the Company or any other obligors on the Securities,
as their interests may appear, or as a court of competent jurisdiction
may direct.
SECTION 8.7. Limitation on Suits.
Except as provided in Section 8.8, no Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of that series;
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(ii) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 15 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given
to the Trustee during such 15-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders shall have any
right in any manner whether by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal of or accrued interest on
such Securities on or after the respective due dates set forth in such
Securities.
SECTION 8.8. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 3.7) interest on
such Security on the respective Maturity Dates expressed in such Security and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired or affected without the consent of such Holder, except to the
extent that the institution or prosecution of such suit or entry of judgment
therein would, under applicable law, result in the surrender, impairment or
waiver of the Lien of this Indenture and the Security Documents upon the
Collateral.
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SECTION 8.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 8.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 8.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of Securities of
any series to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 8.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series, shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of that series; provided, that the Trustee may refuse to follow any
direction that:
(i) conflicts with any rule of law or with this Indenture;
(ii) the Trustee determines may be unduly prejudicial to the
rights of another Holder; or
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(iii) may involve the Trustee in personal liability unless the
Trustee has indemnification satisfactory to it in its sole discretion
against any loss or expense caused by it following such directions;
provided, further, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 8.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(i) in the payment of the principal of or interest on any
Security of such series; or
(ii) in respect of a covenant or provision hereof which under
Article XI cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 8.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess reasonable
costs, including reasonable attorneys' fees, against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Trustee, a suit by a Holder of any Security pursuant to
Section 8.8, or a suit by a Holder or Holders of more than 10% in aggregate
principal amount of the Outstanding Securities of any series.
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SECTION 8.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 8.16. Collection Suit by Trustee.
If an Event of Default specified in Section 8.1(i) or 8.1(ii) or
8.1(iii) occurs and is continuing with respect to the Securities of any series,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company (or any other obligor upon such Securities) for the
whole amount of principal and accrued interest remaining unpaid, together with
interest overdue on principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate per annum borne by the Securities of such series, and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
ARTICLE IX
THE TRUSTEE
SECTION 9.1. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 9.1. If an Event of Default has
occurred and is continuing with respect to the Securities of any series, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the circumstances in the conduct of its own
affairs.
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SECTION 9.2. Notice of Defaults.
The Trustee shall give the Holders of each series of Securities notice
of any default hereunder or in respect of the Securities of any series as and to
the extent provided by Section 315(b) of the Trust Indenture Act. Except in the
case of a Default or an Event of Default in payment of principal of or interest
on any Security (including the failure to make payments with respect to
redemptions, Asset Sale Offers or a Change of Control Offer), the Trustee may
withhold the notice if and so long as the Trustee in good faith determines that
withholding the notice is in the interest of Holders.
SECTION 9.3. Certain Rights of Trustee.
Subject to Sections 315(a) through (d) of the Trust Indenture Act, the
terms of which are hereby incorporated herein by this reference:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the 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 in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities,
including but not limited to environmental liabilities, which might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) Except for the failure of the Company to make or cause to be made
any scheduled payment to the Trustee provided for in this Indenture, the
Trustee shall not be deemed to have knowledge of any fact or circumstance,
including but not limited to a Default or Event of Default, unless and
until the Trustee shall been given written notice thereof or until an
officer of the Trustee who customarily handles coporate trusts and is
assigned to supervise the Indenture shall have actual knowledge thereof;
and
(i) subject to Section 11.2 hereof, the Trustee may (but shall not be
obligated to), without the consent of the Holders of Securities of any
series, give any consent, waiver or approval required under the Security
Documents or by the terms hereof with respect to the Collateral, but shall
not without the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series (i) give any consent,
waiver or approval or (ii) agree to any amendment or modification of the
Security Documents, in each case, that shall have an adverse effect on the
interests of any Holder. The Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any
consent, waiver, approval, amendment or modification shall have an adverse
effect on the interests of any Holder.
SECTION 9.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities of any series,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities of any series. The Trustee
shall not be accountable for the use or application by the Company of Securities
of any series or the proceeds thereof.
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SECTION 9.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
9.8 and 9.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 9.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 9.7. Compensation and Reimbursement.
The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder and under the
Security Documents (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture or the Security Documents (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the Security Documents, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder or thereunder.
The Trustee shall notify the Company promptly of any claim asserted
against it for which it may seek indemnity.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a Lien prior to the Securities on all
properties and
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funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of or interest on particular Securities.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 8.1(vii) or (viii) occurs, the expenses and
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law or other similar law.
The Company's obligations under this Section 9.7 and any Lien arising
hereunder shall survive the resignation or removal of any Trustee, the discharge
of the Company's obligations pursuant to Articles IV or XII of this Indenture
and/or the termination of this Indenture.
SECTION 9.8. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 9.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to Section 310(a) of the Trust Indenture Act to
act as such and has a combined capital and surplus of at least $50,000,000 and
its Corporate Trust Office in New Orleans, Louisiana. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section 9.9, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 9.9, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 9.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 9.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series, by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 9.8 with
respect to Securities of any series after written request therefor by the
Company or by any Holder of Securities of such series who has been a bona
fide Holder of a Security of such series for at least six months; or
(ii) the Trustee shall cease to be eligible under Section 9.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to Securities of any series, or (2) subject to Section
8.14, any Holder of a Security of such series who has been a bona fide Holder of
such Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to Securities of such series and the appointment of
a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to any series of Securities and each appointment of
a successor Trustee with respect to any series of Securities to all Holders of
Securities of
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such series in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
(g) Any resignation or removal of the Trustee pursuant to this
Indenture shall be deemed to be a resignation or removal of the Trustee in its
capacity as Collateral Agent under the Security Documents and any appointment of
a successor Trustee pursuant to this Indenture shall be deemed to be an
appointment of a successor Collateral Agent under the Security Documents and
such successor shall assume all of the obligations of the Trustee in its
capacity as Collateral Agent under the Security Documents.
SECTION 9.11. Acceptance of Appointment by Successor.
Every successor Trustee with respect to one or more series of
Securities appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee for that or
those series of Securities shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of such retiring Trustee; but, on request of
the Company or such successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of such retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its Lien,
if any, provided for in Section 9.7. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 9.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder; provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 9.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon any series of Securities), the Trustee shall be
subject to the provisions of Section 311 of the Trust Indenture Act regarding
the collection of claims against the Company (or any such other obligor).
SECTION 9.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial repurchase or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 9.14, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 9.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such
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Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of all series with respect to which such Authentication
Agent will serve as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 9.14.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 9.14, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 9.7.
If an appointment with respect to one or more series of Securities is
made pursuant to this Section 9.14, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Indenture.
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the series
designated therein issued under the Indenture
described herein.
FIRST NATIONAL BANK
OF COMMERCE, As Trustee
By_______________________________
As Authenticating Agent
By_______________________________
Authorized Officer
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ARTICLE X
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 10.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will, with respect to the Securities of each series, furnish
or cause to be furnished to the Trustee:
(i) semi-annually, not more than 15 days after each Regular
Record Date for the Securities of such series, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of the Securities of such series as of such Regular Record Date; and
(ii) at such other times as the Trustee may request in writing
with respect to any series of Securities, within 30 days after the receipt
by the Company of any such request, a list of similar form and content with
respect to such series as of a date not more than 15 days prior to the time
such list is furnished;
provided, no such list need be furnished if the Trustee is acting as Security
Registrar.
SECTION 10.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities of each series
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of each series received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 10.1 upon receipt of a new list so
furnished.
(b) The rights of Holders of Securities of any series to communicate
with other Holders of Securities of such series with respect to their rights
under this Indenture or under the Securities of such series, and the
corresponding rights and duties of the Trustee, shall be as provided by Section
312 of the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
Section 312 of the Trust Indenture Act.
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SECTION 10.3. Reports by Trustee.
(a) Within 60 days after each May 15 beginning with May 15, 1999, with
respect to Securities of any series, so long as Securities of such series are
Outstanding, the Trustee shall transmit to Holders of Securities of such series
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to Section 313 of the Trust Indenture Act at the times and
in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when and as any Securities are listed on any stock
exchange.
SECTION 10.4. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders of Securities of all series, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to
Section 314 of the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided, that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same shall
be so required to be filed with the Commission; provided further that if the
Company is not subject to the periodic reporting and information requirements of
the Exchange Act, it will provide to Holders of Securities of all series annual
reports containing audited consolidated financial statements and an opinion
thereon by the Company's independent certified public accountants, and quarterly
reports for the first three quarters of each fiscal year containing unaudited
condensed consolidated financial statements.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the Subsidiary
Guarantors, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental hereto
or amendments to the Security Documents, in form satisfactory to the Trustee,
for any of the following purposes:
(i) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(ii) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), or to surrender any right or power herein conferred upon the
Company; or
(iii) to comply with any requirements of the Commission in
order to obtain or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 11.5; or
(iv) to pledge or grant a security interest in favor of the
Trustee for the benefit of the Holders of Securities of all series as
additional security for the payment and performance of the Company's
obligations under this Indenture and such Securities, in any property or
assets, including any that are required to be pledged or in which a
security interest is required to be granted, to the Trustee pursuant to the
Security Documents or otherwise; or
(v) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture; provided, that such action pursuant to this Clause (v)
shall not adversely affect the interests of the Holders of Securities of
any series; or
(vi) to establish the terms of Securities of any series, other
than the 1998 Securities, as permitted by Section 3.1(a);
(vii) to supplement any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of the
Securities of any series initially as securities registered under the
Securities Act; provided, that any such action shall not adversely affect
the interests of the Holders of any other series; or
(viii) to add any Person who becomes a Recourse Subsidiary
of the Company after the date of this Indenture as a party to this
Indenture as contemplated by Section 12.1(a).
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SECTION 11.2. Supplemental Indentures with Consent of Holders.
(a) With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company and the Subsidiary Guarantors, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture, the
Securities of such series or the Security Documents or of modifying in any
manner the rights of the Holders under this Indenture, the Securities of such
series or the Security Documents; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or alter the redemption
provisions or reduce the principal amount thereof or the rate of interest
thereon, or change the place of payment where, or the coin or currency in
which, any Security or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Maturity Date thereof; or
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(iii) modify any of the provisions of this Section 11.2 or
Section 8.8 or 8.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; or
(iv) affect the ranking of the Securities of any series or the
Liens in favor of the Trustee, the Collateral Agent and the Holders in a
manner adverse to the Holders of Securities of any series or release all or
substantially all of the Collateral.
Notwithstanding clause (iv) above, any amendment or modification of,
or waiver with respect to, the Indenture, any series of Securities or the
Security Documents requested by the Company in connection with any intercreditor
agreement or similar arrangement to facilitate the financing, construction or
operation of Released Property Facilities shall only require the approval of not
less than a two-thirds majority of the aggregate principal amount of the
Outstanding Securities of each series affected
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thereby, even if such intercreditor agreement or similar arrangement affects the
ranking or security of such series. No such intercreditor agreement or similar
arrangement shall, however, cause the Trustee to release the Lien in favor of
the Trustee and the Holders of any series of Securities on the Collateral except
in compliance with Sections 4.1, 4.3, 12.3, 14.2 and 14.3. Further, no such
intercreditor agreement or similar arrangement shall cause the Trustee to
subordinate the Liens in favor of the Holders of any series of Securities under
the Security Documents to Liens in favor of creditors financing Released
Property Facilities.
(b) It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
(c) After an amendment, supplement or waiver under this Section 11.2
becomes effective, the Company shall mail to the Holders of any series of
Securities 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 amendment, supplement or waiver.
SECTION 11.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 9.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 11.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Each Subsidiary Guarantor agrees that each supplemental
indenture under this Article shall constitute a reaffirmation by such Subsidiary
Guarantor of its Subsidiary Guarantee.
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SECTION 11.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 11.6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE XII
COLLATERAL AND SECURITY
SECTION 12.1. Collateral and Security Documents.
(a) In order to secure the due and punctual payment of the principal
of and interest on the Securities of each series when and as the same shall be
due and payable, whether on an Interest Payment Date, Maturity Date, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest (to the extent permitted by law), if any, on the Securities of each
series and the performance of all other obligations of the Company to the
Holders or the Trustee under this Indenture and the Securities of each series
(the "Company Obligations"), the Company and the Trustee have simultaneously
with the execution of this Indenture entered into the Company Security Agreement
and a certain Mortgage pursuant to which the Company has granted to the Trustee,
in its capacity as Collateral Agent, for the benefit of the Holders of
Securities of each series, a first priority Lien on and security interest in the
Collateral described therein, subject to the exceptions permitted by Section
6.10. Each Subsidiary of the Company on the date of the Indenture, by executing
this Indenture, shall Guarantee the Company Obligations. The Company shall
cause each Person which becomes a Recourse Subsidiary of the Company after the
date of this Indenture to become a party to this Indenture as a Subsidiary
Guarantor on the date such Person becomes a Recourse Subsidiary. On the date of
this Indenture, each Subsidiary of the Company which holds real property
constituting part of the Mortgaged Facility or which owns any Integral Fixtures
and Equipment shall enter into a Subsidiary Security Agreement and a Mortgage to
secure its obligations under its Subsidiary Guarantee, pursuant to which such
Subsidiary has granted to the Trustee, in its capacity as Collateral Agent, for
the benefit of the Holders of Securities of each series a first priority Lien on
and security interest in the Collateral described in such Subsidiary Security
Agreement and Mortgage, subject to the exceptions permitted by Section 6.10.
Subsequent to the date of this Indenture, the Company and its Subsidiaries (with
the
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exception of Non-Recourse Subsidiaries) shall execute, as soon as practicable,
any further security agreements (substantially in the form of the Company
Security Agreement or the Subsidiary Security Agreement, as the case may be),
mortgages, or other agreements necessary and take such other actions as
necessary to create and maintain an effective security interest in the Mortgaged
Facility, all Integral Fixtures and Equipment and all proceeds and products of
any and all of the foregoing.
The Trustee, the Company and the Subsidiary Guarantors hereby agree
that the Trustee holds the Collateral in trust for the benefit of the Holders of
Securities of each series pursuant to the terms of the Security Documents.
(b) The Trustee is authorized and directed by the Holders of
Securities of each series to enter into and comply with the provisions of the
Intercreditor Agreement. Compliance with the Intercreditor Agreement shall in no
event serve as the basis for any claim by the Company or any other party having
an interest in the Collateral that the Collateral was not sold or otherwise
disposed of in a commercially reasonable manner. The Trustee is authorized to
execute and deliver the documents referred to in Section 2(c) of the
Intercreditor Agreement upon receipt of such documents and an Officer's
Certificate and an Opinion of Counsel, each to the effect that such documents
comply with the requirements of the Intercreditor Agreement and the conditions
contained herein with respect to the execution of such documents have been
complied with and that such documents do not release property subject to the
Lien of this Indenture or the Security Documents in contravention of the
provisions of this Indenture or such Security Documents.
(c) Each Holder, by accepting a Security, agrees to all of the terms
and provisions of the Security Documents, as the same may be amended from time
to time pursuant to the provisions of the Security Documents and this Indenture.
SECTION 12.2. Recording and Opinions.
(a) The Company and its Subsidiaries as soon as practicable shall
take or cause to be taken all action required to perfect, maintain, preserve and
protect the first priority Lien on and security interest in the Collateral,
subject to the exceptions set forth in Section 6.10, granted by the Security
Documents, including without limitation, the filing of financing statements,
continuation statements and any instruments of further assurance, in such manner
and in such places as may be required by law fully to preserve and protect the
rights of the Holders and the Trustee under this Indenture and the Security
Documents to all property now and hereafter comprising the Collateral. The
Company shall from time to time promptly pay all financing and continuation
statement recording and/or filing fees, charges and taxes relating to this
Indenture and the Security Documents, any amendments thereto and any other
instruments of further assurance required pursuant to the Security Documents.
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(b) The Company shall furnish to the Trustee promptly after the time
of execution and delivery of this Indenture, Opinion(s) of Counsel either (i)
substantially to the effect that, in the opinion of such Counsel, this Indenture
and the grant of a security interest in the Collateral intended to be made by
the Security Documents and all other instruments of further assurance,
including, without limitation, financing statements, have been properly recorded
and filed to the extent necessary to perfect the security interests in the
Collateral created by the Security Documents and reciting the details of such
action, and stating that as to the security interests created pursuant to the
Security Documents, such recordings and filings are the only recordings and
filings necessary to give notice thereof and that no re-recordings or refilings
are necessary to maintain such notice (other than as stated in such opinion) or
(ii) to the effect that, in the opinion of such counsel, no such action is
necessary to perfect such security interests. To the extent not required by the
preceding sentence, the Company shall deliver the opinion(s) required by Section
314(b) of the Trust Indenture Act. Subsequent to the date of this Indenture, at
the time of the execution of any Security Document, Opinion(s) of Counsel with
respect to the identical matters set forth in this paragraph (ii) and an Opinion
of Counsel to the effect that the Security Documents executed on such date
constitute the legally valid, binding and enforceable obligation of the Company
or such Subsidiary, as the case may be, subject to acceptable bankruptcy and
similar exceptions, shall be delivered to the Trustee.
(c) The Company shall furnish to the Trustee on June 1 in each year,
beginning with June 1, 1999, an Opinion of Counsel, dated as of such date,
either (i)(A) stating that, in the opinion of such counsel, action has been
taken with respect to the recording, filing, re-recording and refiling of all
supplemental indentures, financing statements and continuation statements as is
necessary to maintain the Lien of the Security Documents and reciting with
respect to the security interests in the Collateral the details of such action
or referring to prior Opinions of Counsel in which such details are given, and
(B) stating that, based on relevant laws as in effect on the date of such
Opinion of Counsel, all financing statements and continuation statements have
been executed and filed that are necessary as of such date and during the
succeeding 12 months fully to maintain the security interest of the Holders and
the Trustee hereunder and under the Security Documents with respect to the
Collateral, or (ii) stating that, in the opinion of such Counsel, no such action
is necessary to maintain such Lien.
SECTION 12.3. Release of Collateral.
(a) The Trustee, in its capacity as Collateral Agent under the
Security Documents, shall not at any time release Collateral from the security
interest created by this Indenture and the Security Documents unless such
release is in accordance with the provisions of this Indenture and the Security
Documents.
(b) At any time when an Event of Default shall have occurred and be
continuing, no release of Collateral pursuant to the provisions of this
Indenture and the
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Security Documents shall be effective as against the Holders of the Securities
of any series.
(c) The release of any Collateral from the terms of the Security
Documents shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released in accordance with this Indenture and the Security Documents. To the
extent applicable, the Company shall cause Section 314(d) of the Trust Indenture
Act relating to the release of property from the Lien of the Security Documents
and relating to the substitution therefor of any property to be subjected to the
Lien of the Security Documents to be complied with. Any certificate or opinion
required by Section 314(d) of the Trust Indenture Act may be made by a
Responsible Officer of the Company, except in cases where Section 314(d) of the
Trust Indenture Act requires that such certificate or opinion be made by an
Independent Person, which Person shall be an independent engineer, or other
expert selected or approved by the Trustee in the exercise of reasonable care.
SECTION 12.4. Possession and Use of Collateral.
Subject to and in accordance with the provisions of this Indenture and
the Security Documents, so long as no Event of Default shall have occurred and
be continuing the Company and its Subsidiaries shall have the right to remain in
possession and retain exclusive control of the Collateral other than Trust
Moneys held by the Trustee, to operate, manage, develop, lease, use, consume and
enjoy the Collateral (other than Trust Moneys and other personal property held
by, or required to be deposited or pledged with, the Collateral Agent under the
Indenture or any Security Document), to alter or repair any Collateral
consisting of vehicles, machinery or equipment so long as such alterations and
repairs do not diminish the value thereof or impair the Lien of the Security
Documents thereon and to collect, receive, use, invest and dispose of the
reversions, remainders, interest, rents, lease payments, issues, profits,
revenues, proceeds and other income thereof.
SECTION 12.5. Specified Releases of Collateral.
(a) Satisfaction and Discharge; Defeasance. The Company and its
Subsidiaries shall be entitled to obtain a full release of all of the Collateral
from the Liens of this Indenture and of the Security Documents upon compliance
with the conditions precedent set forth in Article IV for satisfaction and
discharge of this Indenture or for legal defeasance of the Outstanding
Securities of all series pursuant to Section 14.2. Upon delivery by the Company
to the Trustee of an Officers' Certificate and Opinion of Counsel, each to the
effect that such conditions precedent have been complied with (and which may be
the same Officers' Certificate and Opinion of Counsel required by Section 4.1 or
14.4), the Trustee shall forthwith take all necessary action (at the request of
and the expense of the Company) to release and reconvey to the Company all of
the Collateral, and shall deliver such Collateral in its possession to the
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Company including, without limitation, the execution and delivery of releases
and satisfactions whenever required.
(b) Sales of Collateral Permitted by Section 6.15. The Company shall
be entitled to obtain a release of items of Collateral (the "Released
Interests") subject to an Asset Sale upon compliance with the condition
precedent that the Company shall have delivered to the Trustee the following:
(i) Company Order. A Company Order requesting release of
Released Interests, such Company Order (A) specifically describing the
proposed Released Interests, (B) specifying the fair market value of such
Released Interests on a date within 60 days of the Company Order (the
"Valuation Date"), (C) stating that the purchase price received is at least
equal to the fair value of the Released Interest, (D) stating that the
release of such Released Interests is not anticipated to have a material
adverse effect on the financial condition, results of operations, business
or prospects of the Company and its Subsidiaries taken as a whole, taking
into account the planned use of proceeds from the sale of such Released
Interests, (E) confirming the sale of, or an agreement to sell, such
Released Interests in a bona fide sale to a Person that is not an Affiliate
of the Company or, in the event that such sale is to a Person that is an
Affiliate, that such sale is being made in accordance with Section 6.14,
(F) certifying that such Asset Sale complies with the terms and conditions
of Section 6.15 hereof and (G) in the event that there is to be a
substitution of property for the Collateral to be sold, specifying the
property intended to be substituted for the Collateral to be sold;
(ii) Officers' Certificate. An Officers' Certificate certifying
that (A) such Asset Sale covers only the Released Interests and complies
with the terms and conditions of an Asset Sale pursuant to Section 6.15,
(B) all Net Cash Proceeds from the sale of any of the Released Interests
constitutes Collateral and will be deposited in the Collateral Account for
application in accordance with Section 6.15, (C) there is no Default or
Event of Default in effect or continuing on the date thereof, the Valuation
Date or the date of such Asset Sale, (D) the release of the Collateral will
not result in a Default or Event of Default hereunder and (E) all
conditions precedent to such release have been complied with; and
(iii) Other Documents. All other documentation, if any,
required by Section 314(d) of the Trust Indenture Act.
(c) Eminent Domain and Other Governmental Takings. The Company shall
be entitled to obtain a release of, and the Trustee shall release, items of
Collateral taken by eminent domain or sold pursuant to the exercise by the
United States of America or any State, municipality, other governmental
authority or private Person holding the power of eminent domain of any right
which it may then have to purchase, or to designate a purchaser or to
order a sale of, all or any part of the Collateral, upon
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compliance with the condition precedent that the Company shall have delivered to
the Trustee the following:
(i) Officer's Certificate. An Officer's Certificate (A) stating
that such property has been taken by eminent domain and the amount of the
award therefor, or that such property has been sold pursuant to a right
vested in the United States of America, or a State, municipality, other
governmental authority or private Person holding the power of eminent
domain to purchase, or to designate a purchaser, or order a sale of such
property and the amount of the proceeds of such sale, and (B) stating that
all conditions precedent to such release have been complied with;
(ii) Opinion of Counsel. An Opinion of Counsel, subject to
reasonable qualifications and assumptions, to the effect that (A) such
property has been lawfully taken by exercise of the right of eminent
domain, or has been sold pursuant to the exercise of a right vested in the
United States of America or a State, municipality, other governmental
authority or private Person holding the power of eminent domain to
purchase, or to designate a purchaser or order a sale of, such property,
(B) in the case of any such taking by eminent domain, the award for such
property has become final or an appeal therefrom is not advisable in the
interests of the Company or the Holders, and (C) all conditions precedent
herein provided relating to such release have been complied with; and
(iii) Eminent Domain Award. Subject to the requirements of
any prior Lien on the Collateral so taken, cash equal to the amount of the
award for such property or the proceeds of such sale, to be held as Trust
Moneys subject to the disposition thereof pursuant to Article XIII hereof.
(d) Released Property. The Company shall be entitled to obtain a
release of items of Collateral that upon such release will constitute the
Released Property upon compliance with the condition precedent that the Company
shall have delivered to the Trustee the following:
(i) Company Order. A Company Order requesting release of such
Collateral, such Company Order (A) specifically describing the proposed
Collateral to be released, (B) stating that such Collateral is not used or
necessary in the ordinary course of business of the Company or any of its
Recourse Subsidiaries, (C) stating that such Collateral will, upon such
release, meet the definition of Released Property and (D) confirming the
Company's intention to contribute such Collateral to a Non-Recourse
Subsidiary in exchange for an equity interest therein;
(ii) Officers' Certificate. An Officers' Certificate certifying
that (A) such Collateral will, upon such release, meet the definition of
Released Property, (B) there is no Default or Event of Default in effect or
continuing on the date thereof,
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(C) the release of such Collateral will not result in a Default or Event of
Default hereunder and (D) all conditions precedent to such release have
been complied with; and
(iii) Other Documents. All other documentation, if any,
required by Section 314(d) of the Trust Indenture Act.
Upon compliance by the Company with the conditions precedent set forth
above, and upon delivery by the Company to the Trustee of an Opinion of Counsel
to the effect that such deliveries have been made to the Trustee, the Trustee
shall cause to be released and reconveyed to the Company, the Collateral
proposed to be released. At the Company's expense and reasonable request, the
Trustee shall cooperate with any resubdivision of the Company's property deemed
desirable by the Company to effect the release and subsequent development of the
Released Property in accordance with Section 6.27; provided, however, that the
Trustee shall not be required to cooperate with any such actions which could
reasonably be expected to have a material adverse effect on the remainder of the
Collateral (it being expressly agreed that the release of the Released Property
will not, in and of itself, have such a material adverse effect).
SECTION 12.6. Disposition of Collateral Without Release.
So long as no Event of Default shall have occurred and be continuing,
the Company or any of its Subsidiaries may, without any release or consent by
the Collateral Agent or the Trustee, sell or otherwise dispose of any Obsolete
Assets subject to the Lien of the Security Documents, in an aggregate amount not
to exceed, in fair market value, $2,000,000 in any year.
SECTION 12.7. Form and Sufficiency of Release.
In the event that the Company or any of its Subsidiaries have sold,
exchanged or otherwise disposed of or proposes to sell, exchange or otherwise
dispose of any portion of the Collateral that under the provisions of Section
12.5 or 12.6 may be sold, exchanged or otherwise disposed of by the Company or
its Subsidiary, and the Company or its Subsidiary requests the Trustee to
furnish a written disclaimer, release or quit-claim of any interest in such
property under this Indenture and the Security Documents, the Trustee, in its
capacity as Collateral Agent under the Security Documents, shall execute,
acknowledge and deliver to the Company or its Subsidiary (in proper and
recordable form) such an instrument promptly after satisfaction of the
conditions set forth herein for delivery of any such release. Notwithstanding
the preceding sentence, all purchasers and grantees of any property or rights
purporting to be released herefrom shall be entitled to rely upon any release
executed by the Trustee hereunder as sufficient for the purpose of this
Indenture and as constituting a good and valid release of the property therein
described from the Lien of this Indenture or of the Security Documents.
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SECTION 12.8. Purchaser Protected.
No purchaser or grantee of any property or rights purporting to be
released herefrom shall be bound to ascertain the authority of the Trustee to
execute the release or to inquire as to the existence of any conditions herein
prescribed for the exercise of such authority; nor shall any purchaser or
grantee of any property or rights permitted by this Indenture to be sold or
otherwise disposed of by the Company or any of its Subsidiaries be under any
obligation to ascertain or inquire into the authority of the Company or its
Subsidiary to make such sale or other disposition.
SECTION 12.9. Authorization of Actions To Be Taken by The Trustee Under the
Security Documents.
Subject to the provisions of the Security Documents, (a) the Trustee
may, in its sole discretion and without the consent of the Holders, take all
actions it deems necessary or appropriate in order to (i) enforce any of the
terms of the Security Documents and (ii) to collect and receive any and all
amounts payable in respect of the obligations of the Company hereunder or of the
Subsidiaries of the Company under the relevant Subsidiary Guarantee and (b) the
Trustee shall have power to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by any acts
that may be unlawful or in violation of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including the power to institute and maintain suits or proceedings
to restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest thereunder or be prejudicial to the interests
of the Holders or of the Trustee).
SECTION 12.10. Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of
Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders in accordance with the provisions of
Article XIII and the other provisions of this Indenture.
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ARTICLE XIII
APPLICATION OF TRUST MONEYS
SECTION 13.1. Collateral Account.
On the date of this Indenture there shall be established and, at all
times hereafter until this Indenture shall have terminated, there shall be
maintained with the Trustee an account which shall be entitled the "Collateral
Account" (the "Collateral Account"). The Collateral Account shall be
established and maintained by the Trustee at its corporate trust offices. All
Trust Moneys which are received by the Trustee shall be deposited in the
Collateral Account and thereafter shall be held, applied and/or disbursed by the
Trustee in accordance with the terms of this Article.
SECTION 13.2. Withdrawals of Insurance Proceeds and Condemnation Awards.
To the extent that any Trust Moneys consist of either (i) Net
Insurance Proceeds or (ii) Condemnation Awards, such Trust Moneys may be
withdrawn by the Company (or by a Subsidiary of the Company if title to the
property damaged or taken was held by such Subsidiary, but only to the extent of
the Net Insurance Proceeds or Condemnation Proceeds relating thereto) and shall
be paid by the Trustee upon a Company Order to reimburse the Company or its
Subsidiary for expenditures made, or to pay costs incurred, by the Company or
its Subsidiary to repair, rebuild or replace the property destroyed, damaged or
taken, upon receipt by the Trustee of the following:
(a) an Officers' Certificate of the Company or its Subsidiary, dated
not more than 30 days prior to the date of the application for the
withdrawal and payment of such Trust Moneys:
(i) that expenditures have been made or costs incurred, by
the Company or its Subsidiary in a specified amount for the purpose of
making certain repairs, rebuildings and replacements of the
Collateral, which shall be briefly described, and stating the fair
value thereof to the Company or its Subsidiary at the date of the
expenditure or incurrence thereof by the Company or its Subsidiary;
(ii) that no part of such expenditures or costs has been or
is being made the basis for the withdrawal of any Trust Moneys in any
previous or then pending application pursuant to this Section 13.2;
(iii) that the property to be repaired, rebuilt or
replaced is necessary or desirable in the conduct of the Company's or
its Subsidiary's business; and
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(iv) that no Default or Event of Default shall have occurred
and be continuing;
(b) all documentation, if any, required under Section 314(d) of the
Trust Indenture Act; and
(c) an Opinion of Counsel substantially stating that the instruments
that have been or are therewith delivered to the Trustee conform to the
requirements of this Indenture and the Security Documents, and that, upon
the basis of such request of the Company or its Subsidiary and the
accompanying documents specified in this Section 13.2, all conditions
precedent herein provided for relating to such withdrawal and payment have
been complied with, and the Trust Moneys whose withdrawal is then requested
may be lawfully paid over under this Section 13.2.
Upon compliance with the foregoing provisions of this Section 13.2,
the Trustee shall pay on the written request of the Company or its Subsidiary an
amount of Trust Moneys of the character aforesaid equal to the amount of the
expenditures or costs stated in the Officers' Certificate required by clause (i)
of subsection (a) of this Section 13.2, or the fair value to the Company or its
Subsidiary of such repairs, rebuildings and replacements stated in such
Officers' Certificate (or in such Independent Appraiser's or Independent
Financial Advisor's certificate, if required by the Trust Indenture Act),
whichever is less; provided, however, that notwithstanding the above, so long as
no Default or Event of Default shall have occurred and be continuing, in the
event that any Net Insurance Proceeds or Condemnation Award for such property or
proceeds of such sale does not exceed the lesser of $25,000 or 1% of the
principal amount of the Outstanding Securities, and, in the good faith estimate
of the Company, such destruction or damage resulting in such Net Insurance
Proceeds or Condemnation Award does not detrimentally affect the value or use of
the applicable Collateral in any material respect, upon delivery to the Trustee
of an Officers' Certificate of the Company or its Subsidiary to such effect, the
Trustee shall release to the Company or its Subsidiary such Net Insurance
Proceeds or Condemnation Award for such property or proceeds of such sale, free
of the Lien hereof and of the Security Documents.
SECTION 13.3. Withdrawal of Trust Moneys for Asset Sale Offer.
Except to the extent of Trust Moneys consisting of the proceeds from
the sale of Securities of any series, Condemnation Awards or Net Insurance
Proceeds, Trust Moneys may be withdrawn by the Company and shall be paid by the
Trustee to the Company (or as otherwise directed by the Company) upon a Company
Order to the Trustee and upon receipt by the Trustee of the following:
(a) an Officers' Certificate, dated not more than five days prior to
the Asset Sale Payment Date stating:
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(i) that no Event of Default exists;
(ii) (A) that pursuant to and in accordance with Section
6.15, the Company has made an Asset Sale Offer, (B) the amount of
money to be applied to the repurchase of Securities pursuant to the
Asset Sale Offer, and (C) the amount of money to be retained by the
Company;
(iii) the Asset Sale Payment Date; and
(iv) that all conditions precedent and covenants herein
provided for relating to such application of Trust Moneys have been
complied with; and
(b) all documentation, if any, required under Section 314(d) of the
Trust Indenture Act; and
(c) an Opinion of Counsel stating that the documents that have been
or are therewith delivered to the Trustee in connection with the Asset Sale
Offer pursuant to this Section 13.3 conform to the requirements of this
Indenture and that all conditions precedent herein provided for relating to
such application of Trust Moneys have been complied with.
Upon compliance with the foregoing provisions of this Section 13.3,
the Trustee shall apply the Trust Moneys as directed and specified by such
Company Order.
SECTION 13.4. Withdrawal of Trust Moneys for Permitted Related Acquisitions.
In the event the Company (or a Subsidiary of the Company if such
Subsidiary has engaged in the Asset Sale) intends to reinvest Net Cash Proceeds
of an Asset Sale in a manner that would constitute a Permitted Related
Acquisition (the "Released Trust Moneys"), such Net Cash Proceeds constituting
Trust Moneys may be withdrawn by the Company (or, to the extent that the legal
title to the property transferred in an Asset Sale is held by a Subsidiary, by
such Subsidiary; provided, that the aggregate cost of the Permitted Related
Acquisitions to be made by such Subsidiary shall not exceed the Net Cash
Proceeds of such Asset Sale unless such excess is paid for by the Subsidiary
with funds other than Released Trust Moneys) and shall be paid by the Trustee to
the Company or its Subsidiary (or as otherwise directed by the Company or its
Subsidiary) upon a Company Order to the Trustee and upon receipt by the Trustee
of the following:
(a) A notice (each, a "Trust Moneys Release Notice"), which shall (i)
refer to this Section 13.4, (ii) contain all documents referred to below,
(iii) state the amount of the Released Trust Moneys and (iv) describe with
particularity the
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Permitted Related Acquisition to be made with respect to the Released Trust
Moneys;
(b) An Officer's Certificate certifying that (i) the release of the
Released Trust Moneys complies with the terms and conditions of Section
6.15 of this Indenture, (ii) there is no Default or Event of Default in
effect or continuing on the date thereof, (iii) the release of the Released
Trust Moneys will not result in a Default or Event of Default hereunder and
(iv) all conditions precedent to such release have been complied with;
(c) All other documentation, if any, required under Section 314(d) of
the Trust Indenture Act; and
(d) An Opinion of Counsel stating that the documents that have been
or are therewith delivered to the Collateral Agent and the Trustee in
connection with a Permitted Related Acquisition conform to the requirements
of this Indenture and that all conditions precedent herein provided for
relating to such application of Trust Moneys have been complied with.
Upon compliance with the foregoing provisions of this Indenture, the
Trustee shall apply the Released Trust Moneys as directed and specified by the
Company or its Subsidiary.
SECTION 13.5. Withdrawal of Trust Moneys for Retention by the Company or its
Subsidiaries.
To the extent that any Trust Moneys consist of Net Cash Proceeds
received by the Trustee pursuant to the provisions of Section 6.15 (including
Asset Sales relating to Obsolete Assets), and the Company (or a Subsidiary of
the Company if such Subsidiary has engaged in an Asset Sale, including an Asset
Sale relating to Obsolete Assets) intends to retain, subject to the limitations
set forth in Section 6.15, all or a portion of such Net Cash Proceeds (the
"Retained Trust Moneys"), such Trust Moneys may be withdrawn by the Company or
its Subsidiary and shall be paid by the Trustee to the Company or its Subsidiary
(or as otherwise directed by the Company or its Subsidiary) upon a Company Order
to the Trustee and upon receipt by the Trustee of the following:
(a) A notice (each, a "Withdrawal Notice"), which shall (i) refer to
this Section 13.5, (ii) contain all documents referred to below and (iii)
describe with particularity the Retained Trust Moneys and the Asset Sale
from which such Retained Trust Moneys were held as Collateral;
(b) An Officer's Certificate certifying that (i) the release of the
Retained Trust Moneys complies with the terms and conditions of Section
6.15 of the Indenture, (ii) there is no Default or Event of Default in
effect or continuing on
116
the date thereof, (iii) the release of the Retained Trust Moneys will not
result in a Default or Event of Default hereunder and (iv) all conditions
precedent to such release have been complied with;
(c) All other documentation, if any, required under Section 314(d) of
the Trust Indenture Act; and
(d) An Opinion of Counsel stating that the documents that have been
or are therewith delivered to the Collateral Agent and the Trustee in
connection with a release of Retained Trust Moneys conform to the
requirements of this Indenture and that all conditions precedent herein
provided for relating to such application of Trust Moneys have been
complied with.
Upon compliance with the foregoing provisions of this Indenture, the
Trustee shall apply the Retained Trust Moneys as directed and specified by the
Company or its Subsidiary.
SECTION 13.6. Withdrawals of Proceeds from Certain Sales of Securities.
To the extent that any Trust Moneys consist of proceeds form the sale
of Securities deposited in the Collateral Account pursuant to Section 6.9, such
Trust Moneys may be withdrawn by the Company or by a Recourse Subsidiary of the
Company and shall be paid by the Trustee upon a Company Order to reimburse the
Company or its Recourse Subsidiary for expenditures made, or to pay costs
incurred, by the Company or its Recourse Subsidiary to finance improvements to
the Mortgaged Facility, upon receipt by the Trustee of the following:
(a) an Officers' Certificate of the Company or its Recourse
Subsidiary, dated not more than 30 days prior to the date of the
application for the withdrawal and payment of such Trust Moneys:
(i) that expenditures have been made or costs incurred, by
the Company or its Subsidiary in a specified amount for the purpose of
financing the construction of improvements to to the Mortgaged
Facility (including the acquisition of Fixtures and Equipment);
(ii) that no part of such expenditures or costs has been or
is being made the basis for the withdrawal of any Trust Moneys in any
previous or then pending application pursuant to this Section 13.6;
(iii) that the Mortgaged Facility improvements to be
constructed are intended to add supplemental production, handling or
performance capacity to the then existing Mortgaged Facility,
including through the acquisition of Fixtures and Equipment (except
that such Officers' Certificate may state that a portion of the
planned construction is intended
117
to replace existing improvements and Fixtures and Equipment to the
extent ancillary to such construction); and
(iv) that no Default or Event of Default shall have occurred
and be continuing;
(b) all other documentation, if any, required under Section 314(d) of
the Trust Indenture Act; and
(c) an Opinion of Counsel substantially stating that the instruments
that have been or are therewith delivered to the Trustee conform to the
requirements of this Indenture and the Security Documents, and that, upon
the basis of such request of the Company or its Subsidiary and the
accompanying documents specified in this Section 13.6, all conditions
precedent herein provided for relating to such withdrawal and payment have
been complied with, and the Trust Moneys whose withdrawal is then requested
may be lawfully paid over under this Section 13.6.
Upon compliance with the foregoing provisions of this Section 13.6,
the Trustee shall pay on the written request of the Company or its Recourse
Subsidiary an amount of Trust Moneys of the character aforesaid equal to the
amount of the expenditures or costs stated in the Officers' Certificate required
by clause (i) of subsection (a) of this Section 13.6.
SECTION 13.7. Investment of Trust Moneys.
All or any part of any Trust Moneys held by the Trustee shall from
time to time be invested or reinvested by the Trustee in any Cash Equivalents
pursuant to the written direction of the Company, which shall specify the Cash
Equivalents in which such Trust Moneys shall be invested. Unless an Event of
Default occurs and is continuing, any interest in such Cash Equivalents (in
excess of any accrued interest paid at the time of purchase) that may be
received by the Trustee shall be forthwith paid to the Company. Such Cash
Equivalents shall be held by the Trustee as a part of the Collateral, subject to
the same provisions hereof as the cash used by it to purchase such Cash
Equivalents.
The Trustee shall not be liable or responsible for any loss resulting
from such investments or sales except only for its own grossly negligent action,
its own grossly negligent failure to act or its own willful misconduct in
complying with this Section 13.7.
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ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.1. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 14.2 or Section 14.3 applied to the Outstanding
Securities of any series upon compliance with the applicable conditions set
forth below in this Article XIV.
SECTION 14.2. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 14.1
applicable to this Section 14.2 with respect to the Securities of any series,
the Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series (other than those specified
in the next sentence) on the date the applicable conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 14.4 and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Securities when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 3.4, 3.5, 3.6, 6.2 and 6.26 and
with respect to the Trustee under Section 9.7, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article XIV.
Subject to compliance with the applicable conditions under this Article XIV, the
Company may exercise its option under this Section 14.2 notwithstanding the
prior exercise of its option under Section 14.3.
SECTION 14.3. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 14.1
applicable to this Section 14.3 with respect to the Securities of any series,
(i) the Company shall be released from its obligations with respect to such
Securities under Sections 6.9 through 6.25 and Section 6.27 and (ii) the
occurrence of an event specified in Section 8.1(iv) with respect to such
Securities (with respect to any of Section 6.9 through 6.25 and Section 6.27),
8.1(v) and (vi)) shall not be deemed to be an Event of Default (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section, whether
directly, or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section, insofar as any suuch
term, condition or limitation relates to the Securities of such series to any
other provision herein or in any other document, but the remainder of this
Indenture with respect to the Securities of such
119
series, the Indenture as it relates to the Securities of any other series, and
the Securities of any other series shall be unaffected thereby.
SECTION 14.4. Conditions to Defeasance or Covenant Defeasance.
Except as otherwise indicated below, the following shall be the
conditions to application of either Section 14.2 or Section 14.3 to the then
Outstanding Securities of any series:
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company shall irrevocably have deposited or caused to be
deposited in trust with the Trustee (or another trustee satisfying the
requirements of Section 9.9 who shall agree to comply with the provisions
of this Article applicable to the Trustee) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of Securities of
such series, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount sufficient to pay
the principal of and each installment of interest on the Securities of such
series on the Maturity Date of such principal or Interest Payment Date, as
the case may be, in accordance with the terms of this Indenture and the
Securities of such series, or (C) a combination of (A) and (B);
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent certified public accountants
expressing their opinion that the payments of principal and interest when
due and without reinvestment of the deposited U.S. Government Obligations
plus any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Securities of such series to maturity or redemption, as
the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Event of Default or Default relating to bankruptcy and insolvency
events with respect to the Company occurs which is continuing at the end of
the period;
(4) no Event of Default or Default with respect to the Securities of
such series has occurred and is continuing on the date of such deposit and
after giving effect thereto;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that (i) the trust resulting from the deposit does not constitute,
or is
120
qualified as, a regulated investment company under the Investment Company
Act of 1940, (ii) the Holders of Securities of such series have a valid
first priority perfected security interest in the trust funds, and (iii)
after passage of 91 days following the deposit (except, with respect to any
trust funds for the account of any Holder of Securities of such series who
may be deemed to be an "insider" for purposes of the Bankruptcy Code, after
one year following the deposit), the trust funds will not be subject to the
effect of Section 547 of the Bankruptcy Law or Section 15 of the New York
Debtor and Creditor Law in a case commenced by or against the Company under
either such statute, and either (A) the trust funds will no longer remain
the property of the Company (and therefore, will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally) or (B) if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Company, (x) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not paid
to Holders of Securities of such series, the Trustee will hold, for the
benefit of the Holders of Securities of such series, a valid first priority
perfected security interest in such trust funds that is not avoidable in
bankruptcy or otherwise except for the effect of Section 552(b) of the
Bankruptcy Law on interest on the trust funds accruing after the
commencement of a case under such statute and (y) the Holders of Securities
of such series will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such case or
proceeding;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of the Indenture there has
been a change in the applicable U.S. Federal income tax law or a regulation
clarifying existing law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of
Securities of such series will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such defeasance and will be
subject to U.S. Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had
not occurred;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities of such series will not recognize income, gain or
loss for U.S. Federal income tax purposes as a result of such covenant
defeasance and will be subject to U.S. 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;
121
(8) such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest as defined in Section 9.8 and for purposes
of the Trust Indenture Act with respect to any securities of the Company;
(9) such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute default under, any other agreement or
instrument to which the Company is a party or by which it is bound; and
(10) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities of such series
have been complied with.
SECTION 14.5. Deposited Money and U.S. Government Obligations to be held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 6.26, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 14.5 and Section 14.6, the "Trustee") pursuant to Section 14.4 in
respect of the Securities of any series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and interest.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 14.4 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 Securities of such series.
Anything in this Article XIV to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 14.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
The provisions of the last paragraph of Section 6.26 shall apply to
any money held by the Trustee or any Paying Agent under this Article XIV that
remains unclaimed for two years after the Maturity Date of the applicable series
of Securities for which money or Government Obligations have been deposited
pursuant to Section 14.4.
122
SECTION 14.6. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 14.5 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 Indenture and any
applicable series of Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
14.5; provided, however, that if the Company makes any payment of principal of
or interest on any Security following the reinstatement of the Company's
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
ARTICLE XV
INTERVENTION
SECTION 15.1. Intervention.
(a) The Company's Wholly-Owned Subsidiaries, River Road Realty
Corporation and Bayou Steel Corporation (Tennessee), hereby (i) intervene in
this Indenture in furtherance of the purposes hereof and in the Security
Documents to which each is a party and (ii) agree with and for the benefit of
the Trustee to the terms and provisions set forth in Annex A hereto, which terms
and provisions shall be incorporated by reference herein as if set forth herein.
(b) The Trustee hereby accepts and agrees to clause (ii) of paragraph
(a) above.
______________________
THUS DONE AND PASSED in multiple originals, on the date first above
written, at New Orleans, Louisiana, in the presence of the undersigned competent
witnesses, and of the undersigned Notary Public, after due reading of the whole.
WITNESSES TO ALL BAYOU STEEL CORPORATION
SIGNATURES:
/S/ MARGARET M. LANDRY BY: /S/ RICHARD J. GONZALEZ
- ---------------------- -----------------------
PRINTED NAME: PRINTED NAME:
--------------------- ---------------------
TITLE:
----------------------------
RIVER ROAD REALTY CORPORATION
/S/ MARGARET M. LANDRY BY: /S/ RICHARD J. GONZALEZ
- ---------------------- -----------------------
PRINTED NAME: PRINTED NAME:
--------------------- ---------------------
TITLE:
----------------------------
BAYOU STEEL CORPORATION
(TENNESSEE)
/S/ MARGARET M. LANDRY BY: /S/ RICHARD J. GONZALEZ
- ---------------------- -----------------------
PRINTED NAME: PRINTED NAME:
--------------------- ---------------------
TITLE:
----------------------------
FIRST NATIONAL BANK OF COMMERCE,
AS TRUSTEE
/S/ MARGARET M. LANDRY BY: /S/DENIS L. MILLINER
- ---------------------- --------------------
PRINTED NAME: PRINTED NAME:
--------------------- ---------------------
TITLE:
----------------------------
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No. Principal Amount $[______________]
CUSIP NO. ____________
BAYOU STEEL CORPORATION
[__]% First Mortgage Note due 200[ ]
Bayou Steel Corporation, a Delaware corporation promises to pay to
[___________], or registered assigns, the principal sum of [__________________]
Dollars on [________], 200[ ].
Interest Payment Dates: [______________].
Record Dates: [______________].
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: BAYOU STEEL CORPORATION
By:
--------------------------------
Attest by:
-------------------------
2
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
FIRST NATIONAL BANK OF COMMERCE
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By
---------------------------------
Authorized Signatory [DATE]
[FORM OF REVERSE SIDE OF INITIAL NOTE]
[__]% First Mortgage Note due 200[ ]
1. Interest
Bayou Steel Corporation, a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above.
The Company will pay interest semiannually on [_________] and
[________] of each year. Interest on this Security will accrue from the most
recent date to which interest has been paid on this Security or, if no interest
has been paid, from [ISSUE DATE]. The Company shall pay interest on overdue
principal (plus interest on such interest to the extent lawful), at the rate
borne by this Security 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 principal of and interest on this Security shall be payable at the
office or agency of the Paying Agent in The City of New Orleans, maintained for
such purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
further, that a Holder of $10,000,000 in aggregate principal amount of
Securities of any series shall be entitled to receive payments of interest by
wire transfer in immediately available funds (but only if appropriate payment
instructions have been received in writing by the Paying Agent not less than 15
calendar days prior to the applicable Interest Payment Date).
3. Paying Agent and Security Registrar
Initially, First National Bank of Commerce, a national banking
association ("Trustee"), will act as Paying Agent and Security Registrar. The
Company may appoint and change any Paying Agent without notice to any Holder.
The Company may act as Paying Agent.
4. Indenture
The Company issued this Security under an Indenture dated as of May
22, 1998 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), among the Company and the Trustee.
The terms of this Security include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
(S)(S) 77aaa-77bbbb) as in effect from time to time (the "Act"). Capitalized
terms used herein and not defined herein
2
have the meanings ascribed thereto in the Indenture. This Security is subject to
all such terms, and the Holder of this Security is referred to the Indenture and
the Act for a statement of those terms.
The Securities are senior secured obligation of the Company. This
Security is one of the [1998] Initial Notes referred to in the Indenture. The
[1998] Initial Notes and the [1998] Exchange Notes are treated as a single
series of Securities under the Indenture. The Indenture imposes certain
limitations on, among other things, the ability of the Company to incur
additional Indebtedness; create Liens; make Restricted Payments; engage in
certain transactions with stockholders and Affiliates; engage in Sale and
Leaseback Transactions; dispose of assets; issue Preferred Stock of
Subsidiaries; transfer assets to its subsidiaries; enter into agreements that
restrict the ability of its Subsidiaries to make dividends and distributions;
engage in mergers, consolidations and transfers of substantially all of the
Company's assets; make certain Investments, loans, and advances; and create Non-
Recourse Subsidiaries. These limitations are subject to a number of important
qualifications and exceptions. The Company must report to the Trustee annually
its compliance with the limitations contained in the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
5. Mandatory Redemption
Upon a Change of Control, the Holder of this Security will have the
right to cause the Company to repurchase all or any part of this Security at a
purchase price in cash equal to 101% of the principal amount hereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to the
right of the Holder of record on the relevant record date to receive interest
due on the relevant interest payment date) as provided in, and subject to the
terms of, the Indenture.
Section 6.15 of the Indenture provides that after certain Asset Sales,
subject to certain limitations contained therein, the Company may be required to
make an offer to purchase all or a portion of this Security in accordance with
the procedures set forth in the Indenture.
6. Optional Redemption
[The Company, at its option, may redeem this Security, in whole or in
part, from time to time on and after [__________, 2003], at the redemption
prices set forth below (expressed as a percentage of the principal amount
thereof), in each case together with accrued interest, if any, to the date of
redemption, if redeemed during the twelve-month period beginning
[_______________] of the years indicated below:
3
Year Percentage
---- ----------
[2003] ___.__%
[2004] ___.__%
[2005] ___.__%
[2006] and thereafter 100.00%
provided that if the date fixed for redemption is [________] or [________], then
the interest payable on such date shall be paid to the Holder of record on the
next preceding [_________] or [__________].
Prior to [__________], 2001, the Company may, at its option, from time
to time, redeem up to 35% of the original aggregate principal amount of the 1998
Securities at a redemption price equal to ___% of the principal amount thereof,
together with accrued and unpaid interest, if any, to the date of redemption
with all or a portion of the net proceeds of public sales of common stock of the
Company; provided, that at least 65% of the original aggregate principal amount
of the 1998 Securities remains outstanding immediately after the occurrence of
such redemption; and provided, further, that such redemption shall occur within
60 days of the date of the closing of the related sale of common stock of the
Company.
At any time prior to [____________], 2003, the Company may, at its
option, redeem the 1998 Securities, in whole but not in part, upon the
occurrence of a Change of Control, at a redemption price equal to 100% of the
principal amount thereof, together with the Applicable Premium as of, and
accrued and unpaid interest, if any, to, the date of redemption.]
In the event that less than all of the Securities of any series are to
be redeemed, the Trustee shall select the Securities of such series to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities being redeemed are listed,
or, if the Securities are not listed on a national securities exchange, on a pro
rata basis, by lot or by such method as the Trustee shall deem fair and
appropriate; provided, that no Securities of $1,000 or less shall be redeemed in
whole or in part.
At least 30 days but not more than 60 days prior to a redemption date
(but, in the case of any redemption of this Security pursuant to a Change of
Control, in no event more than 90 days after the occurrence of such Change of
Control), the Company shall mail or cause the mailing of a notice of redemption
by first-class mail to the Holder of this Security at its registered address.
If this Security is to be redeemed in
4
part only, the notice of redemption shall state the portion of the principal
amount to be redeemed. A new Security in a principal amount equal to the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
cancellation of the original Security. On and after the redemption date,
interest will cease to accrue on this Security or the portion hereof called for
redemption unless the Company defaults in the payment of the redemption price or
accrued interest.
7. Senior Secured Obligations
The Securities are senior obligations of the Company, secured by a
first priority lien, subject to certain exceptions, on the Collateral owned by
it to the Collateral Agent for the benefit of the Holders pursuant to the
Indenture and the Security Documents. The Recourse Subsidiaries of the Company
shall, by executing the Indenture, guarantee the obligations of the Company with
respect to the Securities. The Securities will rank senior in right of payment
to all future subordinated indebtedness of the Company. The Subsidiary
Guarantees will be secured by the Collateral assigned by such Subsidiary
pursuant to a Subsidiary Security Agreement.
Each Holder, by accepting a Security, agrees to all of the terms and
provisions of the Security Documents, as the same may be amended from time to
time pursuant to the respective provisions thereof and the Indenture, and hereby
irrevocably appoints the Trustee as its special attorney-in-fact for the Holder
and vests the Trustee on behalf of the Holder with full power to act on such
Holder's behalf and enforce the Security Documents for the benefit of the
Holder.
The Trustee, the Collateral Agent and each Holder acknowledges that a
release of any of the Collateral or any Lien strictly in accordance with the
terms and provisions of the Indenture and Security Documents will not be deemed
for any purpose to be an impairment of the Security under the Indenture.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of principal amount of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture and the face of
this Security. The Company shall provide for the registration of Securities and
of transfers of Securities in the Security Register. The Security Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents. No service charge shall be made to the Holder of this
Security for any registration of transfer or exchange, but the Company may
require the payment of a sum sufficient to cover any transfer tax, assessments
or similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charges payable upon exchanges or
transfers pursuant to Section 11.6 of the Indenture). The Security Registrar
shall not be required to register the transfer of or exchange any Securities for
a period beginning (i) 15 Business Days before the mailing of a notice of an
offer to repurchase the
5
Securities of the same series as this Security and ending on the close of
business on the day of such mailing or (ii) 15 Business Days before an interest
payment date for this Security and ending on such interest payment date.
9. Persons Deemed Owners
The registered holder of this Security may be treated as the owner of
it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment as unsecured general creditors.
11. Defeasance
Subject to certain conditions set forth in the Indenture, the Company
at any time may terminate some or all of its obligations with respect to this
Security and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
series of Securities, of which this Security is a part, to maturity.
12. Supplemental Indentures, Amendment, Waiver
From time to time, the Company and the Subsidiary Guarantors when
authorized by a Board Resolution, and the Trustee (or the Collateral Agent, if a
party thereto), may, without the consent of any Holders, supplement the
Indenture, or amend or waive the Security Documents or the Securities of any
series for certain specified purposes, including, among other things, curing
ambiguities, defects, or inconsistences maintaining the qualification of the
Indenture under the Trust Indenture Act, making any change that does not
adversely affect the rights of any Holder of Securities of any series or
mortgaging, pledging, or granting a security interest in favor of the Collateral
Agent as additional security for the payment and performance of the obligations
of the Company under the Indenture, in any property or assets, including any
which are required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted, to the Collateral Agent pursuant to
any Security Document or otherwise, to establish the terms of Securities of any
series as permitted by Section 3.1(a) of the Indenture, to supplement any
provisions of the Indenture to such extent as shall be necessary to permit or
facilitate the issuance of the Securities of any series initially as securities
registered under the Securities Act; provided, that any such action shall not
adversely affect the interests of the Holders of any other series, or to add any
Person
6
who becomes a Recourse Subsidiary of the Company after the date of the Indenture
as a party to the Indenture.
Other amendments, modifications and supplements of the Indenture, the
Securities of any series or the Security Documents may be made by the Company,
the Collateral Agent (if a party thereto) and the Trustee with the consent of
the Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities of each series affected by such amendment waiver or
supplement; provided, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Security affected thereby, (1) change
the Stated Maturity of the principal of, or any installment of interest on, any
Security, or alter the redemption provisions or reduce the principal amount
thereof or the rate of interest thereon, or change the place of payment where,
or the coin or currency in which, any Security or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on
or after the Maturity Date thereof; or (2) reduce the percentage in principal
amount of the Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain provisions of the
Indenture or certain defaults hereunder and their consequences) provided for in
the Indenture; or (3) modify any of the provisions of Sections 8.8, 8.13 or 11.2
of the Indenture except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby; or (4)
affect the ranking of the Securities of any series or the Liens in favor of the
Trustee, the Collateral Agent and the Holders of Securities of any series in a
manner adverse to the Holders or release all or substantially all of the
Collateral.
13. Defaults and Remedies
If an Event of Default (other than an Event of Default specified in
Section 8.1(vii), (viii) or (xi) of the Indenture) occurs and is continuing with
respect to Outstanding Securities of any series, the Trustee or the Holders of
at least 25% of the principal amount of the Outstanding Securities of such
series by notice to the Company (and to the Trustee if such notice is given by
the Holders) may declare the principal amount and accrued interest on the
Securities of that series to be immediately due and payable. If an Event of
Default specified in Section 8.1(vii), (viii) or (xi) of the Indenture occurs,
the principal amount and accrued interest shall ipso facto become and be
immediately due and payable on all Outstanding Securities without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the then Outstanding Securities of any
series by notice to the Trustee and the Company may rescind an acceleration and
its consequences with respect to such series if the Company has paid or
deposited with the Trustee a sum sufficient to pay all amounts due on Securities
of that series, other than amounts due by declaration of acceleration, and all
existing Events of Default, other than the nonpayment of the principal of the
Securities of that series which have became due solely by such declaration of
acceleration have been cured or waived. The Holders of a
7
majority in principal amount of the Outstanding Securities of any series also
have the right to waive certain past defaults under the Indenture with respect
to such series, except a default in the payment of the principal of, premium, if
any, or interest on any Security of such series, or in respect of a covenant or
a provision which cannot be modified or amended without the consent of all
Holders of Securities of such series.
Holders of Securities of any series may not enforce the Indenture or
the Securities of such series except as provided in the Indenture. The Trustee
may refuse to enforce the Indenture or the Securities of any series unless it
receives reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in principal amount of the Securities of any series may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities of any series notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
16. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
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
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
8
18. 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 this Security. No representation is made as to the accuracy of such
numbers as printed on this Security and reliance may be placed only on the other
identification numbers placed thereon.
19. Governing Law
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York 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.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to:
Bayou Steel Corporation
P.O. Box 5000
River Road
LaPlace, LA 70069
Attention: Secretary
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
- --------------------------------------------------------------------------------
Date:____________________ Your Signature:___________________
Signature Guarantee:______________________________
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
1[ ] acquired for the undersigned's own account, without transfer; or
2[ ] transferred to the Company; or
3[ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"); or
4[ ] transferred pursuant to an effective registration statement under
the Securities Act; or
2
5[ ] transferred pursuant to and in compliance with Regulation S under
the Securities Act; or
6[ ] transferred to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), that has
furnished to the Trustee a signed letter containing certain representations
and agreements (the form of which letter appears as Section 3.2(g) of the
Indenture); or
7[ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
______________________________
Signature
Signature Guarantee:
____________________________________ ______________________________
(Signature must be guaranteed) Signature
____________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the
3
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
_____________________
Dated: NOTICE: To be executed by an executive officer
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Date of Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Exchange Global Security Global Security such decrease or increase Securities Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 6.15 or Section 6.19 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 6.15 or Section 6.19 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: _______________ Your Signature: _________________________
(Sign exactly as your name appears on the other side
of the Security)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
[FORM OF FACE OF EXCHANGE NOTE]
[Depository Legend, if applicable]
No. Principal Amount $[____________]
CUSIP NO. _____________
BAYOU STEEL CORPORATION
[__]% First Mortgage Note due 200[ ]
Bayou Steel Corporation, a Delaware corporation promises to pay to
[___________], or registered assigns, the principal sum of [__________________]
Dollars on [________], 200[ ].
Interest Payment Dates: [______________].
Record Dates: [______________].
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: BAYOU STEEL CORPORATION
By:
--------------------------------
Attest by:
-------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
FIRST NATIONAL BANK OF COMMERCE
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By
-------------------------------
Authorized Signatory [DATE]
EXHIBIT B
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
[__]% First Mortgage Note due 200[]
1. Interest
Bayou Steel Corporation, a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above.
The Company will pay interest semiannually on [_________] and
[________] of each year. Interest on this Security will accrue from the most
recent date to which interest has been paid on this Security or, if no interest
has been paid, from [ISSUE DATE]. The Company shall pay interest on overdue
principal (plus interest on such interest to the extent lawful), at the rate
borne by this Security 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 principal of and interest on this Security shall be payable at the
office or agency of the Paying Agent in The City of New Orleans, maintained for
such purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
further, that a Holder of $10,000,000 in aggregate principal amount of
Securities of any series shall be entitled to receive payments of interest by
wire transfer in immediately available funds (but only if appropriate payment
instructions have been received in writing by the Paying Agent not less than 15
calendar days prior to the applicable Interest Payment Date).
3. Paying Agent and Security Registrar
Initially, First National Bank of Commerce, a national banking
association ("Trustee"), will act as Paying Agent and Security Registrar. The
Company may appoint and change any Paying Agent without notice to any Holder.
The Company may act as Paying Agent.
4. Indenture
The Company issued this Security under an Indenture dated as of May
22, 1998 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), among the Company and the Trustee.
The terms of this Security include those stated in the Indenture and those made
part of the Indenture by
2
reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) as
in effect from time to time (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. This
Security is subject to all such terms, and the Holder of this Security is
referred to the Indenture and the Act for a statement of those terms.
The Securities are senior secured obligation of the Company. This
Security is one of the [1998] Exchange Notes referred to in the Indenture. The
[1998] Initial Notes and the [1998] Exchange Notes are treated as a single
series of Securities under the Indenture. The Indenture imposes certain
limitations on, among other things, the ability of the Company to incur
additional Indebtedness; create Liens; make Restricted Payments; engage in
certain transactions with stockholders and Affiliates; engage in Sale and
Leaseback Transactions; dispose of assets; issue Preferred Stock of
Subsidiaries; transfer assets to its subsidiaries; enter into agreements that
restrict the ability of its Subsidiaries to make dividends and distributions;
engage in mergers, consolidations and transfers of substantially all of the
Company's assets; make certain Investments, loans, and advances; and create Non-
Recourse Subsidiaries. These limitations are subject to a number of important
qualifications and exceptions. The Company must report to the Trustee annually
its compliance with the limitations contained in the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
5. Mandatory Redemption
Upon a Change of Control, the Holder of this Security will have the
right to cause the Company to repurchase all or any part of this Security at a
purchase price in cash equal to 101% of the principal amount hereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to the
right of the Holder of record on the relevant record date to receive interest
due on the relevant interest payment date) as provided in, and subject to the
terms of, the Indenture.
Section 6.15 of the Indenture provides that after certain Asset Sales,
subject to certain limitations contained therein, the Company may be required to
make an offer to purchase all or a portion of this Security in accordance with
the procedures set forth in the Indenture.
3
6. Optional Redemption
[The Company, at its option, may redeem this Security, in whole or in
part, from time to time on and after [__________, 2003], at the redemption
prices set forth below (expressed as a percentage of the principal amount
thereof), in each case together with accrued interest, if any, to the date of
redemption, if redeemed during the twelve-month period beginning
[_______________] of the years indicated below:
Year Percentage
---- ----------
[2003] ---.--%
[2004] ___.__ %
[2005] ___.__%
[2006] and thereafter 100.00%
provided that if the date fixed for redemption is [________] or [________], then
the interest payable on such date shall be paid to the Holder of record on the
next preceding [_________] or [__________].
Prior to [__________], 2001, the Company may, at its option, from time
to time, redeem up to 35% of the original aggregate principal amount of the 1998
Securities at a redemption price equal to ___% of the principal amount thereof,
together with accrued and unpaid interest, if any, to the date of redemption
with all or a portion of the net proceeds of public sales of common stock of the
Company; provided, that at least 65% of the original aggregate principal amount
of the 1998 Securities remains outstanding immediately after the occurrence of
such redemption; and provided, further, that such redemption shall occur within
60 days of the date of the closing of the related sale of common stock of the
Company.
At any time prior to [____________], 2003, the Company may, at its
option, redeem the 1998 Securities, in whole but not in part, upon the
occurrence of a Change of Control, at a redemption price equal to 100% of the
principal amount thereof, together with the Applicable Premium as of, and
accrued and unpaid interest, if any, to, the date of redemption.]
In the event that less than all of the Securities of any series are to
be redeemed, the Trustee shall select the Securities of such series to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities being redeemed are listed,
or, if the Securities are not listed on a national securities exchange, on a pro
rata basis, by lot or by such method as the Trustee
4
shall deem fair and appropriate; provided, that no Securities of $1,000 or less
shall be redeemed in whole or in part.
At least 30 days but not more than 60 days prior to a redemption date
(but, in the case of any redemption of this Security pursuant to a Change of
Control, in no event more than 90 days after the occurrence of such Change of
Control), the Company shall mail or cause the mailing of a notice of redemption
by first-class mail to the Holder of this Security at its registered address.
If this Security is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount to be redeemed. A new Security in a
principal amount equal to the unredeemed portion hereof will be issued in the
name of the Holder hereof upon cancellation of the original Security. On and
after the redemption date, interest will cease to accrue on this Security or the
portion hereof called for redemption unless the Company defaults in the payment
of the redemption price or accrued interest.
7. Senior Secured Obligations
The Securities are senior obligations of the Company, secured by a
first priority lien, subject to certain exceptions, on the Collateral owned by
it to the Collateral Agent for the benefit of the Holders pursuant to the
Indenture and the Security Documents. The Recourse Subsidiaries of the Company
shall, by executing the Indenture, guarantee the obligations of the Company with
respect to the Securities. The Securities will rank senior in right of payment
to all future subordinated indebtedness of the Company. The Subsidiary
Guarantees will be secured by the Collateral assigned by such Subsidiary
pursuant to a Subsidiary Security Agreement.
Each Holder, by accepting a Security, agrees to all of the terms and
provisions of the Security Documents, as the same may be amended from time to
time pursuant to the respective provisions thereof and the Indenture, and hereby
irrevocably appoints the Trustee as its special attorney-in-fact for the Holder
and vests the Trustee on behalf of the Holder with full power to act on such
Holder's behalf and enforce the Security Documents for the benefit of the
Holder.
The Trustee, the Collateral Agent and each Holder acknowledges that a
release of any of the Collateral or any Lien strictly in accordance with the
terms and provisions of the Indenture and Security Documents will not be deemed
for any purpose to be an impairment of the Security under the Indenture.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of principal amount of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture and the face of
this Security. The Company shall provide for the registration of Securities and
of transfers of Securities in
5
the Security Register. The Security Registrar may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents. No service
charge shall be made to the Holder of this Security for any registration of
transfer or exchange, but the Company may require the payment of a sum
sufficient to cover any transfer tax, assessments or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charges payable upon exchanges or transfers pursuant to Section
11.6 of the Indenture). The Security Registrar shall not be required to register
the transfer of or exchange any Securities for a period beginning (i) 15
Business Days before the mailing of a notice of an offer to repurchase the
Securities of the same series as this Security and ending on the close of
business on the day of such mailing or (ii) 15 Business Days before an interest
payment date for this Security and ending on such interest payment date.
9. Persons Deemed Owners
The registered holder of this Security may be treated as the owner of
it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment as unsecured general creditors.
11. Defeasance
Subject to certain conditions set forth in the Indenture, the Company
at any time may terminate some or all of its obligations with respect to this
Security and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
series of Securities, of which this Security is a part, to maturity.
12. Supplemental Indentures, Amendment, Waiver
From time to time, the Company and the Subsidiary Guarantors when
authorized by a Board Resolution, and the Trustee (or the Collateral Agent, if a
party thereto), may, without the consent of any Holders, supplement the
Indenture, or amend or waive the Security Documents or the Securities of any
series for certain specified purposes, including, among other things, curing
ambiguities, defects, or inconsistences maintaining the qualification of the
Indenture under the Trust Indenture Act, making any change that does not
adversely affect the rights of any Holder of Securities of any series or
mortgaging, pledging, or granting a security interest in favor of the Collateral
6
Agent as additional security for the payment and performance of the obligations
of the Company under the Indenture, in any property or assets, including any
which are required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted, to the Collateral Agent pursuant to
any Security Document or otherwise, to establish the terms of Securities of any
series as permitted by Section 3.1(a) of the Indenture, to supplement any
provisions of the Indenture to such extent as shall be necessary to permit or
facilitate the issuance of the Securities of any series initially as securities
registered under the Securities Act; provided, that any such action shall not
adversely affect the interests of the Holders of any other series, or to add any
Person who becomes a Recourse Subsidiary of the Company after the date of the
Indenture as a party to the Indenture.
Other amendments, modifications and supplements of the Indenture, the
Securities of any series or the Security Documents may be made by the Company,
the Collateral Agent (if a party thereto) and the Trustee with the consent of
the Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities of each series affected by such amendment waiver or
supplement; provided, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Security affected thereby, (1) change
the Stated Maturity of the principal of, or any installment of interest on, any
Security, or alter the redemption provisions or reduce the principal amount
thereof or the rate of interest thereon, or change the place of payment where,
or the coin or currency in which, any Security or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on
or after the Maturity Date thereof; or (2) reduce the percentage in principal
amount of the Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain provisions of the
Indenture or certain defaults hereunder and their consequences) provided for in
the Indenture; or (3) modify any of the provisions of Sections 8.8, 8.13 or 11.2
of the Indenture except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby; or (4)
affect the ranking of the Securities of any series or the Liens in favor of the
Trustee, the Collateral Agent and the Holders of Securities of any series in a
manner adverse to the Holders or release all or substantially all of the
Collateral.
13. Defaults and Remedies
If an Event of Default (other than an Event of Default specified in
Section 8.1(vii), (viii) or (xi) of the Indenture) occurs and is continuing with
respect to Outstanding Securities of any series, the Trustee or the Holders of
at least 25% of the principal amount of the Outstanding Securities of such
series by notice to the Company (and to the Trustee if such notice is given by
the Holders) may declare the principal amount and accrued interest on the
Securities of that series to be immediately due and payable. If an Event of
Default specified in Section 8.1(vii), (viii) or (xi) of the Indenture
7
occurs, the principal amount and accrued interest shall ipso facto become and be
immediately due and payable on all Outstanding Securities without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the then Outstanding Securities of any
series by notice to the Trustee and the Company may rescind an acceleration and
its consequences with respect to such series if the Company has paid or
deposited with the Trustee a sum sufficient to pay all amounts due on Securities
of that series, other than amounts due by declaration of acceleration, and all
existing Events of Default, other than the nonpayment of the principal of the
Securities of that series which have became due solely by such declaration of
acceleration have been cured or waived. The Holders of a majority in principal
amount of the Outstanding Securities of any series also have the right to waive
certain past defaults under the Indenture with respect to such series, except a
default in the payment of the principal of, premium, if any, or interest on any
Security of such series, or in respect of a covenant or a provision which cannot
be modified or amended without the consent of all Holders of Securities of such
series.
Holders of Securities of any series may not enforce the Indenture or
the Securities of such series except as provided in the Indenture. The Trustee
may refuse to enforce the Indenture or the Securities of any series unless it
receives reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in principal amount of the Securities of any series may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities of any series notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
8
16. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
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
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
18. 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 this Security. No representation is made as to the accuracy of such
numbers as printed on this Security and reliance may be placed only on the other
identification numbers placed thereon.
19. Governing Law
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York 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.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to:
Bayou Steel Corporation
P.O. Box 5000
River Road
LaPlace, LA 70069
Attention: Secretary
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
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(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
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Date: _______________ Your Signature ____________________
Signature Guarantee: ____________________________________
(Signature must be guaranteed)
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Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Date of Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Exchange Global Security Global Security such decrease or increase Securities Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 6.15 or Section 6.19 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 6.15 or Section 6.19 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: _______________ Your Signature: _________________________
(Sign exactly as your name appears on the other side
of the Security)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.