Exhibit 4.1
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BAYOU STEEL CORPORATION
TO
FIRST NATIONAL BANK OF COMMERCE, as Trustee
-------------------
Indenture
Dated __________ ___, 1994
$75,000,000
__% First Mortgage Notes due 2001
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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
(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
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
(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)
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION.................... 2
SECTION 1.1. Definitions............................. 2
"Act"................................................. 2
"Affiliate"........................................... 2
"Appraiser"........................................... 3
"Asset Acquisition"................................... 3
"Asset Sale".......................................... 3
"Asset Sale Offer".................................... 3
"Asset Sale Payment Date"............................. 3
"Authenticating Agent"................................ 3
"Available Amount".................................... 3
"Bankruptcy Law"...................................... 3
"Board of Directors".................................. 3
"Board Resolution".................................... 3
"BSPL"................................................ 4
"Business Day"........................................ 4
"Capital Stock"....................................... 4
"Capitalized Lease"................................... 4
"Capitalized Lease Obligation" ....................... 4
"Cash Equivalents".................................... 4
"Change of Control"................................... 4
"Change of Control Date".............................. 5
"Change of Control Offer"............................. 5
"Change of Control Payment Date"...................... 5
"Collateral".......................................... 5
"Collateral Account".................................. 5
"Collateral Agent".................................... 6
"Collateral Proceeds"................................. 6
"Commission".......................................... 6
"Common Stock"........................................ 6
"Company"............................................. 6
"Company Obligations"................................. 6
"Company Request" or "Company Order".................. 6
"Company Security Agreement".......................... 6
"Condemnation Award".................................. 6
"Consolidated Domestic Income Tax Expense"............ 6
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Page(s)
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"Consolidated Interest Expense"....................... 7
"Consolidated Interest Income"........................ 7
"Consolidated Net Income"............................. 7
"Consolidated Net Worth".............................. 7
"Consolidated Subsidiary"............................. 8
"Corporate Trust Office".............................. 8
"corporation"......................................... 8
"Credit Facility"..................................... 8
"Currency Agreement".................................. 8
"Custodian"........................................... 8
"Default"............................................. 8
"Defaulted Interest".................................. 8
"Depositary".......................................... 8
"Disqualified Stock".................................. 8
"EBITDA".............................................. 8
"EBITDA Ratio"........................................ 9
"Event of Default".................................... 9
"Exchange Act"........................................ 9
"Financial Advisor"................................... 9
"GAAP"................................................ 9
"Global Security"..................................... 10
"Guarantee"........................................... 10
"Holder".............................................. 10
"Indebtedness"........................................ 10
"Indenture"........................................... 11
"Independent"......................................... 11
"Intercreditor Agreement"............................. 11
"Interest Payment Date"............................... 11
"Interest Rate Agreement"............................. 11
"Internal Revenue Code"............................... 11
"Investment".......................................... 11
"Issue Date".......................................... 11
"Joint Venture"....................................... 12
"Lenders"............................................. 12
"Lender Secured Property"............................. 12
"Lien"................................................ 12
"Maturity Date"....................................... 12
"Meyers".............................................. 12
"Mortgage"............................................ 12
"Net Cash Proceeds"................................... 12
"Net Income".......................................... 13
"Net Insurance Proceeds".............................. 13
"Non-Collateral Proceeds"............................. 13
"Non-Recourse Indebtedness"........................... 13
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Page(s)
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"Non-Recourse Subsidiary"........................... 14
"Obsolete Assets"................................... 14
"Officers' Certificate"............................. 14
"Opinion of Counsel"................................ 14
"Outstanding"....................................... 14
"Paying Agent"...................................... 15
"Permitted Liens"................................... 15
"Permitted Payments"................................ 16
"Permitted Related Acquisition"..................... 17
"Person"............................................ 17
"Predecessor Security".............................. 17
"Preferred Stock"................................... 17
"Prospectus"........................................ 17
"Recourse Subsidiary"............................... 17
"Reference Period".................................. 17
"Regular Record Date"............................... 17
"Release Agreement"................................. 17
"Released Interests"................................ 17
"Released Trust Moneys"............................. 17
"Responsible Officer"............................... 17
"Restricted Investment"............................. 18
"Restricted Payment"................................ 18
"Restricted Subsidiary"............................. 18
"Retained Trust Moneys"............................. 18
"Sale and Leaseback Transaction".................... 18
"Security Documents"................................ 19
"Security Register" and "Security Registrar"........ 19
"Service Agreement"................................. 19
"Special Record Date"............................... 19
"Stated Maturity"................................... 19
"Subsidiary"........................................ 19
"Subsidiary Guarantee".............................. 19
"Subsidiary Security Agreement"..................... 19
"Tax Lessor"........................................ 19
"TBT Lease"......................................... 20
"Trade Payables".................................... 20
"Transaction"....................................... 20
"Trust Moneys"...................................... 20
"Trust Moneys Release Notice" ...................... 21
"Trustee"........................................... 21
"Trust Indenture Act"............................... 21
"Trust Officer"..................................... 21
"Tulsa Facility".................................... 21
"U.S. Government Obligations"....................... 21
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Page(s)
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"VAIC".............................................. 22
"Valuation Date".................................... 22
"Vice President".................................... 22
"Voest-Alpine"...................................... 22
"Wholly-Owned Recourse Subsidiary".................. 22
"Wholly-Owned Subsidiary"........................... 22
"Withdrawal Notice"................................. 22
SECTION 1.2. Compliance Certificates and Opinions...... 22
SECTION 1.3. Form of Documents Delivered to Trustee.... 23
SECTION 1.4. Acts of Holders; Record Dates............. 23
SECTION 1.5. Notices, Etc., to Trustee and Company..... 24
SECTION 1.6. Notice to Holders; Waiver................. 25
SECTION 1.7. Conflict with Trust Indenture Act......... 25
SECTION 1.8. Effect of Headings and Table of Contents.. 25
SECTION 1.9. Successors and Assigns.................... 26
SECTION 1.10. Separability Clause....................... 26
SECTION 1.11. Benefits of Indenture..................... 26
SECTION 1.12. Governing Law............................. 26
SECTION 1.13. Legal Holidays............................ 26
SECTION 1.14. Immunity of Incorporators, Stockholders,
Officers and Directors.................. 26
ARTICLE II
SECURITY FORMS...................... 27
SECTION 2.1. Forms Generally........................... 27
SECTION 2.2. Form of Face of Security.................. 28
SECTION 2.3. Form of Trustee's Certificate
of Authentication....................... 36
ARTICLE III
THE SECURITIES...................... 37
SECTION 3.1. Title and Terms........................... 37
SECTION 3.2. Denominations............................. 38
SECTION 3.3. Execution, Authentication, Delivery
and Dating.............................. 38
SECTION 3.4. Temporary Securities...................... 38
SECTION 3.5. Registration; Registration of Transfer and
Exchange................................ 39
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen
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Page(s)
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Securities............................ 41
SECTION 3.7. Payment of Interest; Interest Rights
Preserved............................. 42
SECTION 3.8. Persons Deemed Owners................... 43
SECTION 3.9. Cancellation............................ 44
SECTION 3.10. Computation of Interest................. 44
SECTION 3.11. Paying Agent............................ 44
ARTICLE IV
SATISFACTION AND DISCHARGE.............. 44
SECTION 4.1. Satisfaction and Discharge of Indenture. 44
SECTION 4.2. Application of Monies for Satisfaction
and Discharge......................... 45
ARTICLE V
REDEMPTION...................... 46
SECTION 5.1. Notices to Trustee...................... 46
SECTION 5.2. Selection of Securities To Be Redeemed.. 46
SECTION 5.3. Notice of Redemption.................... 46
SECTION 5.4. Effect of Notice of Redemption.......... 47
SECTION 5.5. Deposit of Redemption Price............. 48
SECTION 5.6. Securities Redeemed in Part............. 48
SECTION 5.7. Securities Exchange Act Requirements.... 48
ARTICLE VI
COVENANTS...................... 48
SECTION 6.1. Payment of Securities................... 48
SECTION 6.2. Maintenance of Office or Agency......... 49
SECTION 6.3. Corporate Existence..................... 49
SECTION 6.4. Payment of Taxes and Other Claims;
Tax Consolidation..................... 50
SECTION 6.5. Compliance Certificates................. 50
SECTION 6.6. SEC Reports............................. 51
SECTION 6.7. Waiver of Stay, Extension or Usury Laws. 52
SECTION 6.8. Maintenance of Properties; Insurance;
Books and Records; Compliance
with Law.............................. 52
SECTION 6.9. Limitations on Indebtedness............. 53
SECTION 6.10. Limitation on Liens..................... 55
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Page(s)
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SECTION 6.11. Limitation on the Issuance of
Preferred Stock by Subsidiaries.................. 56
SECTION 6.12. Transfer of Assets to Subsidiaries................. 57
SECTION 6.13. Limitations on Restricted Payments................. 57
SECTION 6.14. Limitations on Transactions
with Stockholders and Affiliates................. 58
SECTION 6.15. Restrictions on Assets Sales....................... 59
SECTION 6.16. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.............. 62
SECTION 6.17. Limitation on Sale and Leaseback Transactions...... 62
SECTION 6.18. Limitation on Investment, Loans and Advances....... 63
SECTION 6.19. Change of Control.................................. 64
SECTION 6.20. Limitations as to Non-Recourse Subsidiaries........ 66
SECTION 6.21. Impairment of Security Interest.................... 66
SECTION 6.22. Conflicting Agreements............................. 66
SECTION 6.23. Amendment to Security Documents.................... 67
SECTION 6.24. Inspection......................................... 67
SECTION 6.25. Use of Proceeds.................................... 67
SECTION 6.26. Money for Security Payments to Be Held in Trust.... 67
ARTICLE VII
SUCCESSOR CORPORATION........................... 68
SECTION 7.1. When Company May Merge, etc........................ 68
SECTION 7.2. Surviving Person Substituted....................... 70
ARTICLE VIII
EVENTS OF DEFAULT............................. 70
SECTION 8.1. Events of Default.................................. 70
SECTION 8.2. Acceleration of Maturity; Rescission and
Annulment........................................ 72
SECTION 8.3. Collection of Debt and Suits for
Enforcement by Trustee........................... 73
SECTION 8.4. Trustee May File Proofs of Claims.................. 74
SECTION 8.5. Trustee May Enforce Claims
Without Possession of Securities................. 74
SECTION 8.6. Application of Money Collected..................... 75
SECTION 8.7. Limitation on Suits................................ 75
SECTION 8.8. Unconditional Right of Holders to
Receive Principal and Interest................... 76
SECTION 8.9. Restoration of Rights and Remedies................. 77
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Page(s)
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SECTION 8.10. Rights and Remedies Cumulative............... 77
SECTION 8.11. Delay or Omission Not Waiver................. 77
SECTION 8.12. Control by Holders........................... 77
SECTION 8.13. Waiver of Past Defaults...................... 78
SECTION 8.14. Undertaking for Costs........................ 78
SECTION 8.15. Waiver of Stay or Extension Laws............. 79
SECTION 8.16. Collection Suit by Trustee................... 79
ARTICLE IX
THE TRUSTEE.......................... 79
SECTION 9.1. Certain Duties and Responsibilities.......... 79
SECTION 9.2. Notice of Defaults........................... 80
SECTION 9.3. Certain Rights of Trustee.................... 80
SECTION 9.4. Not Responsible for Recitals
or Issuance of Securities.................. 81
SECTION 9.5. May Hold Securities.......................... 81
SECTION 9.6. Money Held in Trust.......................... 82
SECTION 9.7. Compensation and Reimbursement............... 82
SECTION 9.8. Disqualification; Conflicting Interests...... 83
SECTION 9.9. Corporate Trustee Required; Eligibility...... 83
SECTION 9.10. Resignation and Removal;
Appointment of Successor................... 83
SECTION 9.11. Acceptance of Appointment by Successor....... 85
SECTION 9.12. Merger, Conversion, Consolidation or
Succession to Business..................... 85
SECTION 9.13. Preferential Collection of Claims Against
Company.................................... 86
SECTION 9.14. Appointment of Authenticating Agent.......... 86
ARTICLE X
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...... 88
SECTION 10.1. Company to Furnish Trustee
Names and Addresses of Holders............ 88
SECTION 10.2. Preservation of Information; Communications
to Holders................................ 88
SECTION 10.3. Reports by Trustee.......................... 88
SECTION 10.4. Reports by Company.......................... 89
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Page(s)
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ARTICLE XI
SUPPLEMENTAL INDENTURES...................... 89
SECTION 11.1. Supplemental Indentures without Consent of
Holders...................................... 89
SECTION 11.2. Supplemental Indentures with Consent of
Holders...................................... 90
SECTION 11.3. Execution of Supplemental Indentures........... 91
SECTION 11.4. Effect of Supplemental Indentures.............. 91
SECTION 11.5. Conformity with Trust Indenture Act............ 91
SECTION 11.6. Reference in Securities to Supplemental
Indentures................................... 92
ARTICLE XII
COLLATERAL AND SECURITY...................... 92
SECTION 12.1. Collateral and Security Documents.............. 92
SECTION 12.2. Recording and Opinions......................... 94
SECTION 12.3. Release of Collateral.......................... 95
SECTION 12.4. Possession and Use of Collateral............... 95
SECTION 12.5. Specified Releases of Collateral............... 96
SECTION 12.6. Disposition of Collateral Without Release...... 98
SECTION 12.7. Form and Sufficiency of Release................ 98
SECTION 12.8. Purchaser Protected............................ 98
SECTION 12.9. Authorization of Actions To Be Taken by The
Trustee Under the Security Documents......... 99
SECTION 12.10. Authorization of Receipt of Funds by the Trustee
Under the Security Documents................. 99
ARTICLE XIII
APPLICATION OF TRUST MONEYS...................... 99
SECTION 13.1. Collateral Account............................. 99
SECTION 13.2. Withdrawals of Insurance Proceeds and
Condemnation Awards.......................... 100
SECTION 13.3. Withdrawal of Trust Moneys for Asset Sale
Offer........................................ 102
SECTION 13.4. Withdrawal of Trust Moneys for Permitted
Related Acquisitions......................... 103
SECTION 13.5. Withdrawal of Trust Moneys for Retention by the
Company or its Subsidiaries.................. 104
SECTION 13.6. Withdrawal of Trust Moneys on Basis
of Retirement of Securities.................. 105
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INDENTURE UNITED STATES OF AMERICA
BY
BAYOU STEEL CORPORATION STATE OF LOUISIANA
TO
FIRST NATIONAL BANK OF COMMERCE, PARISH OF ST. JOHN
AS TRUSTEE THE BAPTIST
On this ___ day of _______, 1994, before me, _________
_______________, 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 ________________, its _________________, duly authorized
by resolutions of the Board of Directors of the Corporation, a certified copy of
which is annexed hereto;
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 ________________, its
_________________;
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 ___%
First Mortgage Notes due 2001 (herein called the "Securities") of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.
All things necessary to make the 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, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
2
For and in consideration of the premises and the purchase of the
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;
(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.
"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 American Institute of Real Estate Appraisers, recognized and licensed to
do business in the
3
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 Company or any of its 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 Subsidiaries of the assets of any Person which constitute
substantially all of an operating unit or business of such Person.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease or other disposition to any Person (including any Non-Recourse Subsidiary)
other than the Company or a Wholly-Owned Recourse Subsidiary of the Company, in
one transaction or a series of related transactions, of (i) any Capital Stock of
any Subsidiary of the Company or (ii) any other property or asset of the Company
or any Subsidiary of the Company, in each case, other than in the ordinary
course of business.
"Asset Sale Offer" has the meaning specified in Section 6.15(b).
"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" has the meaning specified in Section 6.15(b).
"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.
"BSPL" means Bayou Steel Properties Limited, formerly RSR Steel
Corporation, which is the owner of 100% of the Class B Common Stock of the
Company.
4
"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 Issue Date or thereafter
issued, including, without limitation, all Common Stock and Preferred Stock.
"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 or lessee under which, in conformity with
GAAP, is required to be capitalized on the balance sheet of that Person.
"Capitalized Lease Obligation" means the discounted present value of
the rental obligations of any Person under any 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 & Poor's
Corporation or at least P-1 by Moody's Investors Service, Inc.
"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
5
(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 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 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); or (D) any trust in which one
or more of the Persons referred to in clause (A), (B) or (C) are principal
beneficiaries; or
(ii) a merger resulting in the proportionate interest of the
Class B Common Stock held by BSPL being held by BSPL'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.
6
"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 A, 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 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 certain
expenses.
"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 aggregate interest expense (including amortization of original
issue discount and 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
7
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 (if positive)
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.
"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.
8
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Credit Facility" means the Credit Agreement, dated June 28, 1989, as
amended and restated through November 23, 1993, among the Company, the Lenders
named therein and Chemical Bank, as agent and lender, or any renewal,
refinancing or continuation thereof as each of the foregoing may be amended,
supplemented or otherwise modified from time to time.
"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 or any successor
thereto.
"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; (c) Consolidated Interest Expense; 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;
provided, that the amounts set forth in clauses (b) through (d) will be included
only to the extent such amounts reduced Consolidated Net Income.
"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 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
9
to the incurrence of the Indebtedness in question (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 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) 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; and (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. For the purpose 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 (v) 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.
"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.
"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 Security" means a Security evidencing all or part of a series
of Securities which is issued to the Depositary or its nominee and is registered
in the name of the Depositary or its nominee.
10
"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 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 (the amount of Indebtedness represented by any Disqualified Stock will be
the greater of the voluntary or involuntary liquidation preference plus accrued
and unpaid dividends).
"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
11
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 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.
"Intercreditor Agreement" means the Intercreditor Agreement dated of
even date herewith among the Company, Chemical Bank, as agent for the financial
institutions parties to the Credit Facility, and Hibernia National Bank,
in substantially the form of Exhibit __ hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"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.
"Investment" of any Person means all investments in other Persons in
the form of loans, advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchase (or other acquisitions for consideration) of
Indebtedness, Capital Stock or other securities issued by any other Person.
"Issue Date" means the original date of issuance of the Securities.
"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
Credit Facility.
"Lender Secured Property" means the accounts receivable and inventory
(excluding certain rolling equipment classified as inventory in the books and
records of the Company) of the Company, and the proceeds thereof, that secure
the obligations of the Company under the Credit Facility and the Tulsa Facility.
12
"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.
"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 Sales Offer, Change of Control Offer or
otherwise.
"Meyers" means Howard M. Meyers, an individual with a business address
on the Issue Date at 1111 Mockingbird Lane, Dallas, Texas 75247.
"Mortgage" means each mortgage (or deed of trust), dated as of
the date hereof, between the Company and the Trustee or between a Subsidiary of
the Company and the Trustee, in either case in substantially the form of Exhibit
B-1 or B-2 hereto, as the same may be amended, supplemented or modified from
time to time in accordance with its terms.
"Net Cash Proceeds" from a sale, transfer or other disposition 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 as a reserve, in accordance with GAAP,
against any liabilities associated with such assets and retained by the Company
or any 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
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 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.
13
"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
extraordinary, unusual and non-recurring gains and losses as determined in
accordance with GAAP shall be excluded.
"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 certain expenses.
"Net Interest Expense" means the difference between Consolidated
Interest Expense and Consolidated Interest Income; provided, that such amount
shall not be less than zero.
"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 Subsidiary (other than such
Non-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; (b) the holders of such Indebtedness
expressly waive any recourse which they may have, in law, equity or otherwise,
whether based on misrepresentation, control, ownership or otherwise, to the
Company and any Subsidiary (other than such Non-Recourse Subsidiary), including,
without limitation, a waiver of the benefits of the provisions of Section
1111(b) of Bankruptcy Code (Title 11, United States Code) as amended; and (c) 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 of any
other Indebtedness of the Company or any Subsidiary (other than such
Non-Recourse Subsidiary) to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity.
"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 (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" means machinery, equipment, furniture, apparatus,
tools or implements or other similar property which have become worn out,
obsolete or no longer necessary to the operation of the business of the Company
or its Subsidiaries, as the case may be.
14
"Officers' Certificate" means, when used with respect to the Company,
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 any
other officer identified by any of the foregoing officers in an Officers'
Certificate to be an executive officer of the Company) and the Secretary, an
Assistant Secretary or the Controller of the Company. 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.
"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.
"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 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.
15
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to the Company of any right to manufacture, use or
sell any invention covered by a Patent.
"Patents" means (a) all letters patent of the United States or any
other country and all reissues and extensions thereof and (b) all applications
for letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Permitted Liens" means (a) Liens for taxes, assessments, 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; (b) other Liens incidental to the conduct of the Company's and
its 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 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 materialmen
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); (c) Liens with respect to assets of a
Subsidiary granted by such Subsidiary to the Company to secure Indebtedness
owing to the Company; (d) Liens on assets owned by Non-Recourse Subsidiaries to
secure Non-Recourse Indebtedness; (e) Liens on assets not constituting
Collateral with an aggregate book value not in excess of 5% of the book value of
the Company's total assets as shown on the Company's most recent consolidated
balance sheet; (f) pledges and deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security; (g) 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); (h) zoning restrictions, servitudes, easements,
rights-of-way, restrictions 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 Subsidiaries; (i) Liens arising out of judgments or awards
against the Company or any Subsidiary with respect to which the Company or such
Subsidiary is prosecuting an appeal or proceeding for review and the Company or
such Subsidiary is maintaining adequate reserves in accordance with GAAP; and
(j) any interest or title of a lessor in the property subject to any Capitalized
Lease Obligation or operating lease.
16
"Permitted Payments" means, with respect to the Company or any of its
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 another Subsidiary (except a Non-Recourse
Subsidiary); (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 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, 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 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 Subsidiaries will not repurchase
such Indebtedness pursuant to such provisions prior to the Company's repurchase
of the 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 Subsidiary of its Capital Stock owned
by the Company or another Wholly-Owned Subsidiary.
"Permitted Related Acquisition" has the meaning specified in Section
6.15(b).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"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.
"Prospectus" means the Prospectus dated ________ __, 1994 pursuant to
which the Securities were offered.
17
"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.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the __________ or _________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Release Agreement" means the Release of Federal Income Tax Ownership
and Agreement dated as of the date hereof between the Trustee, the Company,
Voest-Alpine and Meyers, in substantially the form attached hereto as
Exhibit __, as the same may be amended, supplemented or otherwise modified from
time to time.
"Released Interests" has the meaning specified in Section 12.5(b).
"Released Trust Moneys" has the meaning specified in Section 13.4.
"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 Wholly-Owned 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 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 for value prior to scheduled maturity of any
Indebtedness ranked pari passu or subordinate in right of payment to the
Securities and having a maturity date subsequent to the maturity of the
Securities; (d) any investment in, loan, advance to, Guarantee on behalf of,
directly or indirectly, or other transfer of assets to (i) any Restricted
Subsidiary or (ii) any holder of 5% or more of any class of Capital Stock of the
Company (including Affiliates thereof other than Subsidiaries of the Company);
and (e) any Restricted
18
Investment (except to the extent permitted by Section 6.18); provided, that
"Restricted Payments" shall not include any payment described in (a), (b) or
(c) above made by a Subsidiary to the Company or to a Wholly-Owned Recourse
Subsidiary of the Company. Notwithstanding the foregoing, Restricted Payment
shall not include any Permitted Payment.
"Restricted Subsidiary" means (a) any Joint Venture in which the
Company or any of its Subsidiaries holds a 50% or less interest or (b) any
Subsidiary which is not a Wholly-Owned Recourse Subsidiary or (c) any Subsidiary
subject to consensual restrictions, other than pursuant to the Credit Facility,
direct or indirect, on the declaration or payment of dividends or similar
distributions by that Subsidiary to the Company or any other
Subsidiary of the Company.
"Retained Trust Moneys" has the meaning specified in Section 13.5.
"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 Subsidiaries of any property or asset of such Person or any
of its Subsidiaries which has been or is being sold or transferred by such
Person or such 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.
"Security Documents" means, collectively, (i) the Mortgages, (ii) the
Company Security Agreements, (iii) the Subsidiary Security Agreements, (iv) the
Subsidiary Guarantee, (v) the Intercreditor Agreement, and (vi) any other
Mortgage, security agreement or other agreement evidencing a security interest
executed in accordance with Section 12.1 after the Issue Date.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Service Agreement" means the Service Agreement dated as of September
5, 1986, among the Company, Quexco Incorporated and RSR Corporation.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"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.
"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.
19
"Subsidiary Guarantee" means each guarantee dated as of the date
hereof, or with respect to Persons that become Recourse Subsidiaries of
the Company subsequent to the Issue Date, as of such subsequent date, between
the Trustee and each Recourse Subsidiary of the Company, substantially
in the form of Exhibit __ hereto, as the same may be amended, supplemented or
otherwise modified from time to time.
"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 Issue Date, as of such subsequent date, between
the Trustee and each Recourse Subsidiary of the Company, substantially in the
form of Exhibit D hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"Tax Lessor" means Amoco Tax Leasing I Corporation, a Delaware
corporation.
"TBT Lease" means the Agreement dated November 11, 1981 between the
Tax Lessor and the Company, as amended, supplemented or otherwise modified from
time to time.
"Trade Payables" means accounts payable or any other Indebtedness or
monetary obligations to trade creditors created or assumed by the Company or its
Subsidiaries in the ordinary course of business in connection with the obtaining
of materials or services.
"Trade Secrets" means any proprietary information, process
or system now or hereafter created which is within the possession of the
Company, including, without limitation, manufacturing processes or methods, all
formulae, processes, compounds, drawings, designs, blueprints, surveys, reports,
manuals, and operating standards relating to or used in the operating standards
relating to or used in the operation of the Company's business, rights in works
of authorship, and contract rights relating to computer software programs, in
whatever form created or maintained.
"Trademark License" means any agreement, written or oral, providing
for the grant by or to the Company of any right to use any Trademark.
"Trademarks": (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and the goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and (b) all renewals
thereof.
"Transaction" has the meaning specified in Section 6.14.
20
"Trust Moneys" means all cash or Cash Equivalents received by the
Collateral Agent (a) upon the release of property from the Lien of the Security
Documents; or (b) as Condemnation Proceeds with respect to all or any
part of the Collateral; or (c) as Net Insurance Proceeds with respect
to all or any part of the Collateral; or (d) 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; or (e) for application under Article XIII as
elsewhere provided in this Indenture or the Security Documents or whose
disposition is not elsewhere otherwise specifically provided for in the
Indenture or in 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 5.5 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 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 Moneys 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.
"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.
"Tulsa Facility" means the Loan Agreement, dated as of January 9,
1991, as amended and restated November 22, 1993, between the Company and
Hibernia National Bank, together with the Mortgage, Security Agreement and
Financing Statement of even date therewith, each as amended, supplemented or
otherwise modified from time to time.
"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
21
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
"VAIC" means Voest-Alpine International Corporation, a wholly-owned
subsidiary of Voest-Alpine.
"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".
"Voest-Alpine" means Voest-Alpine A.G., an Austrian company.
"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.
SECTION 1.2. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company 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 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:
22
(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 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
23
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 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 and Company.
-------------------------------------
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 or by the Company 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, ________________________, New Orleans, Louisiana _____;
or
24
(ii) the Company 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 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.
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.
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.
25
SECTION 1.9. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its 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 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 of any successor
corporation, either directly or indirectly through the
26
Company 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 of any successor corporation, either
directly or indirectly through the Company 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.
---------------
The Securities and the Trustee's certificates of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of
any securities exchange on which the Securities may be listed, if any, all
as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.2. Form of Face of Security.
------------------------
BAYOU STEEL CORPORATION
No. _____________ $__________________
[Insert if the Security is to be a Global Security -- This Security is
a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of The Depository Trust Company (the "Depositary")
or a nominee of the Depositary. This Global Security is exchangeable for
Securities registered in the name of a
27
Person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Security
(other than a transfer of this Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in such limited
circumstances.
Unless this Security is presented by an authorized representative of
the Depositary (55 Water Street, New York, New York) to the issuer or its agent
for registration of transfer, exchange or payment, and any Security issued upon
registration or transfer of, or in exchange for, or in lieu of, this Security
is registered in the name of Cede & Co. or such other name as requested by an
authorized representative of the Depositary and any payment hereon is made to
Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.]
BAYOU STEEL CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the " Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [Insert if the Security is to be a Global
Security --Cede & Co., as nominee for the Depositary] ______________, or
registered assigns, the principal sum of ____________ Dollars on ______________,
and to pay interest thereon from ___________ /1/ or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on ________________ and ________________ in each year, commencing
___ ___________, at the rate of ____% per annum, until the principal hereof is
paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ____________ or
______________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture. The Company will pay interest on overdue principal and on overdue
interest (to the full extent permitted by law) at a rate of __% per annum.
- --------------
/1/ Insert date of the Indenture or, if the Securities are to be sold "flat",
the expected closing date.
28
Payment of the principal of and interest on this Security will be made
at the office or agency of the Paying Agent in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public or private debts; 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 the
Securities 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). Holders must surrender the
Security at maturity, whether such date occurs by acceleration or otherwise, to
the Paying Agent.
[Insert in place of preceding paragraph if the Security is to be a
Global Security -- Immediately available funds for the payment of the principal
of (and premium, if any) and interest on this Security due on any Interest
Payment Date, Maturity Date or on Stated Maturity 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.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
By acceptance of this Security, the Holder 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 Company will appoint and at all times maintain a Paying Agent
(which may be the Trustee) authorized by the Company to pay the principal of
(and premium, if any) and interest on any Securities on behalf of the Company
and having an office or agency in the City of New Orleans, where Securities may
be presented or surrendered for payment and where notice, designations or
requests in respect of payments with respect to Securities may be served. The
Company has initially appointed the First National Bank of
Commerce as such Paying Agent, with its Corporate Trust Office currently at
_____________________. In addition, the Company has initially appointed the
First National Bank of Commerce as Security Registrar. The Company
29
will give prompt written notice to the Trustee of any such change in
appointments.
BAYOU STEEL CORPORATION
-----------------------
By:
--------------------
Chairman of the Board
Attest by:
-----------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
- ---------------------------------------
This is one of the Securities issued
under the Indenture described herein.
FIRST NATIONAL BANK OF COMMERCE,
- -------------------------------
AS TRUSTEE
----------
By ________________________
Authorized Officer
[Form of Reverse of Security]
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its __% First Mortgage Notes due 2001 (herein called the
"Securities"), limited in aggregate principal amount to $75,000,000, issued and
to be issued under an Indenture, dated as of ___________, 1994 (herein called
the "Indenture"), between the Company and The First National Bank of Commerce,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. 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. This Security is subject to
all such terms, and the Holders of the Securities are referred to the Indenture
and the Trust Indenture Act for a statement of them. Capitalized and certain
other terms used herein and not otherwise defined have the meanings set forth in
the Indenture.
This Security is a secured obligation of the Company limited in
aggregate principal amount to $75,000,000. The Indenture limits, 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
30
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
quarterly its compliance with the limitations contained in the Indenture.
The Company, at its option, may redeem this Security, in whole or in
part, from time to time on and after , 1998, 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
---- -------------
1998 %
1999 %
2000 %
provided, that if the date fixed for redemption is ______ 15 or ____ 15, then
the interest payable on such date shall be paid to the Holder of record on the
next preceding ______1 or ______1.
In the event that less than all of the Securities are to be redeemed
at any time, selection of Securities for redemption will be made by the Trustee
on a pro rata basis, by lot or by such method as the Trustee shall deem fair and
appropriate; provided, however, that no Securities of $1,000 or less shall be
redeemed in part. Notice of redemption shall be mailed by first class mail at
least 30 but not more than 60 days before the redemption date to each Holder to
be redeemed at its registered address. If any Security is to be redeemed in
part only, the notice of redemption that relates to such Security shall state
the portion of the principal amount thereof to be redeemed. A new Security in a
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Security. On and
after the redemption date, interest will cease to accrue on Securities or the
portion thereof called for redemption unless the Company defaults in the payment
of the redemption price or accrued interest.
Sections 6.15 and 6.19 of the Indenture provide that after certain
Asset Sales and upon the occurrence of a Change of Control, and subject to
further limitations contained therein, the Company may be required
to make an offer to purchase certain amounts of Securities in accordance
with the procedures set forth in the Indenture.
In order to secure the due and punctual payment of the principal of
and interest on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same become due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Company, subject to certain
exceptions, has granted security interests in and
31
Liens 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 execute a Subsidiary Guarantee to guarantee
the obligations of the Company with respect to the Securities. The obligations
of a Recourse Subsidiary under the Subsidiaries Guarantee 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.
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.
If an Event of Default (other than an Event of Default specified in
Section 8.1(vii) or (viii)) occurs and is continuing, the Trustee or the Holders
of at least 25% of the principal amount of the Outstanding Securities 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 to be
immediately due and payable. If an Event of Default specified in Section
8.1(vii) or (viii) 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
by notice to the Trustee and the Company may rescind an acceleration and its
consequences if the Company has paid or deposited with the Trustee a sum
sufficient to pay all amounts due, other than amounts due by declaration of
acceleration, and all existing Events of Default, other than the nonpayment of
the principal of the Securities 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 also have the right to waive
certain past defaults under the Indenture, except a default in the payment of
the principal of, premium, if any, or interest on the Security, or in respect of
a covenant or a provision which cannot be modified or amended without the
consent of all Holders.
From time to time, the Company when authorized by a Board Resolution,
and the Trustee (or the Collateral Agent, if a party thereto), may, without the
consent of any Holders, amend, waive, or supplement the Indenture, the Security
Documents or the Securities 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 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
32
otherwise; provided, that the Company delivers to the Trustee an Opinion of
Counsel stating that such change does not adversely affect the rights of any
Holder. Other amendments and modifications of the Indenture, the Securities 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;
provided, that no such modification or amendment may, 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, 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 Section 8.8 , 8.13 or 11.2, 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 or the Liens in favor of the Trustee, the Collateral Agent and the
Holders in a manner adverse to the Holders or release all or substantially all
of the Collateral.
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.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to the
Company at its request. After that, Holders entitled to the money must look to
the Company for payment as unsecured general creditors.
As provided in the Indenture and subject to certain limitations set
forth therein (including in case of any Global Security, certain additional
limitations) and as may be set forth on the face hereof, the transfer of this
Security is registrable in the Security Register upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place
where the principal of and interest on this Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed by the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities in an authorized denomination and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture
33
and subject to certain limitations therein and herein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of different
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require appropriate endorsements and the
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith, other than exchanges pursuant to Section 3.4 or
11.6 not including any transfer. During the period of 15 days preceding any
Interest Payment Date or Maturity Date, the Company shall not be required to
register the transfer of or to exchange any Securities. In addition, the
Company shall not be required (i) to register the transfer of or to exchange any
Securities for a period of 15 days immediately preceding any date fixed for any
selection of Securities of such series to be redeemed and (ii) to register the
transfer of or to exchange any Securities selected for redemption, except the
unredeemed portion of any Security being redeemed in part.
Prior to due presentment of this 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 this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Securities endorsed thereon shall be governed by
and construed in accordance with the laws of the State of New York.
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture and the transaction complies
with the terms of Article VII of the Indenture, the predecessor corporation will
be released from those obligations.
The Trustee, in its individual or any other capacity, may make loans
to, accept deposits and pledges from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not Trustee.
Directors, officers, employees or shareholders of the Company shall
not have any liability for any obligations of the Company under the Securities,
the Indenture or the Security Documents or for any claim based on, in respect
of, or by reason of, such obligation or their creation. The Holder of this
Security, or any beneficial interests in this Security, hereby waives and
releases all such liability. Such waiver and release are part of the
consideration for the issue of the Securities.
Customary abbreviations may be used in the name of a holder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
34
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed in the Securities or as
contained in any notice of redemption, and reliance may be placed only on the
other identification numbers placed thereon.
SECTION 2.3. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities
issued under the Indenture
described herein.
FIRST NATIONAL BANK OF COMMERCE,
as Trustee
By_____________________________
Authorized Officer
Date of Authentication:
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $75,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities . Subject to
Section 3.5, the Securities will be represented by a Global Security in the name
of the Depositary or its nominee.
The Securities shall be known and designated as the "___% First
Mortgage Notes due 2001" of the Company. Their Stated Maturity shall be
_______________
35
2001, and they shall bear interest at the rate of ___% per annum, from
_________________ /2/ 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 ____________ and ____________ in each year, commencing
_____________ 1994, until the principal thereof is paid or made available for
payment.
The principal of and interest on the Securities 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 the
Securities 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 the
Security is in the form of a Global Security, immediately available funds for
the payment of the principal of (and premium, if any) 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. Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3. Execution, Authentication, Delivery
-----------------------------------
and Dating.
----------
The Securities 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, under its corporate seal reproduced thereon 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.
- --------------
/2/ Insert date of the Indenture or, if the Securities are to be sold "flat",
the expected closing date.
36
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwith-standing 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 Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authen-ticate and deliver such Securities as in
this Indenture provided and not otherwise.
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, 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, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities 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 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
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
37
SECTION 3.5. Registration; Registration of Transfer and
------------------------------------------
Exchange.
--------
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.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 6.2 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
Notwithstanding any other provision of this Section 3.5, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities may not be
transferred except as a whole by the Depositary to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary. Unless otherwise
provided as contemplated by Section 3.1 with respect to any series of Securities
evidenced in whole or in part by a Global Security, the Depositary may not sell,
assign, transfer or otherwise convey any beneficial interest in a Global
Security evidencing all or part of the Securities of such series unless such
beneficial interest is in an amount equal to an authorized denomination for the
Securities.
If at any time the Depositary for the Securities notifies the Company
that it is unwilling or unable to continue as a Depositary for the Securities or
if at any time the Depositary for Securities shall no longer be registered or in
good standing under the Exchange Act or other applicable statute or regulation,
the Company shall appoint a successor Depositary with respect to the Securities.
If a successor Depositary for the Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, the Company will execute, and the Trustee, upon the written request
or authorization of any officer of the Company, will authenticate and deliver
Securities in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security representing Securities in exchange for
such Global Security.
In the event that (i) the Company at any time and in its sole
discretion determines that the Securities issued in the form of a Global
Security shall no longer be represented by such Global Security or (ii) there
shall have occurred and be continuing a Default or an Event of Default, the
Company will execute, and the Trustee, upon the written request or authorization
of any officer of the Company, will authenticate and
38
deliver Securities in definitive form and in an aggregate principal amount equal
to the principal amount of the Global Security representing the Securities in
exchange for such Global Security.
The Depositary may surrender a Global Security in exchange, in whole
or in part, for Securities in definitive form on such terms as are acceptable to
the Company and such Depositary. Thereupon, the Company shall execute and the
Trustee shall authenticate and deliver, without charge,
(i) to each Person specified by the Depositary, a new Security
or Securities of the same series in definitive form in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the surrendered Global Security; and
(ii) to the Depositary, a new Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Global Security and the aggregate principal amount of
Securities of such series delivered in definitive form to Holders pursuant
to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Securities issued
in definitive form in exchange for a Global Security pursuant to this Section
3.4 shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities in definitive form to the Person in whose name such
Securities are so registered.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
39
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4 or 11.6 not involving any transfer.
During the period of 15 days preceding any Interest Payment Date or
Maturity Date, the Company shall not be required to register the transfer of or
to exchange any Securities. In addition, the Company shall not be required (i)
to register the transfer of or to exchange any Securities for a period of 15
days immediately preceding any date fixed for any selection of Securities of
such series to be redeemed and (ii) to register the transfer of or to exchange
any Securities selected for redemption, except the unredeemed portion of any
Security being redeemed in part.
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 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 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 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.
40
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 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 (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 of the amount of Defaulted Interest proposed to be paid on each
Security 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 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 (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 in any
other lawful manner not inconsistent with the requirements of any
securities
41
exchange on which the Securities 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.
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. 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.
42
SECTION 3.11. Paying Agent.
------------
The Company initially appoints the Trustee as a Paying Agent for the
Securities. The Company may have one or more additional Paying Agents at any
time, and may appoint itself as a Paying Agent. The Company shall deliver
notice in accordance with the terms of this Indenture of any future appointment
of a Paying Agent.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and issued (other
than (i) Securities 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 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 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;
43
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; 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 this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.7, the obligations of
the Trustee to any Authenticating Agent under Section 9.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section 4.1, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 6.26 shall survive.
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.
ARTICLE V
REDEMPTION
SECTION 5.1. Notices to Trustee.
------------------
If the Company elects to redeem Securities, it shall notify the
Trustee and the Paying Agent in writing of the redemption date and the principal
amount of Securities to be redeemed.
The Company shall give each notice provided for in this Section 5.1 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 redemption shall comply with the conditions contained herein
and in the Securities.
SECTION 5.2. Selection of Securities
-----------------------
To Be Redeemed.
--------------
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed in compliance with the requirements
of the principal national
44
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
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 5.3. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days prior to a redemption date,
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 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
45
(7) if less than all of the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of the Securities 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 5.4. 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 ________ 15 or ________ 15, then the interest
payable on such date shall be paid to the Holder of record on the next preceding
________ 1 or ________ 1.
SECTION 5.5. Deposit of Redemption Price.
---------------------------
At least one Business Day prior to the 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.
SECTION 5.6. 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
equal in principal amount to the unredeemed portion of the Security surrendered.
46
SECTION 5.7. Securities Exchange Act Requirements.
------------------------------------
In connection with any repurchase of Securities pursuant to this
Indenture, the Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such requirements, laws and regulations are applicable.
ARTICLE VI
COVENANTS
SECTION 6.1. Payment of Securities.
---------------------
The Company shall pay, or cause to be paid, the principal of and
interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture. If the Securities are not represented by one or
more global Securities, an installment of principal or interest 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.
The Company shall pay interest on overdue principal and (to the extent
permitted by law) on overdue installments of interest at a rate equal to ___%.
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.
47
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.
The Company hereby initially designates the Corporate Trust Office of
the Trustee located at ____________________ as such offices of the Company in
accordance with Sections 3.5 and 3.11 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
48
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 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 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 Securities Register.
49
(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 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 Securities Register maintained by the Securities 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 as contemplated
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
50
good faith opinion of management) repairs, renewals, replacements, additions,
betterments and improvements thereto.
(b) 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 Subsidiary to comply with
all statutes, laws, ordinances, or government rules and regulations to which it
is subject, non-compliance with which would 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) The Company shall not, and shall not permit any of its
Subsidiaries, directly or indirectly, to incur, create, assume, suffer to exist,
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 (i) 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 Securities and the
obligations of the Company and its Subsidiaries under the Indenture and the
Security Documents;
(ii) Indebtedness of the Company issued to any Wholly-Owned
Recourse Subsidiary; provided, that (a) any such Indebtedness is
unsecured and is subordinated to the Securities and (b) that any subsequent
issuance or transfer of any Capital Stock which results in any such Wholly-
Owned Subsidiary ceasing to be a Wholly-Owned Recourse Subsidiary or
any transfer of such Indebtedness by any Wholly-Owned Recourse
51
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 which is existing
immediately following the issuance of the Securities and the application of
the proceeds of the Securities (in no event shall this clause be deemed to
permit the 14.75% Senior Secured Notes due 1998 to remain outstanding);
(iv) Indebtedness arising in connection with the Credit
Facility at any time outstanding not to exceed the lesser of (1)
$30,000,000 and (2) amounts available to be borrowed under the Credit
Facility without causing a mandatory prepayment thereunder in the absence
of a waiver or consent;
(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 in connection with Industrial
Development Bonds (including Pollution Control Bonds) as such terms are
defined under the Internal Revenue Code, in an aggregate principal amount
not to exceed $5,000,000;
(vii) Indebtedness incurred with respect to the deferred
purchase price of machinery and equipment related to the business of the
Company or its 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; and
(viii) any renewal, extension or refinancing (and subsequent
renewals, extensions or refinancings) of any Indebtedness of the Company
permitted under the Indenture, in an amount not in excess of the amount
permitted under the Indenture at the time of such renewal, extension or
refinancing; provided, that Indebtedness which constitutes a renewal,
extension or refinancing of Indebtedness of the Company shall be pari passu
or subordinated in right of payment to the Securities; and, provided,
further, that in no event may Indebtedness of the Company be renewed,
extended or refinanced by means of Indebtedness of any Subsidiary of the
Company pursuant to this clause (viii).
(c) The limitation set forth in paragraph (a) shall not apply to:
(i) Indebtedness of a Wholly-Owned Recourse Subsidiary
issued to and held by the Company or any Wholly-Owned Recourse
Subsidiary of the Company; provided, that any subsequent issuance or
transfer of any Capital Stock which results in any such Wholly-Owned
Recourse Subsidiary ceasing to be a
52
Wholly-Owned Recourse Subsidiary or any transfer of such Indebtedness by
the Company or any Wholly-Owned Recourse Subsidiary to someone not a
Wholly-Owned Recourse Subsidiary shall, in each case, be deemed an
incurrence of Indebtedness under the Indenture;
(ii) Indebtedness of the Company's Subsidiaries which is
existing immediately following the issuance of the Securities;
(iii) Non-Recourse Indebtedness incurred by Non-Recourse
Subsidiaries; and
(iv) any renewal, extension or refinancing (and subsequent
renewals, extensions or refinancings) of any Indebtedness of the Company's
Subsidiaries permitted under the Indenture, in an amount not in excess of
the amount permitted under the Indenture at the time of such renewal,
extension or refinancing; provided, that Indebtedness which constitutes a
renewal, extension or refinancing of Indebtedness of a Subsidiary of the
Company shall be pari passu or subordinated in right of payment to the
obligations under the Subsidiary Guarantee.
SECTION 6.10. Limitation on Liens.
-------------------
The Company shall not, and shall not permit, cause or suffer any
of its Subsidiaries to, create, incur, assume or suffer to exist any Liens
of any kind upon any property or assets of the Company or any Subsidiary,
whether now owned or hereafter acquired, except for:
(i) Liens in favor of the Collateral Agent or the Holders,
including Liens created by the Securities, the Indenture and the Security
Documents;
(ii) Liens on the Lender Secured Property to secure the Credit
Facility and the Tulsa Facility;
(iii) Permitted Liens;
(iv) Liens on the property of the Company or any of its
Subsidiaries created solely for the purpose of securing purchase money
obligations for property acquired in the ordinary course of business;
provided, that (a) such property so acquired for use in the ordinary course
of business is for use in lines of business related to the Company's or
its Subsidiaries' business as it exists immediately prior to the issuance
of the related debt, (b) no such Lien shall extend to or cover other
property or assets of the Company and its Subsidiaries other than the
respective property or assets so acquired and (c) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the original
purchase price of such property or assets;
53
(v) Liens on the assets of any entity existing at the time
such entity or assets are acquired by the Company or any of its
Subsidiaries, whether by merger, consolidation, purchase of assets or
otherwise; provided, 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 Subsidiaries and (b) do not extend to
any other property of the Company or any of its Subsidiaries;
(vi) Liens in existence on the date of the Indenture
(excluding Liens relating to all or any portion of the 14.75% Senior
Secured Notes due 1998);
(vii) Liens relating to the real and chattel mortgages on
record in certain parishes of the State of Louisiana with respect to the
Indenture dated September 5, 1986 between the Company and First National
Bank of Commerce, as trustee; provided, that such Liens (a) shall not
secure any Indebtedness of the Company and (b) the Company shall use its
best efforts to record the releases of such Lien, as soon as practicable.
(viii) Liens securing Industrial Development Bonds (including
Pollution Control Bonds) as such terms are defined in the Internal Revenue
Code; provided, that any Lien permitted by this clause (viii) shall not
extend to any other property of the Company or any of its Subsidiaries; and
(ix) 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 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).
SECTION 6.11. Limitation on the Issuance of
-----------------------------
Preferred Stock by Subsidiaries.
-------------------------------
The Company shall not permit any of its 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 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;
54
(ii) Preferred Stock issued by a Person prior to the time (a)
such Person became a Subsidiary, (b) such Person merges with or into a
Subsidiary or (c) another Subsidiary merges with or into such Person (in a
transaction in which such Person becomes a 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 are used to refinance Indebtedness (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.
SECTION 6.12. Transfer of Assets to Subsidiaries.
----------------------------------
Notwithstanding the covenant restricting Asset Sales, the Company
shall not, and shall not permit any of its Subsidiaries to, make any sale,
transfer or other disposition (including by way of Sale and Leaseback
Transaction) to any of its Subsidiaries (other than in the ordinary course
of business) of (i) any assets of the Company or its Subsidiaries or (ii)
any shares of Capital Stock of any of the Company's Subsidiaries directly
owned by the Company, in either case with an aggregate fair market value in
excess of $250,000 (as determined in good faith by an Independent Appraiser
or Independent Financial Adviser, as the circumstances dictate) unless the
Company or its Subsidiaries shall receive consideration from the Subsidiary
acquiring such assets or Capital Stock by way of any such sale, transfer or
otherwise from the Company in cash or Cash Equivalents equal to the amount
in excess of $250,000.
SECTION 6.13. Limitations on Restricted Payments.
----------------------------------
Neither the Company nor any of its 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 or its
Subsidiaries 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; or (iii) the aggregate amount of all Restricted Payments
made by the Company or any of its 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 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 less than zero, minus 100% of
the amount of
55
such loss) commencing with the first full fiscal quarter after the Issue
Date to and including the fiscal quarter ended immediately prior to the
date of such calculation; and
(ii) the aggregate net cash proceeds received by the Company
after the Issue Date from the issuance or sale (other than to a 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. 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
accreted principal amount (or, if discounted Indebtedness, the accredited
principal 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); or (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 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).
SECTION 6.14. Limitations on Transactions
---------------------------
with Stockholders and Affiliates.
--------------------------------
(a) The Company shall not, and shall not permit any of its
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 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 Subsidiary,
such approval to be evidenced by a Board Resolution.
56
(b) The provisions of paragraph (a) will not apply to:
(i) Restricted Payments otherwise permitted pursuant to
the Indenture;
(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 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) annual payments in an aggregate amount not to exceed
$150,000 under the Service Agreement; and
(v) payments for goods and services purchased in the
ordinary course of business on an arms-length basis.
SECTION 6.15. Restrictions on Assets Sales.
----------------------------
(a) The Company shall not, and shall not permit any of its Recourse
Subsidiaries to, make any Asset Sale, unless (i) the Company (or its Subsidiary,
as the case may be) receives consideration at the time of such Asset Sale at
least equal to the fair market value of the Capital Stock or assets to be sold
(as determined in good faith by its Board of Directors); (ii) at least 85% of
the consideration therefor is received by the Company or such Subsidiary in the
form of cash or Cash Equivalents; and (iii) 100% of the consideration therefor
is received by the Company or such Subsidiary in the form of cash, Cash
Equivalents or instruments with respect to which a security interest therein
may be perfected through possession.
(b) Within six months of the date that the sum of the Net Cash
Proceeds of Asset Sales (less the sum of the Net Cash Proceeds (i) previously
applied to the acquisition of property and assets used in lines of business
related to the Company's or the Subsidiaries' business at such time (each a
"Permitted Related Acquisition") and (ii) from the sale of Obsolete Assets not
exceeding an aggregate fair market value of $1,000,000 in any year), together
with Condemnation Proceeds and Net Insurance Awards (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 to purchase
Securities (an "Asset Sale Offer") from all Holders 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 or (C) any
57
combination of clauses (A) and (B) above; provided, that (i) property acquired
at any time as a Permitted Related Acquisition 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, the
Collateral Proceeds, together with all Condemnation Proceeds and Net Insurance
Awards received by the Collateral Agent, will be retained by the Collateral
Agent in the Collateral Account; and (iii) notwithstanding the foregoing, the
Company and its Subsidiaries, in the aggregate, shall be permitted to retain
$1,000,000 of Net Cash Proceeds from Asset Sales. The Company and its
Subsidiaries collectively may retain the Net Cash Proceeds from the sale of
Obsolete Assets in an aggregate amount not to exceed $1,000,000 in any year.
(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 all Holders of Securities,
with a copy to the Trustee and the Paying Agent, not more than 195 days 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"). 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
58
immediately preceding the Asset Sale Payment Date, a telegram, 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;
(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 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 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
59
regulations and shall not be deemed to have breached its obligations under this
Section 6.15 by virtue thereof.
SECTION 6.16. Limitation on Dividend and Other Payment
----------------------------------------
Restrictions Affecting Subsidiaries.
-----------------------------------
The Company shall not, and shall not permit any of its 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 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 Subsidiaries; (c) make loans or advances to the
Company or any of the Company's Subsidiaries; or, (d) transfer any of its assets
to the Company or any of the Company's Subsidiaries, other than by reason of (i)
the Securities, the Indenture and the Security Documents; (ii) restrictions
existing under agreements in effect on the Issue Date, including, without
limitation, restrictions under the Credit Facility as in effect on the Issue
Date; (iii) consensual encumbrances or restrictions binding upon any Person at
the time such Person becomes a Subsidiary of the Company so long as such
encumbrances or restrictions are not created, incurred or assumed in
contemplation of such Person becoming a 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 Subsidiary than those under the agreement evidencing the
refinanced Indebtedness; (v) customary non-assignment or sublease provisions of
any lease governing a leasehold interest of the Company or any of its
Subsidiaries; (vi) customary restrictions relating to assets acquired with the
proceeds of a purchase money obligation; (vii) customary non-assignment
provisions restricting subletting or assignment of any lease or assignment
entered into by a Subsidiary; and (viii) any restrictions with respect to a
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 Subsidiary.
SECTION 6.17. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
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 Subsidiaries or between Wholly-Owned Subsidiaries of the Company, as the
case may be; and (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.
60
SECTION 6.18. Limitation on Investment, Loans and Advances.
--------------------------------------------
The Company shall not, and shall not permit any of its Subsidiaries
to, make any advances or loans to, or Investments (by way of transfers of
property, contributions to capital, acquisitions of stock, securities or
evidences of indebtedness, or otherwise) in any other Person, except:
(i) the Company may make advances and loans to, and
Investments in, any Wholly-Owned Recourse Subsidiary and any Subsidiary may
make advances or loans to, and Investments in, the Company or any Wholly-
Owned Recourse Subsidiary of the Company;
(ii) the Company and its Subsidiaries may acquire and hold
cash and Cash Equivalents;
(iii) the Company and its Subsidiaries may make advances and
loans to officers and employees in the ordinary course of business not to
exceed $50,000 to any one officer or employee or $100,000 in the aggregate
at any one time outstanding;
(iv) the Company and its Subsidiaries may make payroll
advances in the ordinary course of business;
(v) the Company may make advances or loans in connection with
Currency Agreements provided such agreements are made in the ordinary
course of business;
(vi) the Company may make advances or loans in connection with
Interest Rate Agreements provided such agreements are made in the ordinary
course of business;
(vii) the Company and its Subsidiaries may make loans to, or
Investments in, any Person, including Non-Recourse Subsidiaries, not to
exceed at any time outstanding an aggregate amount equal to $250,000 with
respect to loans to, and Investments in, all such Persons (the value of
any such loans and Investments shall be the original cost less the amount
returned in cash);
(viii) the Company and its Subsidiaries may make Investments
in exchange for assets sold or otherwise disposed of in accordance with
Section 6.15;
(ix) the Company and its Subsidiaries may make Investments in
the form of advances, extensions of credit, progress payments and
prepayments for asset purchases by it in the ordinary course of
business; and
(x) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in satisfaction
or partial satisfaction
61
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss.
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
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 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 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 Securities tendered shall be accepted for
payment;
(ii) the purchase price (including the amount of accrued
interest, if any) for each Security and the Change of Control 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
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(v) that Holders electing to have Securities purchased pursuant
to a Change of Control 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
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
62
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;
(vii) that Holders whose Securities are purchased only in part shall
be issued Securities equal in principal amount to the unpurchased portion
of the 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 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 Securities or portions thereof so tendered and
accepted and (iii) deliver to the Trustee 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 Change of Control Payment Date to the
Depositary) to the Holders of Securities so accepted 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 Security equal in principal amount to any
unpurchased portion of the Security 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 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 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.
63
SECTION 6.20. Limitations as to Non-Recourse Subsidiaries.
-------------------------------------------
The Company shall not permit any Non-Recourse Subsidiary to create,
assume, incur, guarantee or otherwise become liable in respect to any
Indebtedness unless the lender in respect thereof has effectively waived all
claims and/or recourse on or in respect of such Indebtedness against the Company
or any other Subsidiary of the Company, including, without limitation, a waiver
by such lender of the benefits of the provisions of Section 1111(b) of the
Bankruptcy Code (Title 11, United States Code), as amended, and the Company has
delivered to the Trustee an Opinion of Counsel (by a law firm of national
repute) and a Board Resolution confirming the foregoing, in each case in form
and substance satisfactory to the Trustee. Neither the Company nor any of its
Subsidiaries (other than Non-Recourse Subsidiaries) will sell, lease, convey or
otherwise transfer to any Non-Recourse Subsidiary any asset which is essential
to the steelmaking operations of the Company or its Subsidiaries (other than
Non-Recourse Subsidiaries). The Company will not permit any Non-Recourse
Subsidiary to acquire any such essential asset, and the Company and its
Subsidiaries will not purchase any Non-Recourse Subsidiary, unless in the
judgment of the Board of Directors of the Company the creation and operation of
the Non-Recourse Subsidiary and its acquisition of such assets are neither
intended nor reasonably expected to adversely affect the financial condition,
business, prospects or operations of the Company and its Subsidiaries (other
than Non-Recourse Subsidiaries).
SECTION 6.21. Impairment of Security Interest.
-------------------------------
The Company shall not, and shall not permit any of its Subsidiaries
to, take or omit to take any action, which action or omission would have the
result of affecting or impairing the security interest in favor of the
Collateral Agent with respect to the Collateral, and the Company shall not
grant to any Person (other than the Collateral Agent 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.
----------------------
The Company shall not, and shall not permit any of its 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 Securities in accordance with the terms thereof or hereof, as in
effect from time to time, 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, except as expressly permitted hereby or by the Security Documents.
64
SECTION 6.23. Amendment to Security Documents.
-------------------------------
The Company shall not, and shall not permit any of its other
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 Securities in the manner
described in the Prospectus. 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.
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
65
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, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
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.
ARTICLE VII
SUCCESSOR CORPORATION
SECTION 7.1. When Company May Merge, etc.
----------------------------
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 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:
66
(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;
(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;
(v) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or the Person to whom such sale or
conveyance shall have been made, shall have a Consolidated Net Worth
immediately after the 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) equal to or greater than the Consolidated Net Worth of the
Company immediately preceding the transaction; and
(vi) 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
67
(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.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Events of Default.
-----------------
"Event of Default", wherever used herein, 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
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 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 five days; or
(iv) failure to observe or perform any covenant,
condition or agreement in the Securities, the Indenture or the Security
Documents (other than as described in clause (i), (ii) or (iii)) 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,
68
or has been received by the Company and the Trustee from the
Holders of at least 25% of the principal amount of the Securities then
outstanding, 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 exist
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
(v) a default under any bond, debenture, note or other
evidence of Indebtedness for money borrowed (other than the Securities) by
the Company or any Recourse Subsidiary of the Company or under any
mortgage, indenture or instrument (other than this Indenture or the
Securities) under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
(including, in each case, Guarantees of the Company and its Recourse
Subsidiaries), whether such Indebtedness or Guarantee now exists or shall
hereafter be created, which default shall constitute a failure to pay any
portion of the principal of such Indebtedness in a principal amount of at
least $1,000,000 when due and payable after the expiration of any
applicable grace period with respect thereto; or
(vi) a default under any bond, debenture, note or other
evidence of Indebtedness for money borrowed (other than the Securities) by
the Company or any Recourse Subsidiary of the Company or under any
mortgage, indenture or instrument (other than this Indenture or the
Securities) under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
(including, in each case, Guarantees of the Company and its Recourse
Subsidiaries), whether such Indebtedness or Guarantee now exists or shall
hereafter be created if (i) as a result of such event of default the
maturity of such Indebtedness has been accelerated prior to its stated
maturity and (ii) the principal amount of such Indebtedness, together with
the principal amount of any other Indebtedness of the Company and its
Subsidiaries the maturity of which has been so accelerated, aggregates
$1,000,000 or more; or
(vii) the Company or any Subsidiary (other than a Non-Recourse
Subsidiary, unless such action or proceeding adversely affects the
interests of the Company or any Recourse Subsidiary) 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
69
(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 adversely affects the
interests of the Company or any Recourse Subsidiary and in any
such case the order or decree remains unstayed and in effect for 60
days; or
(ix) the Company or any 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 $1,500,000, and such judgments shall
remain in force, undischarged, unsatisfied, unstayed and unbonded for more
than 30 days; or
(x) the Security Documents shall cease, for any reason, to be
in full force and effect or shall cease to be effective to grant a first
priority perfected Lien on the Collateral, subject to the exceptions
permitted by Section 6.10.
SECTION 8.2. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
subparagraph (vii) or (viii) of Section 8.1) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities may declare the principal of and
accrued interest on all the Securities 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) or (viii) 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 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, 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;
(b) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities;
70
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities;
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, other than the non-payment of the
principal of Securities which have 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
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
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 the Securities, and, in addition
thereto, 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.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders 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
71
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), 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
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities 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 may be prosecuted and enforced by the Trustee
without the possession of any of the Securities 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
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
72
Securities 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 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;
(ii) the Holders of not less than 25% in principal amount of the
Outstanding Securities 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
73
(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;
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.
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
74
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 any Security
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 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; 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
(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 may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(i) in the payment of the principal of or interest on any
Security; or
75
(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 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.
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, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company (or any other
obligor upon the 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, and such further amount as shall be sufficient to cover the costs
and expenses of collection,
76
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, 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.
SECTION 9.2. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default hereunder 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;
77
(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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(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; and
(h) subject to Section 11.2 hereof, the Trustee may (but shall not
be obligated to), without the consent of the Holders, 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 Securities
at the time outstanding (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,
78
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, 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. The Trustee shall not
be accountable for the use or application by the Company of Securities or
the proceeds thereof.
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),
79
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 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 York City or 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
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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.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 9.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security 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, or (2) subject to Section 8.14, 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
removal of the Trustee 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
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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 and each appointment of a successor Trustee to all
Holders 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 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 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 the retiring Trustee; but, on request of the Company or the
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 the 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.
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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.
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 the 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 which shall
be authorized to act on behalf of the Trustee to authenticate Securities 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
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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 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 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 is made pursuant to this Section 9.14, the
Securities 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 described in the within-mentioned
Indenture.
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities
issued under the Indenture
described herein.
FIRST NATIONAL BANK
OF COMMERCE, As Trustee
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By_______________________________
As Authenticating Agent
By_______________________________
Authorized Officer
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 furnish or cause to be furnished to the Trustee:
(i) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date; and
(ii) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content 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 contained in the most
recent list furnished to the Trustee as provided in Section 10.1 and the names
and addresses of Holders 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 to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, 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
85
information as to names and addresses of Holders made pursuant
to Section 312 of the Trust Indenture Act.
SECTION 10.3. Reports by Trustee.
------------------
(a) Within 60 days after each May 15 beginning with May 15, 1994,
the Trustee shall transmit to Holders 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 the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the 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, 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 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, 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:
86
(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
(ii) to add to the covenants of the Company for the benefit of
the Holders, 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 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 as additional security for the payment and performance of the
Company's obligations under this Indenture, 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.
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, by Act of said Holders delivered
to the Company and the Trustee, the Company, 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 or the Security Documents or of modifying in any manner the rights of
the Holders under this Indenture, the Securities 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
87
(ii) reduce the percentage in principal amount of the
Outstanding Securities, 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 or the Liens in
favor of the Trustee, the Collateral Agent and the Holders in a manner
adverse to the Holders or release all or substantially all of the
Collateral.
(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 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.
88
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 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 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 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 and the performance of all
other obligations of the Company to the Holders or the Trustee under this
Indenture and the Securities (the "Company Obligations"), the Company and the
Trustee have simultaneously with the execution of this Indenture entered into
the Company Security Agreement and certain Mortgages pursuant to which the
Company has granted to the Trustee, in its capacity as Collateral Agent, for the
benefit of the Holders a first priority Lien on and security interest in the
Collateral described therein, subject to the exceptions permitted by Section
6.10. Simultaneously with the execution of the Indenture, or if later, the date
on which a Person becomes a Subsidiary of the Company (with the exception of
Non-Recourse Subsidiaries), each Subsidiary of the Company shall guarantee the
Company Obligations pursuant to a Subsidiary Guarantee. On the Issue Date, each
of the Subsidiaries of the Company shall enter into a Subsidiary Security
Agreement and a Mortgage (if such Subsidiary holds title to real property) to
secure its obligations under its executed Subsidiary Guarantee, pursuant to
which such Subsidiary shall grant to the Trustee for the benefit of the Holders
a first priority Lien on and security interest in the Collateral described in
such Subsidiary Security Agreement or Mortgage(s), subject to the exceptions
permitted by Section 6.10. Subsequent to the Issue Date, the Company and its
Subsidiaries (with the 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
89
Subsidiary Security Agreement, as the case may be), Mortgages, or other
agreements necessary to create an effective security interest in the entirety of
their real property, machinery, equipment (including, without limitation, (i)
furniture, furnishings, tools, lubricants, spare parts, shelving, displays,
cases, accessories, motors and engines, (ii) bearings, rolls, guides and stores,
(iii) certain [ ] classified on the balance sheet of the Company as
inventory, (iv) all attachments, components, parts and accessories installed
thereon or affixed thereto and (v) equipment, as such term is defined in the
Uniform Commercial Code as from time to time is in effect in the State of New
York), Patents, Patent Licenses, Trade Secrets, Trademarks and Trademark
Licenses. The Trustee, the Company and the Subsidiaries hereby agree that the
Trustee holds the Collateral in trust for the benefit of the Holders pursuant to
the terms of the Security Documents.
(b) The Trustee is authorized and directed by the Holders to enter
into and comply with the provisions of the Release Agreement in connection with
any sale or other disposition of the Collateral subject to the TBT Lease.
Compliance with the Release 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 sold or otherwise disposed of in a commercially
unreasonable manner. Under no circumstances will any Holder or any portion of
the Collateral have any obligation, or be in any manner responsible to the
Company, the Tax Lessor, Meyers, Voest-Alpine or VAIC in respect of any loss
anticipated in connection with the TBT Lease and neither any portion of the
Collateral nor any Holder shall be liable to the Company, the Tax Lessor,
Meyers, Voest-Alpine or VAIC under the TBT Lease for any cost, damage,
liability, tax or indemnity, or other expense incurred by any of them relating
to the TBT Lease or any portion of the Collateral subject to the TBT Lease or
otherwise. The Trustee may, but shall not be required to, obtain the Opinions
of Counsel referred to in the Release Agreement without direction from the
Holders; provided, that the Trustee shall upon direction of the Holders of a
majority in principal amount of the Outstanding Securities obtain an Opinion of
Counsel from a law firm designated in such direction and shall be protected in
relying and acting thereon.
(c) The Trustee is authorized and directed by the Holders 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 sold or otherwise disposed of in a commercially
unreasonable 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 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.
90
(d) 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 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 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.
(b) The Company shall furnish to the Trustee at 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. Promptly after execution and delivery of this Indenture,
the Company shall deliver the opinion(s) required by Section 314(b) of the Trust
Indenture Act. Subsequent to the Issue Date, 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 ____________ 1 in
each year, beginning with _______________ 1, 1994, 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
91
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 Security Documents shall be effective as against the Holders
of the Securities.
(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 held by the Trustee), 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.
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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 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 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 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 will not interfere with or impede the Trustee's
ability to realize the value of the remaining Collateral and will not
impair the maintenance and operation of the remaining Collateral, (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
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(iii) Other Documents. All documentation 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 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, all or any part of the Collateral, upon
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 or
other governmental authority 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 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 or other
governmental authority 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.
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 conditions precedent have been complied with, the
Trustee shall cause to be released and reconveyed to the Company, the Released
Interests.
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, not exceeding
individually, in fair market value, $25,000.
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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.
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
95
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.
ARTICLE XIII
APPLICATION OF TRUST MONEYS
SECTION 13.1. Collateral Account.
------------------
On the Issue Date 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
96
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 there is no outstanding Indebtedness, other
than costs for which payment is being requested, known to the Company
or its Subsidiary, after due inquiry, for the purchase price or
construction of such repairs, rebuildings or replacements, or for
labor, wages, materials or supplies in connection with the making
thereof, which, if unpaid, might become the basis of a vendors',
mechanics', laborers', materialmen's, statutory or other similar Lien
upon any of such repairs, rebuildings or replacement, which Lien
might, in the opinion of the signers of such certificate, materially
impair the security afforded by such repairs, rebuildings or
replacements;
(iv) 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;
(v) whether any part of such repairs, rebuildings or
replacements within six months before the date of acquisition thereof
by the Company or its Subsidiary has been used or operated by others
than the Company or its Subsidiary in a business similar to that in
which such property has been or is to be used or operated by the
Company or its Subsidiary, and whether the fair value to the Company
or its Subsidiary, at the date of such acquisition of such part of
such repairs, rebuildings or replacement is at least $25,000, or 1% of
the aggregate principal amount of the Outstanding Securities;
(vi) that no Default or Event of Default shall have
occurred and be continuing; and
(vii) that all conditions precedent herein provided for
relating to such withdrawal and payment have been complied with;
(b) all documentation required under Section 314(d) of the Trust
Indenture Act; and
(c) an Opinion of Counsel substantially stating:
(i) 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
97
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;
(ii) that the Trustee has a valid and perfected Lien on
such repairs, rebuilding and replacements, that the same and every
part thereof are subject to no Liens prior to the Lien of the Security
Documents, except Liens of the type permitted under the Security
Documents to which the property so destroyed or damaged shall have
been subject at the time of such destruction or damage; and
(iii) that all of the Company's or its Subsidiary's
right, title and interest in and to said repairs, rebuildings or
replacements, or combination thereof, are then subject to the Lien of
the Security Documents.
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.
------------------------------------------------
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:
(i) that no Event of Default exists;
98
(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 the 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 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) 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) describe with particularity the Related Trust Moneys, (iv) describe
with particularity the Permitted Related Acquisition to be made with
respect to the Released Trust Moneys and (v) be accompanied by a
counterpart of the instruments proposed to give effect to the release fully
executed and acknowledged (if applicable) by all parties thereto other than
the Trustee;
99
(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 documentation 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, (iii)
describe with particularity the Retained Trust Moneys and the Asset Sale
from which such Retained Trust Moneys were held as Collateral and (iv) be
accompanied by a counterpart of the instruments proposed to give effect to
the release fully executed and acknowledged (if applicable) by all parties
thereto other than the Trustee;
(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 (including, but not limited to, a specific statement
that (A) the Net Cash Proceeds from the sale of Obsolete Assets retained by
the Company and its Subsidiaries does not exceed $1,000,000 in the
aggregate in any given year and (B)
100
from the Issue Date, the aggregate of the Net Cash Proceeds of Asset Sales
(other than from Asset Sales relating to Obsolete Assets) retained by the
Companies and its Subsidiaries does not exceed $1,000,000, regardless of
whether the funds retained by the Company and its Subsidiaries constitute
Collateral Proceeds or Non-Collateral Proceeds), (ii) there is no Default
or Event of Default in effect or continuing on 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 documentation 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.Withdrawal of Trust Moneys on Basis of Retirement of
----------------------------------------------------
Securities.
----------
Trust Moneys may be withdrawn by the Company to be applied to the
redemption and retirement of the Securities 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) a Board Resolution requesting the withdrawal and payment of a
specified amount of Trust Moneys;
(b) an Officer's Certificate, dated not more than 30 days prior to
ate of the application for the withdrawal and payment of such Trust
s, certifying that (i) there is no Default or Event of Default in
t or continuing on the date thereof and (ii) all conditions precedent
n provided relating to such withdrawal and application have been
ied with; and
(c) an Opinion of Counsel stating that the Trust Moneys whose
withdrawal and payment is then requested may be lawfully paid over under
this Section 13.6 and that all conditions precedent herein provided
relating to such withdrawal have been complied with.
101
Upon compliance with the foregoing provisions of this Indenture, the
Trustee shall apply the Trust Moneys as directed and specified by such Company
Order.
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.
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 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, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities
(other than those specified in the next sentence) on the date the applicable
conditions set forth below are satisfied (hereinafter, "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 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
102
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, (i) the Company shall be released from its
obligations under Sections 6.9 through 6.25 and (ii) the occurrence of an event
specified in Section 8.1(iv) (with respect to any of Section 6.9 through 6.25),
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 to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities 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:
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 such
Securities, (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 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 of the Securities,
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
103
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 to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-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 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 qualified as, a regulated investment company under the Investment
Company Act of 1940, (ii) the Holders have a valid first priority perfected
security interest in the trust funds, and (iii) after passage of 123 days
following the deposit (except, with respect to any trust funds for the
account of any Holder 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, the Trustee will hold, for the
benefit of the Holders, 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 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 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;
104
(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 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;
(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 have been
complied with.
SECTION 14.5. Deposited Money and U.S. Government Obligations to be held in
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Trust; Other Miscellaneous Provisions.
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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 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.
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.
105
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 any Securities for
which money or Government Obligations have been deposited pursuant to Section
14.4.
SECTION 14.6. Reinstatement.
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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 the
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.
106
______________________
THUS DONE AND PASSED in multiple originals, on the date first above
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written, at Edgard, Louisiana, in the presence of the undersigned competent
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witnesses, and of the undersigned Notary Public, after due reading of the whole.
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WITNESSES TO ALL BAYOU STEEL CORPORATION
- ----------------
SIGNATURES:
- ----------
- ----------------------------------- BY:---------------------------------
PRINTED NAME: PRINTED NAME:
- ----------------------------------- ---------------------------------
TITLE: -------------
FIRST NATIONAL BANK OF
COMMERCE,
AS TRUSTEE
- ----------------------------- BY: --------------------------------
PRINTED NAME: PRINTED NAME:
- ---------------------------- --------------------------------
TITLE: ------------
ACCEPTED TO AND AGREED
----------- ------
TO BY:
RIVER ROAD REALTY
CORPORATION
- ----------- ----------------------
BY:
----------------------
PRINTED NAME:
----------------------
TITLE:
----------------------
BAYOU STEEL SCRAP
----------------------
CORPORATION
107
BY:
---------------------------
PRINTED NAME:
---------------------------
TITLE:
--------------------
----------------
NOTARY PUBLIC
PRINTED NAME:
------------------------
MY COMMISSION IS ISSUED FOR LIFE.
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