EXHIBIT 4.7
EXECUTION COPY
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ISPAT INLAND ULC,
AS ISSUER,
THE GUARANTORS PARTY HERETO,
AS GUARANTORS,
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE
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INDENTURE
DATED AS OF MARCH 25, 2004
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SENIOR SECURED FLOATING RATE NOTES DUE 2010
9 3/4% SENIOR SECURED NOTES DUE 2014
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1)................................................................ 7.10
(a)(2)................................................................ 7.10
(a)(3)................................................................ N.A.
(a)(4)................................................................ N.A.
(a)(5)................................................................ N.A.
(b)................................................................... 7.08; 7.10
(b)(1)................................................................ 7.10
(c)................................................................... N.A.
311 (a)................................................................... 7.11
(b)................................................................... 7.11
(c)................................................................... N.A.
312 (a)................................................................... 2.06
(b)................................................................... 11.03
(c)................................................................... 11.03
313 (a)................................................................... 7.06
(b)(1)................................................................ N.A.
(b)(2)................................................................ 7.06
(c)................................................................... 7.06; 11.02
(d)................................................................... 7.06
314 (a)................................................................... 4.02; 4.04; 11.02
(b)................................................................... N.A.
(c)(1)................................................................ 11.04
(c)(2)................................................................ 11.04
(c)(3)................................................................ N.A.
(d)................................................................... N.A.
(e)................................................................... 11.05
(f)................................................................... N.A.
315 (a)................................................................... 7.01(b)
(b)................................................................... 7.05; 11.02
(c)................................................................... 7.01(a)
(d)................................................................... 7.01(c)
(e)................................................................... 6.12
316 (a) (last sentence)................................................... 2.10
(a)(1)(A)............................................................. 6.05
(a)(1)(B)............................................................. 6.04
(a)(2)................................................................ N.A.
(b)................................................................... 6.08
(c)................................................................... 8.04
317 (a)(1)................................................................ 6.09
(a)(2)................................................................ 6.10
(b)................................................................... 2.05; 7.12
318 (a)................................................................... 11.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions................................................................... 1
SECTION 1.02 Other Definitions............................................................. 40
SECTION 1.03 Incorporation by Reference of Trust Indenture Act............................. 41
SECTION 1.04 Rules of Construction......................................................... 41
ARTICLE TWO
THE NOTES
SECTION 2.01 Amount of Notes............................................................... 42
SECTION 2.02 Form and Dating............................................................... 43
SECTION 2.03 Execution and Authentication.................................................. 43
SECTION 2.04 Registrar, Paying Agent and Calculation Agent................................. 44
SECTION 2.05 Paying Agent To Hold Money in Trust........................................... 45
SECTION 2.06 Holder Lists.................................................................. 45
SECTION 2.07 Transfer and Exchange......................................................... 45
SECTION 2.08 Replacement Notes............................................................. 46
SECTION 2.09 Outstanding Notes............................................................. 47
SECTION 2.10 Treasury Notes................................................................ 47
SECTION 2.11 Temporary Notes............................................................... 47
SECTION 2.12 Cancellation.................................................................. 48
SECTION 2.13 Defaulted Interest............................................................ 48
SECTION 2.14 CUSIP Number.................................................................. 48
SECTION 2.15 Deposit of Moneys............................................................. 49
SECTION 2.16 Book-Entry Provisions for Global Notes........................................ 49
SECTION 2.17 Special Transfer Provisions................................................... 51
SECTION 2.18 Computation of Interest....................................................... 54
SECTION 2.19 Issuance of Additional Notes.................................................. 54
ARTICLE THREE
REDEMPTION
SECTION 3.01 Election To Redeem; Notices to Trustee........................................ 55
SECTION 3.02 Selection by Trustee of Notes To Be Redeemed.................................. 55
SECTION 3.03 Notice of Redemption.......................................................... 55
SECTION 3.04 Effect of Notice of Redemption................................................ 56
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SECTION 3.05 Deposit of Redemption Price................................................... 56
SECTION 3.06 Notes Redeemed in Part........................................................ 57
SECTION 3.07 Optional Redemption of Fixed Rate Notes....................................... 57
SECTION 3.08 Optional Redemption of Floating Rate Notes.................................... 58
SECTION 3.09 Purchase of Notes............................................................. 58
SECTION 3.10 Redemption for Changes in Withholding Tax..................................... 59
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Notes.............................................................. 59
SECTION 4.02 Reports to Holders............................................................ 60
SECTION 4.03 Waiver of Stay, Extension or Usury Laws....................................... 60
SECTION 4.04 Compliance Certificate........................................................ 60
SECTION 4.05 Taxes......................................................................... 61
SECTION 4.06 Limitation on Indebtedness.................................................... 61
SECTION 4.07 Limitation on Restricted Payments............................................. 65
SECTION 4.08 Limitation on Liens........................................................... 68
SECTION 4.09 Limitation on Affiliate Transactions.......................................... 69
SECTION 4.10 Limitation on Sales of Assets and Subsidiary Stock............................ 71
SECTION 4.11 Limitation on the Sale or Issuance of Capital Stock of Restricted
Subsidiaries............................................................... 74
SECTION 4.12 Limitation on Restrictions on Distributions from Restricted Subsidiaries...... 75
SECTION 4.13 Legal Existence............................................................... 77
SECTION 4.14 Change of Control Offer....................................................... 77
SECTION 4.15 Limitation on Sale/Leaseback Transactions..................................... 79
SECTION 4.16 Limitation on Business Activities............................................. 79
SECTION 4.17 Limitation on Amendment of Mortgage........................................... 79
SECTION 4.18 Payment of Additional Amounts................................................. 79
SECTION 4.19 Limitation on Business and Activities of the Issuer and the Finco
Guarantors Prior to a Permitted Finco Collapse Transaction................. 82
SECTION 4.20 Limitation on Business and Activities of Issuer Following a Permitted
Finco Collapse Transaction................................................. 85
SECTION 4.21 Limitation on Steelmaking Business............................................ 86
SECTION 4.22 Limitation on Merger or Consolidation of Parent............................... 86
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Limitation on Mergers, Amalgamations, Consolidations, Etc..................... 87
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default............................................................. 89
SECTION 6.02 Acceleration.................................................................. 92
SECTION 6.03 Other Remedies................................................................ 92
SECTION 6.04 Waiver of Past Defaults and Events of Default................................. 93
SECTION 6.05 Control by Majority........................................................... 93
SECTION 6.06 Limitation on Suits........................................................... 93
SECTION 6.07 No Personal Liability of Directors, Officers, Employees and Stockholders...... 94
SECTION 6.08 Rights of Holders To Receive Payment.......................................... 94
SECTION 6.09 Collection Suit by Trustee.................................................... 94
SECTION 6.10 Trustee May File Proofs of Claim.............................................. 95
SECTION 6.11 Priorities.................................................................... 95
SECTION 6.12 Undertaking for Costs......................................................... 95
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee............................................................. 96
SECTION 7.02 Rights of Trustee............................................................. 97
SECTION 7.03 Individual Rights of Trustee.................................................. 98
SECTION 7.04 Trustee's Disclaimer.......................................................... 98
SECTION 7.05 Notice of Defaults............................................................ 99
SECTION 7.06 Reports by Trustee to Holders................................................. 99
SECTION 7.07 Compensation and Indemnity.................................................... 99
SECTION 7.08 Replacement of Trustee........................................................ 100
SECTION 7.09 Successor Trustee by Consolidation, Merger, Etc............................... 101
SECTION 7.10 Eligibility; Disqualification................................................. 101
SECTION 7.11 Preferential Collection of Claims Against Issuer.............................. 102
SECTION 7.12 Paying Agents................................................................. 102
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ARTICLE EIGHT
MENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01 Without Consent of Holders.................................................... 102
SECTION 8.02 With Consent of Holders....................................................... 104
SECTION 8.03 Compliance with Trust Indenture Act........................................... 105
SECTION 8.04 Revocation and Effect of Consents............................................. 105
SECTION 8.05 Notation on or Exchange of Notes.............................................. 106
SECTION 8.06 Trustee To Sign Amendments, Etc............................................... 106
ARTICLE NINE
ISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01 Discharge of Indenture........................................................ 107
SECTION 9.02 Legal Defeasance.............................................................. 107
SECTION 9.03 Covenant Defeasance........................................................... 108
SECTION 9.04 Conditions to Legal Defeasance or Covenant Defeasance......................... 109
SECTION 9.05 Deposited Money and U.S. Government Obligations To Be Held in Trust; Other
Miscellaneous Provisions................................................... 110
SECTION 9.06 Reinstatement................................................................. 110
SECTION 9.07 Moneys Held by Paying Agent................................................... 111
SECTION 9.08 Moneys Held by Trustee........................................................ 111
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01 Note Guarantee................................................................ 112
SECTION 10.02 Execution and Delivery of Note Guarantee...................................... 113
SECTION 10.03 Limitation of Note Guarantee.................................................. 114
SECTION 10.04 Additional Company Guarantors................................................. 114
SECTION 10.05 Release of Company Guarantor.................................................. 115
SECTION 10.06 Waiver of Subrogation......................................................... 115
ARTICLE ELEVEN
COLLATERAL
SECTION 11.01 Collateral; Additional Collateral; Substitute Collateral...................... 116
SECTION 11.02 Recording, Registration and Opinions.......................................... 116
SECTION 11.03 Release of Collateral......................................................... 117
SECTION 11.04 Possession and Use of Collateral.............................................. 117
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SECTION 11.05 Authorization of Actions to Be Taken by the Trustee Under the Collateral
Documents and the Intercreditor Agreements................................. 118
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01 Trust Indenture Act Controls.................................................. 118
SECTION 12.02 Notices....................................................................... 119
SECTION 12.03 Communications by Holders with Other Holders.................................. 120
SECTION 12.04 Certificate and Opinion as to Conditions Precedent............................ 120
SECTION 12.05 Statements Required in Certificate and Opinion................................ 120
SECTION 12.06 Rules by Trustee and Agents................................................... 121
SECTION 12.07 Governing Law................................................................. 121
SECTION 12.08 Agent for Service; Submission to Jurisdiction; Waiver of Immunities........... 121
SECTION 12.09 No Adverse Interpretation of Other Agreements................................. 122
SECTION 12.10 No Recourse Against Others.................................................... 122
SECTION 12.11 Successors.................................................................... 122
SECTION 12.12 Multiple Counterparts......................................................... 122
SECTION 12.13 Table of Contents, Headings, Etc.............................................. 122
SECTION 12.14 Separability.................................................................. 123
EXHIBITS
Exhibit A-1 Form of Floating Rate Note.................................................... A-1
Exhibit A-2 Form of Fixed Rate Note....................................................... A-2
Exhibit B Form of Private Placement Legend.............................................. B-1
Exhibit C Form of Legend for Global Note................................................ C-1
Exhibit D Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors.................... D-1
Exhibit E Form of Certificate To Be Delivered in Connection with Transfers Pursuant
to Regulation S............................................................ E-1
Exhibit F Form of Notation of Guarantee................................................. F-1
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INDENTURE, dated as of March 25, 2004, among ISPAT INLAND ULC, a
Nova Scotia unlimited liability company, as issuer (the "Issuer"), the
Guarantors (as defined herein) and LASALLE BANK NATIONAL ASSOCIATION, as trustee
(the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Assets" means:
(1) any property, plant, equipment or other assets used in a Related
Business;
(2) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or another Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person
that at such time is a Restricted Subsidiary;
provided that any such Restricted Subsidiary described in clause (2) or (3)
above is primarily engaged in a Related Business.
"Additional Interest" has the meaning set forth in the Registration
Rights Agreement.
"Additional Notes" means up to an aggregate principal amount of
$100.0 million, consisting of additional Floating Rate Notes and/or Fixed Rate
Notes, if any, issued from time to time after the Issue Date pursuant to Section
2.19.
"Affiliate" of any specified Person means:
(1) any other Person, directly or indirectly, controlling or
controlled by such specified Person; or
(2) under direct or indirect common control with such specified
Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling"
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and "controlled" have meanings correlative to the foregoing. For purposes of
Sections 4.07, 4.09 and 4.10 only, "Affiliate" shall also mean any beneficial
owner of Capital Stock representing 10% or more of the total voting power of the
Voting Stock (on a fully diluted basis) of the Company or of rights or warrants
to purchase such Capital Stock (whether or not currently exercisable) and any
Person who would be an Affiliate of any such beneficial owner pursuant to the
first sentence hereof.
"Agent" means any Registrar, Paying Agent, Calculation Agent or
agent for service of notices and demands.
"amend" means to amend, supplement, restate, amend and restate or
otherwise modify; and "amendment" shall have a correlative meaning.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary (other
than directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary);
(2) all or substantially all the assets of any division or line of
business of the Company or any Restricted Subsidiary; or
(3) any other assets of the Company or any Restricted Subsidiary
outside of the ordinary course of business of the Company or such
Restricted Subsidiary
(other than, in the case of clauses (1), (2) and (3) above,
(A) a disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to a Wholly Owned Subsidiary (other
than to a Securitization Subsidiary and other than a transfer of Inventory
Collateral outside the ordinary course of business unless the transferee
makes adequate provision to preserve the validity and priority of the Lien
of the Trustee on such Inventory Collateral);
(B) for purposes of Section 4.10 only, (x) a disposition that
constitutes a Restricted Payment permitted by Section 4.07 or a Permitted
Investment and (y) a disposition of all or substantially all the assets of
the Company in accordance with Section 5.01(a);
(C) a disposition of assets with a fair market value of less than
$2.0 million;
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(D) the sale, transfer or other disposition of (i) Receivables and
Related Assets or (ii) Inventory and Related Assets (provided that if any
such Inventory and Related Assets constitute Inventory Collateral, the
Lien of the Trustee is not released in such transaction) pursuant to a
Qualified Securitization Transaction;
(E) grants of Liens permitted by Section 4.08; and
(F) sales of (i) obsolete and not practically useable or (ii)
worn-out equipment).
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Fixed Rate Notes, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended); provided that if such Sale/Leaseback
Transaction results in a Capital Lease Obligation, the amount of Indebtedness
represented thereby will be determined in accordance with the definition of
"Capital Lease Obligation."
"Average Life" means, as of the date of determination, with respect
to any Indebtedness, the quotient obtained by dividing:
(1) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment
of or redemption or similar payment with respect to such Indebtedness
multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bankruptcy Law" means Title 11 of the United States Code, as
amended, or any similar U.S. federal or state law for the relief of debtors.
"Board of Directors" in respect of a Person means the Board of
Directors of such Person or any committee thereof duly authorized to act on
behalf of such Board.
"Board Resolution" means a copy of a resolution certified pursuant
to an Officers' Certificate to have been duly adopted by the Board of Directors
of the Issuer or a Guarantor, as appropriate, and to be in full force and
effect, and, as so certified, delivered to the Trustee.
"Bonds" means the First Mortgage Bonds and other bonds issued under
the Mortgage.
"Business Day" means each day which is not a Legal Holiday.
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"Capital Lease Obligation" means an obligation that is required to
be classified and accounted for as a capital lease for financial reporting
purposes in accordance with GAAP, and the amount of indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty. For purposes of Section 4.08, a Capital Lease Obligation will be deemed
to be secured by a Lien on the property being leased.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Change of Control" means the occurrence of any of the following
events:
(1) the Permitted Holders cease to own, or to have the power to
direct the voting of, at least 35% of the total voting power of the Voting
Stock of Parent;
(2) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more Permitted
Holders, is or becomes the "beneficial owner" (as defined in Rule 13d-3
and 13d-5 under the Exchange Act, except that for purposes of this clause
(2) such person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock
of Parent; provided, however, that the Permitted Holders own or have the
right to direct the voting of a lesser percentage of the total voting
power of the Voting Stock of Parent than such other person or group and do
not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of
Parent;
(3) individuals who on the Issue Date constituted the Board of
Directors of Parent (together with any new directors whose election by
such Board of Directors or whose nomination for election by the
shareholders of Parent was recommended or approved by a vote of a majority
of the directors of Parent then still in office who were either directors
on the Issue Date or whose election or nomination for election was
previously so recommended or approved by a majority of such directors who,
at such time, had been so recommended or approved) cease for any reason to
constitute a majority of the Board of Directors of Parent then in office;
(4) the adoption of a plan relating to the liquidation or
dissolution of the Issuer (other than as part of a Permitted Finco
Collapse Transaction), the Company or Parent;
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(5) the merger or consolidation of Parent with or into another
Person or the merger of another Person with or into Parent, or the sale of
all or substantially all the assets of Parent (determined on a
consolidated basis) to another Person (other than, in all such cases, a
Person that is controlled by the Permitted Holders), other than a
transaction following which (A) in the case of a merger or consolidation
transaction, holders of securities that represented 100% of the Voting
Stock of Parent immediately prior to such transaction (or other securities
into which such securities are converted as part of such merger or
consolidation transaction) own directly or indirectly at least a majority
of the voting power of the Voting Stock of the surviving Person in such
merger or consolidation transaction immediately after such transaction and
in substantially the same proportion as before the transaction and (B) in
the case of a sale of assets transaction, the transferee Person becomes a
Subsidiary of the transferor of such assets;
(6) Parent ceases to own and have the power to direct the voting of,
directly or indirectly, a majority of the total voting power of the Voting
Stock of each of the Issuer and the Finco Guarantors; or
(7) Parent (including any entity controlling Parent) ceases to own
and have the power to direct the voting of, directly or indirectly, a
majority of the total voting power of the Voting Stock of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means the Pledged Collateral and the Inventory
Collateral.
"Collateral Documents" means the Pledge Agreement, the Inventory
Security Agreement and each other deed of trust, pledge agreement, collateral
assignment, security agreement, fiduciary transfer or other instrument
evidencing or creating any security interests in favor of the Trustee for the
benefit of Holders of the Notes.
"Commodity Hedging Agreement" means agreements or arrangements
relating to the future price of any commodity.
"Company" means Ispat Inland Inc.
"Company Guarantors" means (x) on the Issue Date, Burnham Trucking
Company, Inc., Incoal Company, Ispat Inland Mining Company and Ispat Inland
Service Corp. and (y) following the Issue Date, any additional Subsidiary of the
Company that becomes a Company Guarantor in accordance with Section 10.04, in
each case, until such Person is released from its Note Guarantee.
"Company Note" means loans by the Issuer or a Finco Guarantor to the
Company out of Excess Finco Proceeds.
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"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (x) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters for which financial statements have been
made publicly available on or prior to the date of such determination to (y)
Consolidated Interest Expense for such four fiscal quarters; provided that:
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding
or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both,
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness
as if such Indebtedness had been Incurred on the first day of such period;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any Revolving Credit Facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the
date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense for
such period shall be calculated on a pro forma basis as if such discharge
had occurred on the first day of such period and as if the Company or such
Restricted Subsidiary has not earned the interest income actually earned
during such period in respect of cash or Temporary Cash Investments used
to repay, repurchase, defease or otherwise discharge such Indebtedness;
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition, EBITDA for
such period shall be reduced by an amount equal to EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to EBITDA (if
negative), directly attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount equal to
the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Company
and its continuing Restricted Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition or
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improvement of assets, including any acquisition of assets occurring in
connection with a transaction requiring a calculation to be made
hereunder, which constitutes all or substantially all of an operating unit
of a business, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto (including the
Incurrence or retirement of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period; and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period)
shall have made any Asset Disposition, any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (3) or
(4) above if made by the Company or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to be given to a
transaction, the amount of income, earnings or cost savings relating thereto and
the amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting officer of the Company.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent incurred by the Company or its Restricted Subsidiaries (or in the case of
clause (11), the Issuer and the Finco Guarantors), without duplication:
(1) interest expense attributable to capital leases and the interest
expense attributable to leases constituting part of a Sale/Leaseback
Transaction;
(2) amortization of debt discount, premium and debt issuance cost;
(3) capitalized interest;
(4) non-cash interest expense (other than interest accruing on loans
or advances from Affiliates outstanding on the Issue Date);
(5) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
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(6) net payments pursuant to Hedging Obligations under Interest Rate
Agreements;
(7) Preferred Stock dividends in respect of all Preferred Stock held
by Persons other than the Company or a Wholly Owned Subsidiary (other than
dividends payable solely in Capital Stock (other than Disqualified Stock)
of the issuer of such Preferred Stock);
(8) interest incurred in connection with Investments in discontinued
operations;
(9) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by (or secured by the assets of)
the Company or any Restricted Subsidiary;
(10) the cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the Company) in
connection with Indebtedness Incurred by such plan or trust; and
(11) (x) the amount of payments of interest, premium and Additional
Amounts of the Issuer with respect to the Notes and (y) all other
consolidated expenses of the Issuer and the Finco Guarantors (excluding
any expenses paid to the Company or a Restricted Subsidiary);
provided that there shall be excluded from Consolidated Interest Expense (i)
interest expense and premium of the Company and its Restricted Subsidiaries that
is paid to the Issuer or, prior to a Permitted Finco Collapse Transaction, any
Finco Guarantor, (ii) dividends on the Company's Capital Stock paid to the
Issuer or, prior to a Permitted Finco Collapse Transaction, a Finco Guarantor
and (iii) debt issuance cost in connection with the Notes.
"Consolidated Net Income" means, for any period, the consolidated
net income of the Company and its consolidated Subsidiaries; provided that there
shall be excluded from such Consolidated Net Income, without duplication:
(1) any net income of any Person (other than the Company) if such
Person is not a Restricted Subsidiary, except that:
(A) subject to the exclusion contained in clause (3) below,
the Company's equity in the net income of any such Person for such
period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Person during
such period to the Company or a Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or
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dividend or other distribution paid to a Restricted Subsidiary, to
the limitations contained in clause (2) below); and
(B) the Company's equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net
Income;
(2) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that:
(A) subject to the exclusion contained in clause (3) below,
the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash actually distributed
by such Restricted Subsidiary during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to
another Restricted Subsidiary, to the limitation contained in this
clause); and
(B) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(3) any gain or loss realized upon the sale or other disposition of
any assets of the Company, its consolidated Subsidiaries or any other
Person (including pursuant to any sale-and-leaseback arrangement) which is
not sold or otherwise disposed of in the ordinary course of business and
any gain or loss realized upon the sale or other disposition of any
Capital Stock of any Person;
(4) extraordinary gains or losses;
(5) all other non-cash charges of the Company and its consolidated
Restricted Subsidiaries (excluding any such non-cash charge to the extent
that it represents an accrual of or reserve for cash expenditures in any
future period);
(6) the cumulative effect of a change in accounting principles;
(7) interest expense payable by the Company and its Restricted
Subsidiaries to the Issuer or, prior to a Permitted Finco Collapse
Transaction, any Finco Guarantor;
(8) interest income payable to the Company and its Restricted
Subsidiaries by the Issuer or, prior to a Permitted Finco Collapse
Transaction, any Finco Guarantor; and
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(9) amortization of debt discount, premium and debt issuance cost in
connection with the sale of the Notes;
provided, further, that Consolidated Net Income will be reduced by the sum of
(i) the amount of payments of interest, premium and Additional Amounts made by
the Issuer with respect to the Notes and (ii) all other consolidated expenses of
the Issuer and the Finco Guarantors (excluding any expenses paid to the Company
or a Restricted Subsidiary and amortization of any debt discount, premium and
debt issuance cost in connection with the sale of the Notes).
Notwithstanding the foregoing, for the purposes of Section 4.07
only, there shall be excluded from Consolidated Net Income any repurchases,
repayments or redemptions of Investments, proceeds realized on the sale of
Investments or return of capital to the Company or a Restricted Subsidiary to
the extent such repurchases, repayments, redemptions, proceeds or returns
increase the amount of Restricted Payments permitted under such Section 4.07
pursuant to clause (a)(3)(D) thereof.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of the Company for which financial statements have been made
publicly available on or prior to the taking of any action for the purpose of
which the determination is being made, as the sum of:
(1) the par or stated value of all outstanding Capital Stock of the
Company plus
(2) paid-in capital or capital surplus relating to such Capital
Stock plus
(3) any retained earnings or earned surplus
less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Stock.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is as set
forth in Section 12.02.
"corresponding series" means with respect to the (i) Floating Rate
Notes, First Mortgage Bonds, Series Y and (ii) Fixed Rate Notes, First Mortgage
Bonds, Series Z.
"Credit Agreements" mean (x) the GECC Credit Agreement, and (y) any
other loan or credit agreement secured by Receivables and Related Assets or
Inventory and Related Assets among the Company and/or any Restricted Subsidiary
and one or more financial institutions, each as amended, extended, renewed,
restated, supplemented or otherwise modified (in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other provisions) from
time to time, and any agreement (and related document) governing
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Indebtedness incurred to Refinance, in whole or in part, the borrowings and
commitments then outstanding or permitted to be outstanding under such Credit
Agreement or a successor Credit Agreement, whether by the same or any other
lender or group of lenders.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Determination Date," with respect to an Interest Period, will be
the second London Banking Day preceding the first day of the Interest Period.
"Disqualified Stock" means, with respect to any Person, 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 at the option of the holder) or upon
the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder for
Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the 91st day following the Maturity Date of the
Fixed Rate Notes; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
91st day following the Maturity Date of the Fixed Rate Notes shall not
constitute Disqualified Stock if:
(1) the "asset sale" or "change of control" provisions applicable to
such Capital Stock are not more favorable to the holders of such Capital
Stock than the terms applicable to the Notes and described in Sections
4.10 and 4.14; and
(2) any such requirement only becomes operative after compliance
with such terms applicable to the Notes, including the purchase of any
Notes tendered pursuant thereto.
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The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price will be calculated in accordance with the terms of
such Disqualified Stock as if such Disqualified Stock were redeemed, repaid or
repurchased on any date on which the amount of such Disqualified Stock is to be
determined pursuant to this Indenture; provided that if such Disqualified Stock
could not be required to be redeemed, repaid or repurchased at the time of such
determination, the redemption, repayment or repurchase price will be the book
value of such Disqualified Stock as reflected in the most recent financial
statements of such Person.
"DTC" means The Depository Trust Company, its nominee or successor.
"EBITDA" for any period means the sum of Consolidated Net Income,
plus the following to the extent deducted in calculating such Consolidated Net
Income:
(1) all income tax expense of the Company and its consolidated
Restricted Subsidiaries;
(2) Consolidated Interest Expense; and
(3) depreciation and amortization expense of the Company and its
consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid operating activity item that was paid in cash in
a prior period),
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and non-cash charges of, a Restricted Subsidiary shall be added to Consolidated
Net Income to compute EBITDA only to the extent (and in the same proportion)
that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
Except as set forth in Section 4.06(e), whenever it is necessary to
determine whether the Company has complied with any covenant in this Indenture
or a Default has occurred and an amount is expressed in a currency other than
U.S. Dollars, such amount will be treated as the U.S. Dollar Equivalent
determined as of the date such amount is initially determined in such currency.
"Empire" means Empire Iron Mining Partnership, a partnership in
which the Company owns a 21% interest.
"Empire Agreement" means the Restated Empire Iron Mining Partnership
Agreement dated as of December 1, 1978, as amended to the Issue Date.
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"Equity Offering" means an offering (whether public or private) of
common stock of Parent or the Company.
"Excess Finco Proceeds" means, at any time of determination, for any
period, (i) all cash payments received during such period by the Issuer or any
Finco Guarantor in respect of the First Mortgage Bonds and any Capital Stock of
the Company held by the Issuer or any Finco Guarantor less (ii) the sum of (w)
all amounts paid on the Notes during such period, (x) all taxes paid or accrued
during such period, (y) all administrative costs and other expenses paid during
such period and (z) all Investments made in Company Notes prior to such time
during such period.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the debt securities of the Issuer issued
pursuant to this Indenture in exchange for, and in an aggregate principal amount
equal to, the Notes, in compliance with the terms of the Registration Rights
Agreement.
"Existing Joint Ventures" shall mean I/N Kote, I/N Tek, PCI and
Empire; provided that for purposes of Article Four hereof any action permitted
to be taken by the Company and its Restricted Subsidiaries with reference to the
Existing Joint Ventures may be taken by the Company or a Restricted Subsidiary
indirectly through an action with respect to an Unrestricted Subsidiary that is
an equity holder in an Existing Joint Venture.
"Existing Receivables Intercreditor Agreement" means the
Intercreditor Agreement, dated as of the Issue Date, by and among JPMorgan Chase
Bank, BNY Midwest Trust Company, General Electric Capital Corporation, the
Company, Ispat Inland Administrative Service Company and the Trustee, as the
same may be amended in accordance with the terms of this Indenture.
"Existing Shareholder Advances" means the Company's obligations
under the $215.8 million aggregate principal amount of Subordinated Obligations
advanced to the Company by Parent and Ispat International Group Finance Limited
Liability Company outstanding on the Issue Date.
"Finco Guarantors" means, prior to a Permitted Finco Collapse
Transaction, each of Ispat Inland, L.P., 3019693 Nova Scotia U.L.C. and Ispat
Inland Finance, LLC.
"Finco Mirror Note" means the promissory note issued on the issue
date by Ispat Inland, L.P. to the Issuer.
"Finco Subordinated Note" means, collectively, (i) Subordinated
Obligations in the form of the $5.6 million principal amount 8% note due April
2, 2014 issued by a Finco Guarantor to the Company outstanding on the Issue Date
and (ii) Subordinated Obligations in the form of a 9.87% $23.0 million aggregate
principal amount note due April 2, 2014 issued by the
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Issuer or a Finco Guarantor on the Issue Date in favor of the Company; provided
that the aggregate principal amount of the Finco Subordinated Note referred to
in clause (ii) may be increased by an amount equal to the aggregate principal
amount of any fees and expenses of the Issuer in connection with any issuance of
Additional Notes.
"First Mortgage Bonds" means $800.0 million aggregate principal
amount of Series Y and Series Z First Mortgage Bonds issued by the Company under
the Mortgage and including any additional Series Y and Series Z First Mortgage
Bonds issued by the Company under the Mortgage as Collateral for Additional
Notes.
"First Mortgage Bonds Collateral" means the real property and
fixtures at the Company's Indiana Harbor Works consisting of approximately 1900
acres, as more fully described in the Mortgage.
"Fixed Rate Notes" means all 9-3/4% Senior Secured Notes due 2014
issued under this Indenture.
"Floating Rate Notes" means all Senior Secured Floating Rate Notes
due 2010 issued under this Indenture.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set
forth in:
(1) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by a
significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
SEC.
"GECC Credit Agreement" means that certain Credit Agreement dated as
April 30, 2003 among the Company, as borrower, the other credit parties and
lenders party thereto and General Electric Capital Corporation, as Agent and
Lender, and GECC Capital Markets Group, Inc., as Lead Arranger.
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"GECC Intercreditor Agreement" means the agreement, dated as of the
Issue Date, among the Trustee, the Company, certain subsidiaries of the Company,
Ispat Inland Finance, LLC and General Electric Capital Corporation as the same
may be amended in accordance with Article Eight.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise); or
(2) entered into for the purpose of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantors" means Parent, the Company, the Company Guarantors and
the Finco Guarantors.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement or
Commodity Hedging Agreement.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term
"Incurrence" when used as a noun shall have a correlative meaning. Solely for
purposes of determining compliance with Section 4.06, (1) amortization of debt
discount or the accretion of principal with respect to a non-interest bearing or
other discount security and (2) the payment of regularly scheduled interest in
the form of additional Indebtedness of the same instrument or the payment of
regularly scheduled dividends on Capital Stock in the form of additional Capital
Stock of the same class and with the same terms will not be deemed to be the
Incurrence of Indebtedness.
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"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into
by such Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary
course of business);
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (1)
through (3) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following payment on the letter of credit);
(5) the amount of all non-contingent obligations of such Person with
respect to the redemption, repayment or other repurchase of any
Disqualified Stock of such Person or, with respect to any Preferred Stock
of any Subsidiary of such Person, the principal amount of such Preferred
Stock to be determined in accordance with this Indenture (but excluding,
in each case, any accrued dividends);
(6) all obligations of the type referred to in clauses (1) through
(5) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee;
(7) all obligations of the type referred to in clauses (1) through
(6) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets and the amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition, net
Hedging Obligations of such Person;
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provided, however, that Indebtedness shall not include the obligations of the
general partners, in their capacities as such, of the Existing Joint Ventures in
respect of the Indebtedness of such partnerships existing on the Issue Date and
disclosed in the Offering Memorandum.
Notwithstanding the foregoing, in connection with the purchase by
the Company or any Restricted Subsidiary of any business, the term
"Indebtedness" will exclude post-closing payment adjustments to which the seller
may become entitled to the extent such payment is determined by a final closing
balance sheet or such payment depends on the performance of such business after
the closing; provided, however, that, at the time of closing, the amount of any
such payment is not determinable and, to the extent such payment thereafter
becomes fixed and determined, the amount is paid within 30 days thereafter.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; provided,
however, that the principal amount of any noninterest bearing or other discount
security at any date will be the principal amount thereof that would be shown on
a balance sheet of such Person dated such date prepared in accordance with GAAP.
For purposes of calculating the amount outstanding of Indebtedness
of a Securitization Subsidiary that transfers any interest in accounts
receivable or inventory to another Person, the amount of unrecovered capital,
purchase price or principal investment of such Person (if other than the Company
or a Restricted Subsidiary) in respect thereof, excluding any amount
representing yield or interest earned on such capital, purchase price or
investment, shall be deemed to be Indebtedness.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Independent Qualified Party" means an investment banking firm,
accounting firm or appraisal firm of national standing; provided that such firm
is not an Affiliate of the Company.
"Initial Purchaser" means UBS Securities LLC.
"I/N Kote" shall mean I/N Kote L.P., a Delaware limited partnership
in which a Subsidiary of the Company owns a 49% general partnership interest and
a 1% limited partnership interest.
"I/N Tek" shall mean I/N Tek L.P., a Delaware limited partnership in
which a Subsidiary of the Company owns a 59% general partnership interest and a
1% limited partnership interest.
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"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
promulgated under the Securities Act.
"Intercreditor Agreements" means the GECC Intercreditor Agreement,
the Existing Receivables Intercreditor Agreement, any future Inventory
Intercreditor Agreement or Receivables Intercreditor Agreement and the USWA
Mortgage.
"interest" means, with respect to the Notes, interest and Additional
Interest, if any, on the Notes.
"Interest Period" means the period commencing on and including an
interest payment date for the Floating Rate Notes and ending on and including
the day immediately preceding the next succeeding interest payment date for the
Floating Rate Notes, with the exception that the first Interest Period shall
commence on and include March 25, 2004 and end on and include June 30, 2004.
"Interest Rate Agreement" means in respect of a Person any interest
rate swap agreement, interest rate cap agreement or other similar financial
agreement or arrangement.
"Inventory and Related Assets" means any inventory (whether now
existing or arising thereafter) of the Company or any Restricted Subsidiary, and
any assets related thereto, including all collateral securing such inventory and
other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving inventory.
"Inventory Collateral" means the "Collateral" (as defined in the
Inventory Security Agreement).
"Inventory Intercreditor Agreement" means the GECC Intercreditor
Agreement and any future intercreditor agreement entered into between the
Trustee and any holder of Indebtedness that is secured by a Permitted Inventory
Collateral Lien of the type described in clause (1) of the definition of
"Permitted Inventory Collateral Lien" on terms no less favorable to the Holders
of Notes than the terms of the GECC Intercreditor Agreement.
"Inventory Security Agreement" means the security agreement dated
March 25, 2004, between the Company and the Trustee, as may be amended according
to the provisions of this Indenture.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable or advances against supplies on the balance
sheet of the lender) or other extension of credit (including by way of Guarantee
or similar arrangement) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
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account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such Person. Except as
otherwise provided for herein, the amount of an Investment shall be its fair
value at the time the Investment is made and without giving effect to subsequent
changes in value.
For purposes of the definition of "Unrestricted Subsidiary," the
definition of "Restricted Payment" and Section 4.07:
(1) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of
the net assets of any Subsidiary of the Company at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Company shall be deemed to continue to have a permanent "Investment"
in an Unrestricted Subsidiary equal to an amount (if positive) equal to
(A) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (B) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of
such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the Board of Directors of the
Company;
provided that Special Contributions (as defined in the Empire Agreement) shall
not be deemed to be Investments.
"Investment Grade" designates a rating of BBB- or higher by S&P or
Baa3 or higher by Moody's or the equivalent of such ratings by S&P or Moody's.
In the event that the Issuer shall select any other Rating Agency, the
equivalent of such ratings by such Rating Agency shall be used.
"Ispat Inland Inc. Pension Plan" means the Ispat Inland Inc. Pension
Plan, as restated effective January 1, 1997, including all supplements thereto.
"Issue Date" means March 25, 2004.
"Issuer" means Ispat Inland ULC.
"Issuer Request" means any written request signed in the name of the
Issuer by any one of the Chairman of the Board of Directors, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Controller or the Treasurer of the Issuer and attested to by the Secretary or
any Assistant Secretary of the Issuer.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
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"LIBOR" with respect to an Interest Period, will be the rate
(expressed as a percentage per annum) for deposits in United States dollars for
three-month periods beginning on the first day of such Interest Period that
appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
Determination Date. If Telerate Page 3750 does not include such a rate or is
unavailable on a Determination Date, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide such bank's offered
quotation (expressed as a percentage per annum), as of approximately 11:00 a.m.,
London time, on such Determination Date, to prime banks in the London interbank
market for deposits in a Representative Amount in United States dollars for a
three-month period beginning on the first day of such Interest Period. If at
least two such offered quotations are so provided, LIBOR for the Interest Period
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, the Calculation Agent will request each of three
major banks in New York City, as selected by the Calculation Agent, to provide
such bank's rate (expressed as a percentage per annum), as of approximately
11:00 a.m., New York City time, on such Determination Date, for loans in a
Representative Amount in United States dollars to leading European banks for a
three-month period beginning on the first day of such Interest Period. If at
least two such rates are so provided, LIBOR for the Interest Period will be the
arithmetic mean of such rates. If fewer than two such rates are so provided,
then LIBOR for the Interest Period will be LIBOR in effect with respect to the
immediately preceding Interest Period.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"London Banking Day" is any day in which dealings in United States
dollars are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Maturity Date" means April 1, 2010, with respect to the Floating
Rate Notes, and April 1, 2014, with respect to the Fixed Rate Notes.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Mortgage" means the First Mortgage dated April 1, 1928, as amended
and supplemented from time to time, between the Company and The Bank of New York
and Louis P. Young, as successor trustees.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
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Indebtedness or other obligations relating to such properties or assets or
received in any other noncash form), in each case net of:
(1) all accounting, investment banking, 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 paid or
be accrued as a liability under GAAP, as a consequence of such Asset
Disposition;
(2) except in the case of Inventory Collateral, all payments made on
any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind 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
Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such
Asset Disposition; and
(4) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and
retained by the Company or any Restricted Subsidiary after such Asset
Disposition;
provided that the term "Net Available Cash" shall not include the proceeds of
any Asset Disposition consummated during any Suspension Period.
"Net Cash Proceeds" with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Note Guarantee" means a Guarantee by each Guarantor of all
Obligations of the Issuer under the Notes and this Indenture on the terms set
forth in this Indenture.
"Notes" means the Floating Rate Notes and the Fixed Rate Notes
issued by the Issuer, including, without limitation, the Original Notes,
Additional Notes, if any, the Private Exchange Notes, if any, and the Exchange
Notes, as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture. Except as provided in
Section 8.02, all Notes including any such Additional Notes shall vote together
as one series of Notes under this Indenture.
-22-
"Obligations" means with respect to any Indebtedness all obligations
for principal, premium, interest, penalties, fees, indemnifications,
reimbursements and other amounts payable pursuant to the documentation governing
such Indebtedness.
"Offering" means the offering pursuant to the Offering Memorandum of
the Notes to be issued on the Issue Date.
"Offering Memorandum" means the Offering Memorandum dated March 18,
2004 pursuant to which the Original Notes were offered.
"Officer" means any of the following of the Issuer: the Chairman of
the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer or the Secretary.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion reasonably satisfactory
in form and substance to the Trustee from legal counsel, which counsel is
reasonably acceptable to the Trustee, including the matters required by Section
12.05 and delivered to the Trustee.
"Original Fixed Rate Notes" means $650.0 million aggregate principal
amount of Fixed Rate Notes issued on the Issue Date.
"Original Floating Rate Notes" means $150.0 million aggregate
principal amount of Floating Rate Notes issued on the Issue Date.
"Original Notes" means the Original Fixed Rate Notes and the
Original Floating Rate Notes.
"Parent" means Ispat International N.V.
"Parent Subordination Agreement" means the subordination agreement,
dated as of the Issue Date, between the Company, Parent, Ispat International
Group Finance Limited Liability Company, any other Subordinated Lender (as
defined therein) and the Trustee.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PBGC Agreement" means that certain agreement, dated March 14, 2000
(which agreement supplemented an agreement dated July 14, 1998) among the
Company, Parent, Ryerson Tull Inc. and the PBGC, as amended under an agreement
dated July 9, 2003, as amended, extended, renewed, restated, supplemented or
otherwise modified from time to time.
"PBGC Pledge Agreement" means the pledge agreement, dated as of July
9, 2003 by and between Ispat Inland Finance, LLC and the PBGC.
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"PCI" means PCI Associates, a general partnership in which the
Company owns a 50% interest.
"Permitted Finco Collapse Transaction" means a transaction at any
time when no Default has occurred and is continuing in which, except as
specified in clause (c) below, each of the following events occur:
(a) Ispat Inland, L.P. transfers (including through a series of
transfers among Finco Guarantors) or causes to be transferred to the
Issuer (x) any First Mortgage Bonds held by any Finco Guarantor and (y)
any Indebtedness owed by the Issuer to any Finco Guarantor and the Finco
Mirror Note is retired (and in connection therewith the rate of interest
payable by the Company on the First Mortgage Bonds will be reduced by
0.50%);
(b) Ispat Inland, L.P. transfers all of the Capital Stock of the
Issuer to a newly formed limited liability company (the "Successor
Issuer") organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia which has no
material assets or liabilities and all of the Capital Stock of which is
owned by Ispat Inland Holdings, Inc. or any successor entity which owns
directly a majority of the Voting Stock of the Company (the "Company
Parent");
(c) any Finco Guarantor may, if it so elects, transfer (including
through a series of transfers among Finco Guarantors) or cause to be
transferred to the Issuer, the Successor Issuer or the Company Parent (i)
any Capital Stock of the Company that is owned by any Finco Guarantor
and/or (ii) the Bonds that are pledged by Ispat Inland Finance, LLC to the
PBGC pursuant to the PBGC Pledge Agreement (and Ispat Inland Finance,
LLC's obligations pursuant to the PBGC Pledge Agreement), in each case, in
exchange for Capital Stock of the Company Parent;
(d) the Issuer liquidates into the Successor Issuer;
(e) the Company Parent shall execute and deliver to the Trustee a
supplement to the Pledge Agreement, in form satisfactory to the Trustee,
pursuant to which the Capital Stock of the Successor Issuer shall be
pledged to the Trustee as Collateral for the Successor Issuer's
obligations under the Notes and this Indenture;
(f) the Successor Issuer shall expressly assume by supplemental
indenture executed and delivered to the Trustee, in form satisfactory to
the Trustee, all obligations of the Issuer under this Indenture;
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(g) the Successor Issuer shall execute and deliver to the Trustee,
in form satisfactory to the Trustee, a supplement to the Pledge Agreement
pursuant to which it shall expressly assume all obligations of the Issuer
under the Pledge Agreement and pledge to the Trustee the First Mortgage
Notes and any Indebtedness of the Company held by it as Collateral for its
obligations under the Notes and this Indenture;
(h) all filings and other actions necessary to preserve the
perfection and priority of the Lien of the Trustee on the Collateral shall
be made and taken;
(i) the Company shall deliver to the Trustee an officers'
certificate and an Opinion of Counsel, each stating that such transfer and
such supplemental indenture and supplements to the Pledge Agreement comply
with this Indenture and the Pledge Agreement and that all necessary
actions have been taken to preserve the priority and perfection of the
Lien of the Trustee on the Collateral; and
(j) the Company shall deliver to the Trustee an Opinion of Counsel
to the effect that the holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such transaction and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such transaction had not
occurred.
Upon compliance with each of the foregoing requirements, (i) the
Successor Issuer shall be the successor to the Issuer and shall succeed to, and
be substituted for, and may exercise every right and power of, the Issuer under
this Indenture, the Notes and the Pledge Agreement and the predecessor Issuer
shall be released from its obligations under this Indenture, the Notes and the
Pledge Agreement and (ii) all remaining property or assets of any Finco
Guarantor constituting a portion of the Collateral shall be released from the
Lien of the Pledge Agreement and each Finco Guarantor shall be released from
this Indenture, the Pledge Agreement and its Note Guarantee and all references
to a "Finco Guarantor" in this Indenture and the Pledge Agreement shall no
longer be deemed to refer to such entities.
For purposes of Section 4.06, any Indebtedness of the Company or any
Restricted Subsidiaries that, immediately following such Permitted Finco
Collapse Transaction, is held by entities that were Finco Guarantors immediately
prior to such Permitted Finco Collapse Transaction shall be deemed to be an
Incurrence of Indebtedness by the Company or the applicable Restricted
Subsidiary on such date.
For purposes of Section 4.07, the amount of cash and Temporary Cash
Investments that, immediately following such Permitted Finco Collapse
Transaction, is held by entities that were Finco Guarantors immediately prior to
such Permitted Finco Collapse Transaction shall
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be deemed to be a Restricted Payment by the Company on the date of such
Permitted Finco Collapse Transaction.
"Permitted First Mortgage Bonds Collateral Liens" means Liens on
First Mortgage Bonds Collateral consisting of:
(1) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;
(2) Liens for taxes, assessments, governmental charges or claims not
yet subject to penalties for non-payment or which are being contested in
good faith by appropriate proceedings;
(3) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the
operation of the business of such Person;
(4) Liens (i) created pursuant to the Subordinated Mortgage (the
"USWA Mortgage"), dated as of September 15, 1994, between Inland Steel
Company (as predecessor to the Company) and the United Steelworkers of
America as in effect on the Issue Date and (ii) other Liens securing
obligations of up to $150.0 million of the Company and its Restricted
Subsidiaries; provided that (x) such Liens do not secure Indebtedness for
money borrowed and (y) such Liens are subordinated to the Lien securing
the Bonds to at least the same extent as the USWA Mortgage; and
(5) Liens securing Bonds issued in compliance with Section 4.06.
"Permitted Holders" means (1) Mr. Lakshmi N. Mittal and his spouse
or lineal descendants, (2) any trust, corporation or partnership 100% in
interest of the beneficiaries, stockholders or partners of which consists of any
Person described in clause (1) above or (3) any combination of the foregoing.
"Permitted Inventory Collateral Liens" means:
(1) Liens (which may rank, at the Company's option, prior to, on
parity with or junior to the Lien on the Inventory Collateral securing the
Company's Note Guarantee) on Inventory and Related Assets securing
Indebtedness (i) of a Securitization Subsidiary
-26-
Incurred in a Qualified Receivables Transaction and/or (ii) in a principal
amount not to exceed the sum of (x) 65% of the book value of the inventory
of the Company and its Restricted Subsidiaries (other than any inventory
constituting Inventory and Related Assets pledged, sold or otherwise
transferred or encumbered in connection with a Qualified Securitization
Transaction); and (y) 85% of the book value of the accounts receivable of
the Company and its Restricted Subsidiaries (other than any accounts
receivable constituting Receivables and Related Assets pledged, sold or
otherwise transferred or encumbered in connection with a Qualified
Securitization Transaction);
(2) Liens securing the Company's Note Guarantee;
(3) rights, if any, under the "physical property" and "springing
lien" provisions set forth in Article Six, Section 4 and Group 4 of the
granting clauses, respectively, of the Mortgage which are applicable to
Bonds issued under (w) the twenty-fourth supplemental indenture to the
Mortgage, dated January 15, 1977, (x) the twenty-fifth supplemental
indenture to the Mortgage, dated as of February 1, 1977, (y) the
thirty-second supplemental indenture to the Mortgage, dated as of June 1,
1993 and (z) the thirty-third supplemental indenture to the Mortgage,
dated as of June 1, 1995, and not to any other Indebtedness;
(4) Liens arising out of consignments and similar arrangements in
the ordinary course of business;
(5) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;
(6) Liens incidental to the conduct of the business of such Person
or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of such Inventory Collateral or materially
impair their use in the operation of the business of such Person; and
(7) Liens for taxes, assessments, governmental charges or claims not
yet subject to penalties for non-payment or which are being contested in
good faith by appropriate proceedings.
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"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in:
(1) the Company, a Restricted Subsidiary or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a
Related Business;
(2) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Restricted
Subsidiary; provided that such Person's primary business is a Related
Business;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided that such
trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(6) loans or advances to employees or directors in the ordinary
course of business of the Company or its Restricted Subsidiaries, but in
any event not to exceed $2.5 million in the aggregate outstanding at any
one time;
(7) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the non-cash
portion of the consideration received for an Asset Disposition as
permitted under Section 4.10;
(9) any Person where such Investment was acquired by the Company or
any of its Restricted Subsidiaries (a) in exchange for any other
Investment or accounts receivable or other rights to payment held by the
Company or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable or other rights to
payment or (b) as a result of a foreclosure by the Company or any of its
Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;
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(10) any Securitization Subsidiary in connection with a Qualified
Securitization Transaction; provided that such Investment consists only of
(i) Receivables and Related Assets or Inventory and Related Assets or a
promissory note or notes of the Securitization Subsidiary customary in
Qualified Securitization Transactions or (ii) Standard Securitization
Undertakings;
(11) Currency Agreements, Commodity Hedging Agreements and Interest
Rate Agreements entered into in the ordinary course of business and not
for speculative purposes; and
(12) Investments in the Issuer and, prior to a Permitted Finco
Collapse Transaction, any Finco Guarantor.
"Permitted Liens" means, with respect to any Person:
(1) pledges or deposits by such Person under worker's compensation
laws, unemployment insurance laws or similar legislation or to support
obligations to insurance companies in respect of deductibles, co-insurance
claims or self-insured retention (and letter of credit obligations in
respect thereof), or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness), warranty
obligations or leases to which such Person is a party, or deposits to
secure public or statutory obligations of such Person or deposits of cash
or cash equivalents to secure surety or appeal bonds to which such Person
is a party, or deposits as security for contested taxes or import duties
or for the payment of rent, in each case Incurred in the ordinary course
of business;
(2) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;
(3) Liens arising solely by virtue of any statutory or common law
provision relating to banker's Liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided, however, that (A) such deposit
account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set forth by
regulations promulgated by the Federal Reserve Board and (B) such deposit
account is not intended by the Company or any Restricted Subsidiary to
provide collateral to the depository institution;
(4) Liens for taxes, assessments, governmental charges or claims not
yet subject to penalties for non-payment or which are being contested in
good faith by appropriate proceedings;
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(5) Liens in favor of issuers of surety bonds or letters of credit
and bankers' acceptances issued pursuant to the request of and for the
account of such Person in the ordinary course of its business; provided,
however, that such letters of credit do not constitute Indebtedness;
(6) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the
operation of the business of such Person;
(7) Liens securing Indebtedness Incurred to finance the
construction, purchase or lease of, or repairs, improvements or additions
to, property, plant or equipment of such Person; provided that the Lien
may not extend to any other property owned by such Person or any of its
Restricted Subsidiaries at the time the Lien is Incurred (other than
assets and property affixed or appurtenant thereto), and the Indebtedness
(other than any interest thereon) secured by the Lien may not be Incurred
more than 180 days after the later of the acquisition, completion of
construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien;
(8) Liens on Inventory and Related Assets, mobile equipment, spare
parts, stock of Securitization Subsidiaries, Indebtedness owing from
Securitization Subsidiaries, Receivables and Related Assets (and proceeds
thereof, including, without limitation, cash, investments and pledged
deposit accounts and lockboxes) to secure Indebtedness (i) of a
Securitization Subsidiary Incurred in a Qualified Receivables Transaction
and/or (ii) in a principal amount not to exceed the sum of (x) 65% of the
book value of the inventory of the Company and its Restricted Subsidiaries
(other than any inventory constituting Inventory and Related Assets
pledged, sold or otherwise transferred or encumbered in connection with a
Qualified Securitization Transaction); and (y) 85% of the book value of
the accounts receivable of the Company and its Restricted Subsidiaries
(other than any accounts receivable constituting Receivables and Related
Assets pledged, sold or otherwise transferred or encumbered in connection
with a Qualified Securitization Transaction);
(9) Permitted First Mortgage Bonds Collateral Liens, Liens securing
the Notes and the Note Guarantees and, without duplication, Liens
outstanding on the Issue Date;
(10) Liens on property or shares of Capital Stock of another Person
at the time such other Person becomes a Subsidiary of such Person;
provided, however, that the Liens may not extend to any other property
owned by such Person or any of its Restricted Subsidiaries (other than
assets and property affixed or appurtenant thereto);
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(11) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means of
a merger or consolidation with or into such Person or a Subsidiary of such
Person; provided, however, that the Liens may not extend to any other
property owned by such Person or any of its Restricted Subsidiaries (other
than assets and property affixed or appurtenant thereto);
(12) Liens securing Indebtedness or other obligations of a
Subsidiary of such Person owing to such Person or a wholly owned
Subsidiary of such Person;
(13) Liens securing Hedging Obligations entered into to protect
against fluctuations in interest rates in the ordinary course of business;
(14) Liens securing Hedging Obligations related to Currency
Agreements or Commodity Hedging Agreements entered into to protect against
fluctuations in exchange rates and commodity prices in the ordinary course
of business;
(15) leases or subleases granted in the ordinary course of business;
(16) any interest or title of a lessor under any lease, whether or
not characterized as an operating lease or a capital lease;
(17) Liens arising out of consignments or similar arrangements for
the sale of goods in the ordinary course of business;
(18) additional Liens on property or assets (other than the First
Mortgage Bonds Collateral) securing obligations of the Company and its
Restricted Subsidiaries not exceeding $15.0 million at any time; and
(19) Liens to secure any Refinancing (or successive Refinancings) as
a whole, or in part, of any Indebtedness secured by any Lien referred to
in the foregoing clause (7), (8), (9) (other than Liens in respect of
Indebtedness that is retired by the Company or any Restricted Subsidiary
on the Issue Date), (10) or (11) or Liens extending, renewing or
replacing, in whole or in part, such Liens; provided that:
(A) such new Lien shall be limited to all or part of the same
property and assets that secured or, under the written agreements
pursuant to which the original Lien arose, could secure the original
Lien (plus improvements and accessions to, such property or proceeds
or distributions thereof);
(B) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (x) the outstanding
principal amount or, if greater, committed amount of the
Indebtedness described under clause (7), (8), (9), (10) or (11) at
the time the original Lien became a Permitted Lien and (y) an
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amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or
replacement.
For purposes of this definition, the term "Indebtedness" shall be deemed to
include interest on such Indebtedness.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Physical Notes" means certificated Notes in registered form in
substantially the form set forth in Exhibit A-1, with respect to Floating Rate
Notes, and Exhibit A-2, with respect to Fixed Rate Notes.
"Pledge Agreement" means the Pledge Agreement, dated as of the Issue
Date, by and among the Trustee, the Issuer and the Finco Guarantors, as amended,
restated or supplemented from time to time.
"Pledged Collateral" means the "Collateral" (as defined in the
Pledge Agreement).
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"Principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Private Exchange" has the meaning set forth in the Registration
Rights Agreement.
"Private Exchange Notes" has the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" means a legend in the form set forth in
Exhibit B.
"Purchase Agreement" means the purchase agreement entered into among
the Issuer, the Guarantors and the Initial Purchaser.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
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"Qualified Securitization Transaction" means any transaction or
series of transactions that may be entered into by the Company or any Restricted
Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell,
convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of
a transfer by the Company or any Restricted Subsidiary) and (b) any other Person
(in the case of a transfer by a Securitization Subsidiary), or may grant a
security interest in Receivables and Related Assets or Inventory and Related
Assets.
"Rating Agencies" means
(a) S&P;
(b) Moody's; or
(c) if S&P or Moody's or both shall not make a rating of the Notes
publicly available, a nationally recognized securities rating agency or
agencies, as the case may be, selected by the Issuer, which shall be
substituted for S&P or Moody's or both, as the case may be.
"Receivables and Related Assets" means any accounts receivable and
other rights to payment (whether now existing or arising thereafter) of the
Company or any Restricted Subsidiary, and any assets related thereto, including
all collateral securing such accounts receivable and other rights to payment,
all contracts and contract rights and all Guarantees or other obligations in
respect of such accounts receivable and other rights to payment, proceeds of
such accounts receivable and other rights to payment and other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable and other rights to payment.
"Receivables Intercreditor Agreement" means the Existing Receivables
Intercreditor Agreement and any future intercreditor agreement entered into
between the Trustee and any Person that has holds a Permitted Lien on
Receivables and Related Assets, on terms no less favorable to the Holders of the
Notes than the rights provided to the counterparties to the Company in the
Existing Receivables Intercreditor Agreement.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to the terms of this
Indenture.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or Incurred in
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compliance with this Indenture, including Indebtedness that Refinances
Refinancing Indebtedness; provided, however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being Refinanced; and
(3) such Refinancing Indebtedness has an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium
and defeasance costs) under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Restricted Subsidiary that is not a Company Guarantor that
Refinances Indebtedness of the Company or a Company Guarantor or (B)
Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Registration Rights Agreement" means with respect to the Original
Notes, the Registration Rights Agreement dated the Issue Date among the Issuer,
the Guarantors and the Initial Purchaser, as amended from time to time and, and
with respect to any Additional Notes, any comparable agreement.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S-X" means Regulation S-X promulgated under the
Securities Act.
"Related Business" means any business in which the Company was
engaged on the Issue Date and any business related, ancillary or complementary
to any business in which the Company was engaged on the Issue Date, in each case
as reasonably determined by the Board of Directors of the Company in good faith.
"Representative Amount" means a principal amount of not less than
U.S. $1,000,000 for a single transaction in the relevant market at the relevant
time.
"Responsible Officer" when used with respect to the Trustee, means
an officer or assistant officer assigned to the corporate trust department of
the Trustee (or any successor group of the Trustee) with direct responsibility
for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
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"Restricted Note" has the same meaning as "restricted security" set
forth in Rule 144(a)(3) promulgated under the Securities Act; provided, that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Note.
"Restricted Payment" with respect to any Person means:
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its
Capital Stock (other than dividends or distributions payable solely in its
Capital Stock (other than Disqualified Stock) and dividends or
distributions to a Finco Guarantor (prior to a Permitted Finco Collapse
Transaction), the Issuer, the Company or a Restricted Subsidiary, and
other than pro rata dividends or other distributions made by a Subsidiary
that is not a Wholly Owned Subsidiary to minority stockholders (or owners
of an equivalent interest in the case of a Subsidiary that is an entity
other than a corporation));
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company held by any Person or of any
Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of
any option to exchange any Capital Stock (other than into Capital Stock of
the Company that is not Disqualified Stock);
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any Subordinated
Obligations of such Person (other than the Refinancing of Subordinated
Obligations with Refinancing Indebtedness or the purchase, repurchase or
other acquisition of Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of such purchase,
repurchase or other acquisition);
(4) the making of any Investment (other than a Permitted Investment)
in any Person; or
(5) the purchase, repurchase, redemption, acquisition or retirement
for value of the Existing Shareholder Advances.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (i) the commencement of the offering of the Notes to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the date of the original issuance of the Notes.
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"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"Revolving Credit Facility" means any revolving credit, overdraft or
working capital facility or financing arrangement.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to
property owned by the Company or a Restricted Subsidiary on the Issue Date or
thereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Subsidiary" means Ispat Inland Administrative
Service Company (so long as it is a Wholly Owned Subsidiary) and any other
Wholly Owned Subsidiary (or a wholly owned Subsidiary of another Person in which
the Company or any Subsidiary of the Company makes an Investment) to which the
Company or any Subsidiary of the Company transfers Receivables and Related
Assets or Inventory and Related Assets and that engages in no activities other
than in connection with financing of accounts receivable or inventory, as the
case may be, and that is designated by the Board of Directors of the Company (as
provided below) as a Securitization Subsidiary and
(1) no portion of the Indebtedness or any other Obligations
(contingent or otherwise) of which
(A) is Guaranteed by the Company or any Restricted Subsidiary
(excluding Guarantees of Obligations (other than the principal of,
and interest on, Indebtedness) pursuant to Standard Securitization
Undertakings),
(B) is recourse to or obligates the Company or any Restricted
Subsidiary (other than such Securitization Subsidiary) in any way
other than pursuant to Standard Securitization Undertakings, and
(C) subjects any property or asset of the Company or any
Restricted Subsidiary (other than such Securitization Subsidiary),
directly or indirectly,
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contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings,
(2) with which neither the Company nor any Restricted Subsidiary
(other than such Securitization Subsidiary) has any material contract,
agreement, arrangement or understanding other than on terms no less
favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons that are not Affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable of such entity, and
(3) to which neither the Company nor any Restricted Subsidiary
(other than such Securitization Subsidiary) has any obligation to a third
party to maintain or preserve such entity's financial condition or to
cause such entity to achieve certain levels of operating results.
Any designation of a Subsidiary as a Securitization Subsidiary shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Company giving effect to the
designation and an Officers' Certificate certifying that the designation
complied with the preceding conditions and was permitted by this Indenture.
"Senior Indebtedness" means with respect to any Person:
(1) Indebtedness of such Person, whether outstanding on the Issue
Date or thereafter Incurred; and
(2) accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization
relating to such Person whether or not post-filing interest is allowed in
such proceeding) in respect of (A) Indebtedness of such Person for money
borrowed and (B) Indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is
responsible or liable
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are subordinate in right of payment to the Notes or the
Note Guarantee of such Person, as the case may be; provided that Senior
Indebtedness shall not include:
(1) any obligation of such Person to any Subsidiary of such Person;
(2) any liability for Federal, state, local or other taxes owed or
owing by such Person;
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(3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees thereof
or instruments evidencing such liabilities);
(4) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior in any respect
to any other Indebtedness or other obligation of such Person; or
(5) that portion of any Indebtedness which at the time of Incurrence
is Incurred in violation of this Indenture.
"series" with respect to any Note, refers to whether such Note is a
Fixed Rate Note or a Floating Rate Note.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary that are reasonably customary in accounts receivable or
inventory securitization transaction and other limited recourse arrangements
that are customary for such securitizations and do not impair the
characterization of the relevant securitization as a true sale under applicable
law.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to the Notes or a
Note Guarantee of such Person, as the case may be, pursuant to a written
agreement to that effect.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Voting Stock is at the time owned or controlled,
directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
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I/N Tek shall not be deemed to be a Subsidiary for purposes of this Indenture.
"Suspension Period" means any period in which the Notes are rated
Investment Grade by both Rating Agencies and no Default or Event of Default has
occurred and is continuing under this Indenture.
"Telerate Page 3750" means the display designated as "Page 3750" on
the Moneyline Telerate service (or such other page as may replace Page 3750 on
that service).
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of, or obligations
guaranteed by, the United States of America or any agency thereof;
(2) investments in time deposit accounts, certificates of deposit
and money market deposits maturing within 360 days of the date of
acquisition thereof issued by a bank or trust company which is organized
under the laws of the United States of America, any state thereof or any
foreign country recognized by the United States of America, and which bank
or trust company has capital, surplus and undivided profits aggregating in
excess of $50 million (or the foreign currency equivalent thereof) and has
outstanding debt which is rated "A" (or such similar equivalent rating) or
higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act) or any
money-market fund sponsored by a registered broker dealer or mutual fund
distributor;
(3) repurchase obligations with a term of not more than 60 days for
underlying securities of the types described in clause (1) above entered
into with a bank meeting the qualifications described in clause (2) above;
(4) investments in commercial paper, maturing not more than nine
months after the date of acquisition, issued by a corporation (other than
an Affiliate of the Company) organized and in existence under the laws of
the United States of America or any foreign country recognized by the
United States of America with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to Moody's or
"A-1" (or higher) according to S&P; and
(5) investments in securities with maturities of twelve months or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America or by any
political subdivision or taxing authority thereof, and rated at least "A"
by S&P or "A2" by Moody's.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended.
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"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" means, on the Issue Date, Ispat Inland
Empire Inc., III Kote, Inc., III/PCI, Inc. and III Tek, Inc., and any other:
(1) Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors
of the Company in the manner provided below; and
(2) Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of the
Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or holds any Lien (other than Permitted
Liens that do not secure Indebtedness for borrowed money) on any property of,
the Company or any other Subsidiary of the Company that is not a Subsidiary of
the Subsidiary to be so designated; provided, however, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.07 (and in the case of any designation during a Suspension
Period, the Company could have made such designation if no Suspension Period had
been in effect since the Issue Date).
The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that immediately after giving
effect to such designation (A) the Company could Incur $1.00 of additional
Indebtedness under paragraph (a) of Section 4.06 and (B) no Default shall have
occurred and be continuing. Any such designation by such Board of Directors
shall be evidenced to the Trustee by promptly filing with the Trustee a copy of
the resolution of such Board of Directors giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S." and "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia.
"U.S. Dollar Equivalent" means with respect to any monetary amount
in a currency other than U.S. dollars, at any time for determination thereof,
the amount of U.S. dollars obtained by converting such foreign currency involved
in such computation into U.S. dollars at the spot rate for the purchase of U.S.
dollars with the applicable foreign currency as published in The Wall Street
Journal in the "Exchange Rates" column under the heading "Currency Trading" on
the date two Business Days prior to such determination.
Except as set forth in Section 4.06(e), whenever it is necessary to
determine whether the Company has complied with any covenant in this Indenture
or a Default has occurred and an amount is expressed in a currency other than
U.S. dollars, such amount will be
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treated as the U.S. Dollar Equivalent determined as of the date such amount is
initially determined in such currency.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"U.S. Steelmaking Business" means any business material to the
operations of the Company in which the Company was engaged on the Issue Date.
"USWA Mortgage" has the meaning set forth in the definition of
Permitted First Mortgage Bonds Collateral Liens.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary) is owned by the Company or one or more Wholly Owned
Subsidiaries.
SECTION 1.02 Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Additional Amounts"................................................... 4.18
"actual knowledge"..................................................... 7.02
"Affiliate Transaction"................................................ 4.09
"Calculation Agent".................................................... 2.04
"Change of Control Offer".............................................. 4.14(a)
"Change of Control Payment Date"....................................... 4.14(b)
"Change of Control Purchase Price"..................................... 4.14(a)
"Company Parent"....................................................... 1.01
"Covenant Defeasance".................................................. 9.03
"DTC Agent Members".................................................... 2.16(a)
"Events of Default".................................................... 6.01
"Global Notes"......................................................... 2.16(a)
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Term Defined in Section
---- ------------------
"Initial Lien"......................................................... 4.08
"Legal Defeasance"..................................................... 9.02
"Net Proceeds Offer"................................................... 4.10
"Net Proceeds Payment Date"............................................ 4.10
"Offered Price"........................................................ 4.10
"Other Notes".......................................................... 2.02
"Paying Agent"......................................................... 2.04
"Register"............................................................. 2.04
"Registrar"............................................................ 2.04
"Regulation S Global Note"............................................. 2.16(a)
"Regulation S Notes"................................................... 2.02
"Relevant Taxing Jurisdiction"......................................... 4.18
"Restricted Global Note"............................................... 2.16(a)
"Restricted Period".................................................... 2.16(f)
"Rule 144A Notes"...................................................... 2.02
"Successor Company".................................................... 5.01
"Successor Issuer"..................................................... 1.01
"Successor Parent"..................................................... 4.22
"Taxes"................................................................ 4.18
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. All terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by a rule
of the SEC and not otherwise defined herein have the meanings therein assigned
to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(b) "or" is not exclusive;
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(c) words in the singular include the plural, and in the plural
include the singular;
(d) words used herein implying any gender shall apply to all
genders;
(e) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
subsection;
(f) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with the definition of GAAP set forth in
Section 1.01; and
(g) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the payment
of Additional Interest to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof.
ARTICLE TWO
THE NOTES
SECTION 2.01 Amount of Notes.
The Trustee shall authenticate the Original Fixed Rate Notes and the
Original Floating Rate Notes for original issue on the Issue Date upon receipt
of a written order of the Issuer in the form of an Officers' Certificate of the
Issuer. In addition, the Trustee or an authenticating agent shall, upon receipt
of a written order of the Issuer in the form of an Officer's Certificate of the
Issuer and an Opinion of Counsel of the Issuer, authenticate Additional Notes of
any series in accordance with Section 2.19. Such written order shall specify the
amount of Notes of each series to be authenticated and the date on which such
Notes are to be authenticated and, in the case of an issuance of Additional
Notes pursuant to Section 2.19, such Officer's Certificate of the Issuer shall
certify that such issuance shall not be prohibited by Section 4.06.
Upon receipt of an Issuer Request and an Officers' Certificate of
the Issuer certifying that a registration statement relating to an exchange
offer specified in the Registration Rights Agreement is effective under the
Securities Act and that the conditions precedent to a Private Exchange
thereunder have been met, the Trustee shall authenticate additional Notes of
each series in an aggregate principal amount not to exceed $800,000,000 for
issuance in exchange for
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the Notes tendered for exchange pursuant to such exchange offer registered under
the Securities Act or pursuant to a Private Exchange.
SECTION 2.02 Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A-1,
with respect to the Floating Rate Notes, and Exhibit A-2, with respect to the
Fixed Rate Notes, which are incorporated in and form a part of this Indenture.
The Notes may have notations, legends or endorsements required by law, rule or
usage to which the Issuer is subject. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes") shall bear the Private Placement Legend and
include the form of assignment set forth in Exhibit B and Notes offered and sold
in offshore transactions in reliance on Regulation S ("Regulation S Notes")
shall bear the Private Placement Legend and include the form of assignment set
forth in Exhibit B. Notes transferred pursuant to Section 2.17(a) ("Other
Notes") shall be represented by a Physical Note bearing the Private Placement
Legend. Each Note shall be dated the date of its authentication. The Notes shall
be issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof.
Upon the occurrence of the exchange offer in accordance with the
Registration Rights Agreement, Exchange Notes issued by the Issuer shall be
substantially in the form set forth in Exhibit A-1 if exchanged for the Floating
Rate Notes and Exhibit A-2 if exchanged for the Fixed Rate Notes (but shall not
contain paragraph 9 thereof).
The terms and provisions contained in the Notes shall constitute,
and are expressly made, a part of this Indenture and, to the extent applicable,
the Issuer, any Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and agree to be
bound thereby. However, to the extent any provision of the Notes conflicts with
the provisions of this Indenture, the provisions of this Indenture shall govern
and be controlling.
The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar.
SECTION 2.03 Execution and Authentication.
One Officer shall sign the Notes for the Issuer by manual or
facsimile signature.
If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
At any time and from time to time after the execution and delivery
of this Indenture, the Issuer may deliver Notes executed by the Issuer to the
Trustee for authentication,
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together with an Issuer Request for authentication and delivery of such Notes,
and the Trustee, in accordance with such Issuer Request, shall authenticate and
deliver such Notes.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Issuer, and the Issuer shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Upon prior notice to, and approval by (which approval shall not be
unreasonably withheld), the Issuer, the Trustee may appoint an authenticating
agent to authenticate the Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate the Notes whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Issuer and Affiliates of the Issuer. Each Paying Agent is
designated as an authenticating agent for purposes of this Indenture.
SECTION 2.04 Registrar, Paying Agent and Calculation Agent.
The Issuer shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency where Notes may be presented for payment (the
"Paying Agent") and an office or agency where notices and demands to or upon the
Issuer, if any, in respect of the Notes and this Indenture may be served and
will appoint an agent (the "Calculation Agent") to determine the interest rate
on the Floating Rate Notes. The Registrar shall keep a register (the "Register")
of the names and address of the Holders and the Notes and of their transfer and
exchange. The Issuer may have one or more additional Paying Agents. The term
"Paying Agent" includes any additional Paying Agent. The Issuer may change any
Paying Agent, Registrar or Calculation Agent without notice to any Holder. The
Issuer or any of its Affiliates may act as Paying Agent or Registrar but not as
Calculation Agent.
The Issuer shall enter into an appropriate agency agreement, which
shall incorporate applicable provisions of the TIA, with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuer shall notify the Trustee of the
name and address of any such Agent. If the Issuer fails to maintain a Registrar,
Paying Agent or Calculation Agent, or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07.
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The Issuer initially appoints the Trustee as Registrar, Paying Agent
and Calculation Agent in connection with the Notes and this Indenture.
SECTION 2.05 Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of or premium or interest on any series of the Notes (whether such money has
been paid to it by the Issuer or any other obligor on the Notes or any
Guarantor), and the Issuer and the Paying Agent shall notify the Trustee in
writing of any default by the Issuer (or any other obligor on the Notes or any
Guarantor) in making any such payment. Money held in trust by the Paying Agent
need not be segregated except as required by law and in no event shall the
Paying Agent be liable for any interest on any money received by it hereunder.
The Issuer at any time may require the Paying Agent to pay all money held by it
to the Trustee and account for any funds disbursed and the Trustee may at any
time during the continuance of any Event of Default specified in clause (1) or
(2) of Section 6.01 hereof, upon written request to the Paying Agent, require
such Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
SECTION 2.06 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders of each series of Notes. Such list shall be in written form or any
other form capable of being converted into written form within a reasonable
time. If the Trustee is not the Registrar, the Issuer shall furnish to the
Trustee at least five Business Days before each interest payment date for either
series of Notes, and at such other times as the Trustee may request in writing,
a list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Holders or the applicable series of Notes. The
Trustee may rely on the lists of Holders provided by the Issuer.
SECTION 2.07 Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes of either series are
presented to the Registrar with a request from the Holder of such Notes to
register a transfer or to exchange them for an equal principal amount of Notes
of other authorized denominations, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the New York Uniform
Commercial Code are met. Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Registrar,
duly executed by the Holder thereof or its attorneys duly authorized in writing.
To permit registrations of transfers and exchanges, the Issuer shall issue and
execute and the Trustee shall authenticate new Notes evidencing such transfer or
exchange at the Registrar's request in accordance with Section 2.03 hereof. No
service charge shall be made to the Holder for any registration of transfer or
exchange. The Issuer may require
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from the Holder payment of a sum sufficient to cover any transfer taxes or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Section 2.11,
3.06, 3.10, 4.10, 4.14 or 8.05 (in which events the Issuer shall be responsible
for the payment of such taxes). The Registrar shall not be required to exchange
or register a transfer of any Note of a series for a period of 15 days
immediately preceding the mailing of notice of redemption of Notes of such
series to be redeemed or of any Note selected, called or being called for
redemption except the unredeemed portion of any Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in a
Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Issuer and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder's Note in violation of any provision of this Indenture and/or
applicable U.S. federal or state securities laws.
Neither the Trustee nor the Registrar shall have any duty to monitor
the Issuer's compliance with or have any responsibility with respect to the
Issuer's compliance with any U.S. federal or state securities laws.
SECTION 2.08 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee,
or if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a
replacement Note of the applicable series if (a) the Holder of such Note
furnishes to the Issuer and the Trustee evidence reasonably acceptable to them
of the ownership and the destruction, loss or theft of such Note and (b) the
requirements of Section 8-405 of the New York Uniform Commercial Code (or
applicable provision at the time of such replacement) are met. An indemnity bond
shall be posted, sufficient in the judgment of both to protect the Issuer, any
Guarantors, the Trustee or any Paying Agent from any loss that any of them may
suffer if such Note is replaced. The Issuer may charge such Holder for the
Issuer's reasonable out-of-pocket expenses in replacing such Note and the
Trustee may charge the Issuer for the Trustee's expenses (including, without
limitation, attorneys' fees and disbursements) in replacing such Note. Every
replacement Note shall constitute a contractual obligation of the Issuer.
In case any such mutilated, destroyed, lost or stolen Note has
become, or shall become within 30 days, due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such Note.
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SECTION 2.09 Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Issuer.
If the Paying Agent (other than the Issuer, a Subsidiary or an
Affiliate of any thereof) holds, in its capacity as such, on any Maturity Date
or on any optional redemption date, money sufficient to pay all accrued interest
and principal with respect to the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.10 Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes or Notes of any series have concurred in any declaration of
acceleration or notice of default or direction, waiver or consent or any
amendment, modification or other change to this Indenture, Notes owned by the
Issuer or any Person directly or indirectly controlling or controlled by or
under common control with the Issuer shall be disregarded as though they were
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent or any
amendment, modification or other change to this Indenture, only Notes as to
which the Trustee has received an Officers' Certificate of the Issuer stating
that such Notes are so owned shall be so disregarded. Notes so owned which have
been pledged in good faith shall not be disregarded if the pledgee established
to the satisfaction of the Trustee the pledgee's right so to act with respect to
the Notes and that the pledgee is not the Issuer, a Guarantor, any other obligor
on the Notes or any of their respective Affiliates.
SECTION 2.11 Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the
Issuer may prepare and the Trustee shall authenticate temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced in any
authorized denomination. Temporary Notes shall be substantially in the form of
definitive Notes but may have insertions, omissions, substitutions and other
variations that the Issuer considers appropriate for temporary Notes and that
the Issuer shall have identified to the Trustee in writing. Without unreasonable
delay, the Issuer shall
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prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes. Until such exchange, temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes.
SECTION 2.12 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy canceled Notes
and deliver a certificate of destruction thereof to the Issuer unless the Issuer
directs the Trustee in writing to deliver canceled Notes to the Issuer. The
Issuer may not reissue or resell, or issue new Notes to replace, Notes that the
Issuer has redeemed or paid, or that have been delivered to the Trustee for
cancellation.
SECTION 2.13 Defaulted Interest.
If the Issuer defaults on a payment of interest on the Notes of any
series, it shall pay the defaulted interest in any lawful manner, plus (to the
extent permitted by law) any interest payable on the defaulted interest, in
accordance with paragraph 1 of the applicable Notes, to the Persons who are
Holders on a subsequent special record date, which date shall be at least five
Business Days prior to the payment date. The Issuer shall fix such special
record date and payment date in a manner satisfactory to the Trustee. At least
10 days before such special record date, the Issuer shall mail to each Holder a
notice that states the special record date, the payment date and the amount of
defaulted interest, and interest payable on defaulted interest, if any, to be
paid. The Issuer may make payment of any defaulted interest in any other lawful
manner not inconsistent with the requirements (if applicable) of any securities
exchange on which the Notes of any series may be listed and, upon such notice as
may be required by such exchange, if, after written notice given by the Issuer
to the Trustee of the proposed payment pursuant to this sentence, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.14 CUSIP Number.
The Issuer in issuing any series of Notes may use one or more
"CUSIP" or "ISIN" numbers, and if so, each such CUSIP or ISIN number shall be
included in notices of redemption or exchange as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP or ISIN number printed in the notice or on
the Notes, and that reliance may be placed only on the other identification
numbers printed on the Notes. The Issuer shall promptly notify the Trustee of
any such CUSIP or ISIN number used by the Issuer in connection with the issuance
of the Notes and of any change in the CUSIP or ISIN number.
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SECTION 2.15 Deposit of Moneys.
Prior to noon, New York City time, on each interest payment date and
the Maturity Date for each series of Notes, the Issuer shall have deposited with
the Paying Agent in immediately available funds money sufficient to make cash
payments due on the applicable series of Notes on such interest payment date or
the Maturity Date, as the case may be, in a timely manner which permits the
Trustee to remit payment to the Holders of such series of Notes on such interest
payment date or the Maturity Date, as the case may be. Except as otherwise
provided herein, the principal and interest on Global Notes shall be payable to
DTC or the nominee of DTC, as the case may be, as the sole registered owner and
the sole holder of the Global Notes represented thereby. The principal and
interest on Physical Notes shall be payable, either in person or by mail, at the
office of the Paying Agent.
SECTION 2.16 Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes initially shall be represented by one or more
notes of each series in registered, global form without interest coupons
(collectively, the "Restricted Global Note"). Regulation S Notes initially shall
be represented by one or more notes in registered, global form without interest
coupons (collectively, the "Regulation S Global Note," and, together with the
Restricted Global Note and any other global notes representing Notes, the
"Global Notes"). The Global Notes shall each bear a legend as set forth in
Exhibit C. The Global Notes initially shall (i) be registered in the name of DTC
or the nominee of DTC, in each case, for credit to an account of DTC Agent
Members, (ii) be delivered to the Trustee as custodian for DTC and (iii) in the
case of the Restricted Global Notes or the Regulation S Global Notes, bear
legends as set forth in Exhibit B.
Neither members of, nor direct or indirect participants in, DTC
("DTC Agent Members") shall have any rights under this Indenture with respect to
any Global Note held on their behalf by DTC, or the Trustee as its custodian, or
under the Global Notes, and DTC may be treated by the Issuer, the Trustee and
any agent of the Issuer or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and DTC Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of Global Notes shall be limited to transfer of such
Global Notes in whole, but not in part, to DTC, its successors or their
respective nominees. Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of DTC and the provisions of Section 2.17. In addition, a Global Note
shall be exchangeable for Physical Notes if (i) DTC notifies the Issuer that it
is unwilling or unable to continue as depository for such Global Note and the
Issuer thereupon fails to
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appoint a successor depository within 90 days of such event, or (ii) the Issuer,
in its sole discretion, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Notes. In all cases, Physical Notes delivered in
exchange for any Global Note or beneficial interests therein shall be registered
in the names, and issued in any approved denominations, requested by or on
behalf of DTC (in accordance with its customary procedures).
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to clause
(b) of this Section 2.16, the Registrar shall (if one or more Physical Notes are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal amount
of the beneficial interest in such Global Note to be transferred, and the Issuer
shall execute, and the Trustee shall upon receipt of a written order from the
Issuer authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of any Global Note as an
entirety to beneficial owners pursuant to clause (b) of this Section 2.16, such
Global Note shall be deemed to be surrendered to the Trustee for cancellation,
and the Issuer shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by DTC in writing in exchange for its
beneficial interest in such Global Note, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note delivered in exchange for an interest in a
Global Note that is a Restricted Note pursuant to clause (b), (c) or (d) of this
Section 2.16 shall, except as otherwise provided by clause (c) of Section 2.17,
bear the Private Placement Legend unless the Issuer determines otherwise in
compliance with applicable law.
(f) On or prior to the 40th day after the later of the commencement
of the Offering and the Issue Date (such period through and including such 40th
day, the "Restricted Period"), a beneficial interest in the Regulation S Global
Note may be held only through Euroclear or Clearstream, as indirect participants
in DTC, unless transferred to a Person who takes delivery in the form of an
interest in the Restricted Global Note only upon receipt by the Trustee and the
Issuer of a written certification from the transferor to the effect that such
transfer is being made (i)(A) to a Person whom the transferor reasonably
believes is a Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A or (B) pursuant to another exemption from the
registration requirements under the Securities Act which is accompanied by an
Opinion of Counsel regarding the availability of such exemption and (ii) in
accordance with all applicable securities laws of any state of the United States
or any other jurisdiction.
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(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee (i) a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred shall be held immediately thereafter through Euroclear or
Clearstream and (ii) at the option of the Trustee and the Issuer, an Opinion of
Counsel reasonably satisfactory to the Trustee and the Issuer to the effect that
such transfer is in accordance with Regulation S or Rule 144, as the case may
be.
(h) Any beneficial interest in a Global Note that is transferred to
a Person who takes delivery in the form of an interest in another Global Note
shall, upon transfer, cease to be an interest in such Global Note and become an
interest in such other Global Note and, accordingly, shall thereafter be subject
to all transfer restrictions and other procedures applicable to beneficial
interests in such other Global Note for as long as it remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including DTC Agent Members and Persons that may hold
interests through DTC Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.17 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Note to any Institutional
Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note, whether
or not such Note bears the Private Placement Legend, if (A) the requested
transfer is after the time period referred to in Rule 144(k) under the
Securities Act, or such other date as such Note shall be freely
transferable under Rule 144 as certified in an Officers' Certificate or
(B) (1) in the case of a transfer to an Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons), the proposed transferee
has delivered to the Registrar and the Issuer a certificate substantially
in the form of Exhibit D hereto and, at the request of the Registrar and
the Issuer, an Opinion of Counsel reasonably satisfactory to the Registrar
and the Issuer to the effect that such transfer is in accordance with the
Securities Act or (2) in the case of a transfer to a Non-U.S. Person
(including a QIB), the proposed transferor has delivered to the Registrar
and the Issuer a certificate substantially in the form of Exhibit E hereto
and, at the request of the Registrar and the Issuer, an Opinion of Counsel
reasonably satisfactory to the Registrar or the Issuer to the effect that
such
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transfer is in accordance with the Securities Act; provided that in the
case of any transfer of a Note bearing the Private Placement Legend for a
Note not bearing the Private Placement Legend, the Registrar has received
an Officers' Certificate authorizing such transfer and, at the request of
the Registrar and the Issuer, the proposed transferor shall deliver an
Opinion of Counsel reasonably satisfactory to the Registrar and the Issuer
to the effect that such transfer is in accordance with the Securities Act;
and
(ii) if the proposed transferor is a DTC Agent Member holding a
beneficial interest in the Restricted Global Note, and the proposed
transferee is either a Non-U.S. Person who is receiving a beneficial
interest in the Regulation S Global Note or any Person who requests
delivery in the form of Physical Notes, upon receipt by the Registrar of
(A) the documents, if any, required by clause (a)(i) of this Section 2.17
and (B) instructions given in accordance with DTC's and the Registrar's
procedures, whereupon (C) the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Restricted
Global Note in an amount equal to the principal amount of the beneficial
interest in the Restricted Global Note to be transferred, and (D) (I) with
respect to transfers to a Non-U.S. Person receiving a beneficial interest
in the Regulation S Global Note, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of the
beneficial interest in the Restricted Global Note transferred or (II) with
respect to a Person who requests delivery in the form of Physical Notes,
the Issuer shall execute and the Trustee shall authenticate and make
available for delivery one or more Physical Notes of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed registration of transfer of a
Restricted Note to a QIB (excluding transfers to Non-U.S. Persons):
(i) (A) if the Restricted Note consists of Physical Notes, the
Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on such Holder's
Note stating, or has otherwise advised the Issuer and the Registrar in
writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification provided on
such Holder's Note stating, or has otherwise advised the Issuer and the
Registrar in writing, that such transferee represents and warrants that it
is purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Issuer as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A, and (B) if the Restricted Note consists of an interest in
the
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Restricted Global Note, unless otherwise provided in this Indenture, the
transfer of such interest may only be effected through the book-entry
system maintained by the Depository; and
(ii) if the proposed transferee is a DTC Agent Member, and the Notes
to be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Restricted Global Note, upon receipt by
the Registrar of instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Restricted
Global Note in an amount equal to the principal amount of the Physical
Notes to be transferred, and the Trustee shall cancel the Physical Notes
so transferred.
(c) Transfers of Interests in a Regulation S Global Note Prior to
Expiration of Restricted Period. The following provisions shall apply with
respect to the registration of any proposed transfer of interests in a
Regulation S Global Note prior to the expiration of the Restricted Period:
(i) the Registrar shall register the transfer of an interest in the
Regulation S Global Note, whether or not such Global Note bears the
Private Placement Legend if (x) the proposed transferor has delivered to
the Registrar a certificate stating that the proposed transferee is a
Non-U.S. Person (except for a transfer to an Initial Purchaser) or (y) the
proposed transferee is a QIB and the Registrar has received the
documentation required by Section 2.17(b) or the proposed transfer is to
any Institutional Accredited Investor which is not a QIB and the Registrar
has received the documentation required by Section 2.17(a); and
(ii) if the proposed transferee is a DTC Agent Member, upon receipt
by the Registrar of the documents referred to in clause (i)(x) above, if
required, and instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books and
records the date and amount of such transfer of an interest in the
Regulation S Global Note.
(d) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) it has received the Officers' Certificate
required by paragraph (a)(i)(A) of this Section 2.17, (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act.
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(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges and agrees to the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and further agrees that it shall transfer such Note
only as provided in this Indenture.
The Registrar shall retain for a period of three years, copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Issuer shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable notice to the Registrar.
SECTION 2.18 Computation of Interest.
Interest on each series of Notes shall be computed on the basis set
forth in the applicable Note.
SECTION 2.19 Issuance of Additional Notes.
The Issuer shall be entitled to issue Additional Notes under this
Indenture which shall have substantially identical terms as the Original Notes
of the applicable series, other than with respect to the date of issuance, issue
price, amount of interest payable on the first payment date applicable thereto
or upon a registration default as provided under a registration rights agreement
related thereto and terms of optional redemption, if any (and, if such
Additional Notes shall be issued in the form of Exchange Notes, other than with
respect to transfer restrictions); provided that (i) such issuance shall be made
in compliance with Section 4.06 and (ii) the Company has issued a like aggregate
principal amount of First Mortgage Bonds of the corresponding series to the
Issuer or a Finco Guarantor which have been pledged as Collateral.
With respect to any Additional Notes, the Issuer shall set forth in
a resolution of its Board of Directors (or a duly appointed committee thereof)
and in an Officers' Certificate, a copy of each of which shall be delivered to
the Trustee, the following information:
(i) the aggregate principal amount of Notes of each series
outstanding immediately prior to the issuance of such Additional Notes;
(ii) the aggregate principal amount of such Additional Notes of each
series to be authenticated and delivered pursuant to this Indenture;
(iii) the issue price and the issue date of each series of such
Additional Notes and the amount of interest payable on the first payment
date applicable thereto; and
(iv) whether such Additional Notes shall be transfer restricted
securities or shall be registered securities issued in the form of
Exchange Notes.
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ARTICLE THREE
REDEMPTION
SECTION 3.01 Election To Redeem; Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Section 3.07 or
3.08 of this Indenture, at least 30 days prior to the Redemption Date (unless a
shorter notice shall be agreed to in writing by the Trustee) but not more than
60 days before the Redemption Date, the Issuer shall notify the Trustee in
writing of the Redemption Date, the principal amount of Notes of each series to
be redeemed and the redemption prices, and deliver to the Trustee an Officers'
Certificate stating that such redemption shall comply with the conditions
contained in Section 3.07 or Section 3.08, as applicable, of this Indenture.
Notice given to the Trustee pursuant to this Section 3.01 may not be revoked
after the time that notice is given to Holders pursuant to Section 3.03.
SECTION 3.02 Selection by Trustee of Notes To Be Redeemed.
In the event that fewer than all of the Notes of any series are to
be redeemed, the Trustee shall select the Notes of such series to be redeemed,
if the Notes of such series are listed on a national securities exchange, in
accordance with the rules of such exchange or, if the Notes of such series are
not so listed, either on a pro rata basis, by lot or in such other manner as the
Trustee shall deem fair and appropriate; provided, however, that if a partial
redemption is made with the proceeds of an Equity Offering, selection of the
Fixed Rate Notes or portions thereof for redemption shall be made by the Trustee
only on a pro rata basis or on as nearly a pro rata basis as is practicable
(subject to DTC procedures), unless such method is otherwise prohibited. The
Trustee shall promptly notify the Issuer of the Notes of each series selected
for redemption and, in the case of any Notes selected for partial redemption,
the principal amount thereof to be redeemed. The Trustee may select for
redemption portions of the principal of the Notes that have denominations larger
than $1,000. Notes and portions thereof the Trustee selects shall be redeemed in
amounts of $1,000 or whole multiples of $1,000. For all purposes of this
Indenture unless the context otherwise requires, provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
SECTION 3.03 Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption
Date, the Issuer shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at his or her last
address as the same appears on the Register.
The notice shall identify the Notes to be redeemed (including the
CUSIP or ISIN numbers thereof, if any) and shall state:
(1) the Redemption Date;
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(2) the redemption price and the amount of premium, if any, and
accrued and unpaid interest to be paid;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that unless the Issuer defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date;
(7) the provision of this Indenture pursuant to which the Notes
called for redemption are being redeemed;
(8) the aggregate principal amount of Notes that are being redeemed;
and
(9) that no representation is made as to the correctness or accuracy
of the CUSIP or ISIN number, if any, listed in such notice or printed on
the Notes.
At the Issuer's written request, the Trustee shall give the notice
of redemption in the Issuer's name and at the Issuer's sole expense; provided,
however, that the Issuer shall provide the information to be stated in such
notice as provided in the preceding paragraph.
SECTION 3.04 Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including premium, if any, plus accrued and unpaid
interest to the Redemption Date. Upon surrender to the Paying Agent, such Notes
shall be paid at the redemption price, including premium, if any, plus accrued
and unpaid interest to the Redemption Date; provided that if the Redemption Date
is after a regular record date and on or prior to the interest payment date, the
accrued interest shall be payable to the Holder of the redeemed Notes registered
on the relevant record date; provided, further, that if a Redemption Date is not
a Business Day, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 3.05 Deposit of Redemption Price.
On or prior to noon, New York City time, on each Redemption Date,
the Issuer shall deposit with the Paying Agent in immediately available funds
money sufficient to pay the
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redemption price of, including premium, if any, and accrued and unpaid interest
on all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Issuer to
the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of, including premium, if any, and accrued and unpaid interest
on Notes called for redemption shall have been deposited with the Paying Agent
in accordance with the preceding paragraph, the Notes called for redemption
shall cease to accrue interest and the only right of the Holders of such Notes
shall be to receive payment of the redemption price of, premium, if any, and,
subject to the first proviso in Section 3.04, accrued and unpaid interest on
such Notes to the Redemption Date. If any Note surrendered for redemption shall
not be so paid, interest shall be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case, at the rate and in the manner
provided in the Notes.
SECTION 3.06 Notes Redeemed in Part.
Upon surrender of a Note of a series that is redeemed in part, the
Trustee shall authenticate for the Holder thereof a new Note of such series
equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07 Optional Redemption of Fixed Rate Notes.
Except as set forth in the following paragraph and Section 3.10, the
Issuer may not redeem the Fixed Rate Notes prior to April 1, 2009. On and after
April 1, 2009, the Issuer may redeem all or a portion of the Fixed Rate Notes
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed in percentages of principal amount on the Redemption Date), plus
accrued and unpaid interest to the Redemption Date (subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on April 1 of the years set forth below:
Year Redemption Price
- ---- ----------------
2009............................................. 104.875%
2010............................................. 103.250%
2011............................................. 101.625%
2012 and thereafter.............................. 100.000%
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Notwithstanding the foregoing, before April 1, 2007, the Issuer may,
at its option, on one or more occasions redeem up to 35% of the aggregate
principal amount of the Fixed Rate Notes (including Additional Notes, if any,
that are Fixed Rate Notes) originally issued at a redemption price (expressed as
a percentage of principal amount) of 109-3/4%, plus accrued and unpaid interest
to the Redemption Date, with the net cash proceeds from one or more Equity
Offerings to the extent, in the event such Equity Offering is made by Parent,
such proceeds are actually contributed to the Company; provided that (1) at
least 65% of the aggregate principal amount of Fixed Rate Notes originally
issued remains outstanding immediately after the occurrence of each such
redemption (other than Fixed Rate Notes held, directly or indirectly, by the
Issuer or its Affiliates); and (2) each such redemption occurs within 60 days
after the date of the related Equity Offering.
SECTION 3.08 Optional Redemption of Floating Rate Notes.
Except as set forth in Section 3.10, the Issuer may not redeem the
Floating Rate Notes prior to April 1, 2006. On and after April 1, 2006, the
Issuer may redeem all or a portion of the Floating Rate Notes upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed in
percentages of principal amount on the Redemption Date), plus accrued and unpaid
interest to the Redemption Date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the 12-month period commencing on April 1 of
the years set forth below:
Year Redemption Price
- ---- ----------------
2006............................................. 103.000%
2007............................................. 102.000%
2008............................................. 101.000%
2009 and thereafter.............................. 100.000%
SECTION 3.09 Purchase of Notes.
The Issuer or any of its Subsidiaries shall have the right at any
time and from time to time to purchase Notes in the open market (which shall
include purchase from or through an investment dealer, investment bank or firm
holding membership in a stock exchange or the National Association of Securities
Dealers, Inc.) or by tender or by private contract or otherwise, at any price,
provided that the Issuer complies with any securities laws or regulations
applicable to any such purchase including, but not limited to Rule 14e-1 under
the Exchange Act.
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SECTION 3.10 Redemption for Changes in Withholding Tax.
The Issuer will be entitled to redeem the Notes, at its option, at
any time as a whole but not in part, upon not less than 30 nor more than 60
days' notice, at a price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest (if any) to the Redemption Date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date), in the event the Issuer has become or
would become obligated to pay, on the next date on which any amount would be
payable with respect to the Notes, any Additional Amounts or indemnification
payments as a result of:
(1) a change in or an amendment to the laws (including any
regulations promulgated thereunder) of a Relevant Taxing Jurisdiction,
which change or amendment is announced after the date of the Offering
Memorandum; or
(2) any change in or amendment to any official position regarding
the application or interpretation of such laws or regulations, which
change or amendment is announced after the date of the Offering
Memorandum,
and, in each case, the Issuer cannot avoid such obligation by taking reasonable
measures available to it.
Before the Issuer publishes or mails notice of redemption of the
Notes as described above, the Issuer will deliver to the Trustee an Officers'
Certificate to the effect that it cannot avoid its obligation to pay Additional
Amounts by taking reasonable measures available to it and an opinion of
independent legal counsel of recognized standing stating that the Issuer would
be obligated to pay Additional Amounts as a result of a change in tax laws or
regulations or the application or interpretation of such laws or regulations. No
such notice of redemption may be given more than 60 days before or more than 270
days after the Issuer first becomes liable to pay any Additional Amounts or
indemnification payments as a result of a change or amendment described above.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Notes.
The Issuer shall pay the principal of and interest (including all
Additional Interest) on the Notes on the dates and in the manner provided in the
Notes and this Indenture. An installment of principal or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent (if other
than the Issuer, a Subsidiary of the Issuer or any Guarantor) holds on that date
money designated for and sufficient to pay such installment.
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The Issuer shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
installments of interest, to the extent lawful, at the rate specified in the
Notes of each series.
SECTION 4.02 Reports to Holders.
Notwithstanding that the Issuer and the Guarantors may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Issuer and the Guarantors will file with the SEC and provide the
Trustee and Holders of Notes with such annual reports and such information,
documents and other reports as are specified in Sections 13 and 15(d) of the
Exchange Act and applicable to a U.S. corporation subject to such Sections, such
information, documents and other reports to be so filed and provided at the
times specified for the filings of such information, documents and reports under
such Sections (which shall include (i) consolidated financial statements of
Ispat Inland, L.P. and its Subsidiaries, including the Issuer, prior to a
Permitted Finco Collapse Transaction and (ii) financial statements of the Issuer
following a Permitted Finco Collapse Transaction); provided, that in lieu of any
annual report required of U.S. corporations, Parent may file and provide such
annual report required of foreign private issuers subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act.
In addition, the Issuer and the Guarantors shall furnish to the
Holders of the Notes and to prospective investors, upon the requests of such
Holders, any information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act so long as the Notes are not freely transferable under
the Securities Act.
SECTION 4.03 Waiver of Stay, Extension or Usury Laws.
The Issuer and any Guarantors covenant (to the extent that they may
lawfully do so) that they shall not at any time insist upon, or plead (as a
defense or otherwise) 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 which
would prohibit or forgive the Issuer and any Guarantors from paying all or any
portion of the principal of, premium, if any, and/or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that they may lawfully do so) the Issuer and any Guarantors hereby
expressly waive all benefit or advantage of any such law, and covenant that they
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 4.04 Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Issuer and the Guarantors during such fiscal year or
fiscal quarter, as the case may be, has been made under
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the supervision of the signing Officers with a view to determining whether the
Issuer and each Guarantor has kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Issuer
and each Guarantor 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 shall have occurred, describing all such Defaults of which he or she may
have knowledge and what action the Issuer is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Issuer and any
Guarantors are taking or propose to take with respect thereto.
(b) The Issuer and the Guarantors shall, so long as any of the Notes
are outstanding, deliver to the Trustee, forthwith and, in any event within 30
days, upon any Officer becoming aware of any Default, an Officers' Certificate
specifying such Default and what action the Issuer and any Guarantors are taking
or propose to take with respect thereto.
(c) The Issuer shall promptly provide written notice to the Trustee
of any change in its fiscal year.
SECTION 4.05 Taxes.
The Issuer and any Guarantors shall, and shall cause each of their
Subsidiaries to, pay prior to delinquency all material taxes, assessments, and
governmental levies except as contested in good faith and by appropriate
proceedings.
SECTION 4.06 Limitation on Indebtedness.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided that
the Company and the Company Guarantors will be entitled to Incur Indebtedness
if, on the date of such Incurrence and after giving effect thereto on a pro
forma basis, no Default has occurred and is continuing and the Consolidated
Coverage Ratio exceeds 2.0 to 1.
(b) Notwithstanding the foregoing paragraph (a), the Company and the
Restricted Subsidiaries will be entitled to Incur any or all of the following
Indebtedness:
(1) Indebtedness Incurred pursuant to the Credit Agreements
(including any Guarantees thereof); provided that, after giving effect to
any such Incurrence, the aggregate principal amount of all Indebtedness
Incurred under this clause (1) and then
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outstanding does not exceed the sum of (x) 65% of the book value of the
inventory of the Company and its Restricted Subsidiaries (other than any
inventory constituting Inventory and Related Assets pledged, sold or
otherwise transferred or encumbered in connection with a Qualified
Securitization Transaction); and (y) 85% of the book value of the accounts
receivable of the Company and its Restricted Subsidiaries (other than any
accounts receivable constituting Receivables and Related Assets pledged,
sold or otherwise transferred or encumbered in connection with a Qualified
Securitization Transaction);
(2) Indebtedness owed to and held by the Company or a Wholly Owned
Subsidiary; provided, that (A) any subsequent issuance or transfer of any
Capital Stock which results in any such Wholly Owned Subsidiary ceasing to
be a Wholly Owned Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or a Wholly Owned Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the obligor thereon and (B) if the Company is the obligor
on such Indebtedness (other than customary Indebtedness to a
Securitization Subsidiary or Indebtedness to a Company Guarantor), such
Indebtedness is expressly subordinated after a Default to the prior
payment in full in cash of all obligations with respect to the Notes;
(3) Indebtedness Incurred under the First Mortgage Bonds in an
aggregate principal amount of $800.0 million issued as Collateral for the
Notes;
(4) Indebtedness outstanding on the Issue Date (but excluding
Indebtedness described in clause (1), (2) or (3) of this Section 4.06(b));
(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding
on or prior to the date on which such Subsidiary was acquired by the
Company (other than Indebtedness Incurred in connection with, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to
which such Subsidiary became a Subsidiary or was acquired by the Company);
provided that on the date of such acquisition and after giving pro forma
effect thereto, the Company would have been able to Incur at least $1.00
of additional Indebtedness pursuant to paragraph (a) of this Section 4.06;
(6) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (3), (4) or (5) above,
this clause (6) or clause (17) below; provided that to the extent such
Refinancing Indebtedness directly or indirectly Refinances Indebtedness of
a Subsidiary Incurred pursuant to clause (5), such Refinancing
Indebtedness shall be Incurred only by such Subsidiary;
(7) Hedging Obligations Incurred to protect the Company and its
Restricted Subsidiaries from fluctuations in interest rates, commodity
prices and exchange rates and not for speculative purposes;
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(8) Indebtedness Incurred by a Securitization Subsidiary in
connection with a Qualified Securitization Transaction; provided that in
the event such Securitization Subsidiary ceases to qualify as a
Securitization Subsidiary or such Indebtedness in any other manner falls
outside this clause (8), such Indebtedness will be deemed, in each case,
to be Incurred at such time by such Securitization Subsidiary other than
in reliance on this clause (8);
(9) Indebtedness (including Capital Lease Obligations) of the
Company or any Restricted Subsidiary (including any Refinancing
Indebtedness with respect thereto) Incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including any
Indebtedness assumed in connection with the acquisition of any such
assets, in an aggregate principal amount which, when taken together with
all other Indebtedness of the Company or any Restricted Subsidiary
Incurred pursuant to this clause (9) and then outstanding, does not exceed
$50.0 million;
(10) Indebtedness of the Company or any Restricted Subsidiary
arising from customary agreements providing for indemnification,
adjustment of purchase price or similar obligations, in each case,
Incurred or assumed in connection with the disposition of any business,
fixed or capital assets or a Subsidiary;
(11) any Guarantee by the Company or a Company Guarantor of any
Indebtedness of the Company or a Restricted Subsidiary (other than a
Securitization Subsidiary and other than Indebtedness of a Restricted
Subsidiary to which the proviso to clause (6) applies) that was permitted
to be Incurred by the Company or such Restricted Subsidiary under the
terms of this Section 4.06 at the time so Incurred;
(12) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business, but only to the extent that such Indebtedness is
satisfied within five Business Days of Incurrence;
(13) obligations of the Company or any Restricted Subsidiary in
respect of bid, performance, surety or appeal bonds and completion
guarantees provided in the ordinary course of business of the Company and
its Restricted Subsidiaries;
(14) Indebtedness consisting of Note Guarantees of the Company and
the Company Guarantors;
(15) Subordinated Obligations in an aggregate amount not exceeding
$100.0 million at any time outstanding; provided that the Stated Maturity
of such Subordinated Obligations is no earlier than the 91st day following
the Stated Maturity of the Fixed Rate Notes;
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(16) Indebtedness of the Company and the Company Guarantors in an
aggregate principal amount not to exceed $50.0 million at any time
outstanding; and
(17) Indebtedness of the Company or any Restricted Subsidiary
incurred during any Suspension Period.
(c) Notwithstanding the foregoing, the Company shall not permit the
aggregate principal amount of Bonds outstanding at any one time to exceed
$900.0 million plus, for as long as the PBGC Agreement is in effect, up to
$160 million of Series X Bonds pledged to the PBGC.
(d) For purposes of determining compliance with this Section 4.06,
(1) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described above, the Company, in its
sole discretion, will classify such item of Indebtedness at the time of
Incurrence and only be required to include the amount and type of such
Indebtedness in one of the above clauses and (2) the Company will be
entitled to divide and classify an item of Indebtedness in more than one
of the types of Indebtedness described above.
(e) For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness where the
Indebtedness Incurred is denominated in a different currency, the amount
of such Indebtedness will be the U.S. Dollar Equivalent determined on the
date of the Incurrence of such Indebtedness; provided that if any such
Indebtedness denominated in a different currency is subject to a Currency
Agreement with respect to U.S. dollars covering all principal, premium, if
any, and interest payable on such Indebtedness, the amount of such
Indebtedness expressed in U.S. dollars will be as provided in such
Currency Agreement. The principal amount of any Refinancing Indebtedness
Incurred in the same currency as the Indebtedness being Refinanced will be
the U.S. Dollar Equivalent of the Indebtedness being Refinanced, except to
the extent that (1) such U.S. Dollar Equivalent was determined based on a
Currency Agreement, in which case the Refinancing Indebtedness will be
determined in accordance with the preceding sentence, and (2) the
principal amount of the Refinancing Indebtedness exceeds the principal
amount of the Indebtedness being Refinanced, in which case the U.S. Dollar
Equivalent of such excess will be determined on the date such Refinancing
Indebtedness is Incurred.
(f) At any time other than during a Suspension Period, the Company
will not, and will not permit any Company Guarantor to, directly or
indirectly, Incur any Indebtedness that is or purports to be by its terms
(or by the terms of any agreement governing such Indebtedness)
subordinated to any other Indebtedness of the Company or of such Company
Guarantor, as the case may be, unless such Indebtedness is also by its
terms (or by the terms of any agreement governing such Indebtedness) made
expressly subordinate to the First Mortgage Bonds (in the
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Bonds (in the case of the Company) and the Note Guarantee of the Company or such
Company Guarantor, as the case may be, to the same extent and in the same manner
as such Indebtedness is subordinated to such other Indebtedness of the Company
or such Company Guarantor, as the case may be.
SECTION 4.07 Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted
Subsidiary, directly or indirectly, to make a Restricted Payment if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company would not be permitted to Incur an additional $1.00
of Indebtedness pursuant to paragraph (a) of Section 4.06; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of (without
duplication):
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of the
first full fiscal quarter commencing after the Issue Date to the end
of the most recent fiscal quarter for which financial statements
have been made publicly available on or prior to the date of such
Restricted Payment (or, in case such Consolidated Net Income shall
be a deficit, minus 100% of such deficit); plus
(B) 100% of the aggregate Net Cash Proceeds received by the
Company from the issuance or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Issue Date (other than an
issuance or sale to a Subsidiary of the Company and other than an
issuance or sale to an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the
benefit of their employees) and 100% of any cash capital
contribution received by the Company from its shareholders
subsequent to the Issue Date; plus
(C) the amount by which Indebtedness of the Company issued
after the Issue Date is reduced on the Company's balance sheet upon
the conversion or exchange (other than by a Subsidiary of the
Company) subsequent to the Issue Date of any Indebtedness of the
Company into Capital Stock (other than Disqualified Stock) of the
Company (less the amount of any cash, or the fair value of any other
property, distributed by the Company upon such conversion or
exchange); plus
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(D) an amount equal to the sum of (x) the net reduction in the
Investments (other than Permitted Investments) made by the Company
or any Restricted Subsidiary in any Person after the Issue Date
resulting from repurchases, repayments or redemptions of such
Investments by such Person, proceeds realized on the sale of such
Investment and proceeds representing the return of capital, in each
case received by the Company or any Restricted Subsidiary, (y) the
amount of any Guarantee or similar arrangement that has terminated
or expired or by which it has been reduced to the extent that it was
treated as a Restricted Payment after the Issue Date, net of any
amounts paid by the Company or a Restricted Subsidiary in respect of
such Guarantee or similar arrangement, and (z) to the extent such
Person is an Unrestricted Subsidiary, the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market
value of the net assets of such Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted Subsidiary;
provided, however, that the amounts set forth in clauses (x), (y)
and (z) above shall not exceed, in the case of any such Person or
Unrestricted Subsidiary, the amount of Investments (excluding
Permitted Investments) previously made and treated as a Restricted
Payment by the Company or any Restricted Subsidiary in such Person
or Unrestricted Subsidiary as reduced pursuant to clause (b)(7)
below; minus
(E) an amount equal to the contributions required to be made
by the Company or any Restricted Subsidiary to the Ispat Inland Inc.
Pension Plan following the Issue Date pursuant to Section III.A.4 of
the July 9, 2003 amendment to the PBGC Agreement relating to excess
EBITDA contributions to the Ispat Inland Inc. Pension Plan.
(b) The preceding provisions will not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds of the
substantially concurrent sale of, or made by exchange for, Capital Stock
of the Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary of the Company or an employee stock
ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees) or a substantially
concurrent cash capital contribution received by the Company from its
shareholders; provided that (A) such Restricted Payment shall be excluded
in the calculation of the amount of Restricted Payments under clause (3)
of paragraph (a) above and (B) the Net Cash Proceeds from such sale or
such cash capital contribution (to the extent so used for such Restricted
Payment) shall be excluded from the calculation of amounts under clause
(3)(B) of paragraph (a) above;
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company or a Company Guarantor made by exchange for, or out of the
proceeds of the substantially concurrent sale of,
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Subordinated Obligations; provided that (A) the Stated Maturity of the
Subordinated Obligations being issued or exchanged to purchase, redeem,
defease, acquire or retire for value such existing Subordinated
Obligations shall be no earlier than the 91st day following the Maturity
Date of the Fixed Rate Notes and (B) such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value shall
be excluded in the calculation of the amount of Restricted Payments under
clause (3) of paragraph (a) above;
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this Section 4.07; provided that at the time of payment of such
dividend, no other Default shall have occurred and be continuing (or
result therefrom); provided, further, that such dividend shall be included
in the calculation of the amount of Restricted Payments under clause (3)
of paragraph (a) above;
(4) so long as no Default has occurred and is continuing, the
repurchase or other acquisition of shares of Capital Stock of Parent or
any of its Subsidiaries from employees, former employees, directors or
former directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements (including employment
agreements) or plans (or amendments thereto) approved by the Board of
Directors of Parent under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such Capital Stock;
provided that the aggregate amount of such repurchases and other
acquisitions shall not exceed $1,000,000 in any calendar year; provided,
further, that such repurchases and other acquisitions shall be excluded in
the calculation of the amount of Restricted Payments under clause (3) of
paragraph (a) above;
(5) Investments in the Existing Joint Ventures in an aggregate
amount not exceeding $15.0 million per twelve-month period since the Issue
Date; provided that to the extent Investments in the Existing Joint
Ventures actually made in any twelve-month period are less than the amount
permitted to be made (giving effect to all previous carryforwards on a
cumulative basis), the amount of the difference may be carried forward and
used in a subsequent twelve-month period; provided, further, that such
Investments shall be excluded in the calculation of the amount of
Restricted Payments under clause (3) of paragraph (a) above;
(6) advances to the Existing Joint Ventures to fund working capital
requirements in the ordinary course of business in an aggregate principal
amount outstanding at any time not to exceed $10.0 million; provided that
such advances shall be excluded in the calculation of the amount of
Restricted Payments under clause (3) of paragraph (a) above;
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(7) Restricted Payments not exceeding $25.0 million in the
aggregate; provided that (A) at the time of such Restricted Payments, no
Default shall have occurred and be continuing (or result therefrom) and
(B) such Restricted Payments shall be included in the calculation of the
amount of Restricted Payments under clause (3) of paragraph (a) above;
provided, further, that any such Restricted Payment made after the Issue
Date shall no longer be included in such $25.0 million to the extent (A)
in the case of a Restricted Payment that is an Investment, (i) the Company
or any Restricted Subsidiary (x) has received a return of capital in
respect thereof or (y) if such Investment was a loan or advance, has
received cash in repayment of such loan or advance and (B) in the case of
a Restricted Payment that is a Guarantee or similar arrangement, such
Guarantee or similar arrangement has terminated or expired or, to the
extent such Guarantee or similar arrangement has been reduced, net of any
amounts paid by the Company or a Restricted Subsidiary in respect of such
Guarantee or similar arrangement and (ii) the Company has elected to have
the amount received pursuant to the foregoing clause (i) increase the
amount of Restricted Payments available pursuant to this clause (b)(7) in
lieu of increasing the amount set forth in clause (a)(3)(D) above;
(8) Restricted Payments made during any Suspension Period; provided
that such Restricted Payments shall be included in the calculation of the
amount of Restricted Payments under clause (3) of paragraph (a) above;
(9) any Note Guarantee; provided that such Note Guarantees shall be
excluded in the calculation of the amount of Restricted Payments under
clause (3) of paragraph (a) above;
(10) in connection with any Permitted Finco Collapse Transaction,
the Restricted Payment, if any, deemed to be made pursuant to the last
paragraph of the definition of "Permitted Finco Collapse Transaction";
provided that such Restricted Payment shall be included in the calculation
of the amount of Restricted Payments under clause (3) of paragraph (a)
above; and
(11) Refinancing Indebtedness in respect of the Company's Guarantee
of Indebtedness of I/N Kote outstanding on the Issue Date.
SECTION 4.08 Limitation on Liens.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, Incur or permit to exist any
Lien on the First Mortgage Bonds Collateral other than Permitted
First Mortgage Bonds Collateral Liens.
(b) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur or permit
to exist any Lien on the Inventory Collateral other than Permitted
Inventory Collateral Liens.
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(c) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, Incur or permit to exist
any Lien on the Capital Stock of any Subsidiary of the Company that
directly or indirectly owns any interest in I/N Kote or I/N Tek,
other than Permitted Liens of the types described in clauses (2) and
(4) of the definition of "Permitted Liens"; provided that the
foregoing will not apply to the extent the Company or a Company
Guarantor effectively provides that the applicable Note Guarantees
shall be secured equally and ratably with (or prior to) the
obligations so secured for so long as such obligations are so
secured.
(d) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, Incur or permit to exist any
Lien (the "Initial Lien") of any nature whatsoever on any of its
properties (including Capital Stock of a Restricted Subsidiary),
whether owned at the Issue Date or thereafter acquired, other than
Permitted Liens; provided that the foregoing will not apply to the
extent the Company or a Company Guarantor effectively provides that
the applicable Note Guarantees shall be secured equally and ratably
with (or prior to) the obligations so secured for so long as such
obligations are so secured.
(e) Any Lien created for the benefit of the Holders of the
Notes pursuant to the provisos in (c) and (d) of this Section 4.08
shall provide by its terms that such Lien shall be automatically and
unconditionally released and discharged upon the release and
discharge of the Initial Lien (or Lien upon the applicable Capital
Stock, as applicable).
SECTION 4.09 Limitation on Affiliate Transactions.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property, employee compensation
arrangements or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an "Affiliate Transaction") unless:
(1) the terms of the Affiliate Transaction are no less favorable to
the Company or such Restricted Subsidiary than those that could be
obtained at the time of the Affiliate Transaction in arm's-length dealings
with a Person who is not an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess of
$5.0 million, the terms of the Affiliate Transaction are set forth in
writing and a majority of the Board of Directors of the Company has
determined in good faith that the criteria set forth in clause (1) are
satisfied and has approved the relevant Affiliate Transaction as evidenced
by a resolution; and
(3) if such Affiliate Transaction involves an amount in excess of
$25.0 million, the Board of Directors of the Company shall also have
received a written opinion
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from an Independent Qualified Party to the effect that such Affiliate
Transaction is fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries or is not less favorable to the Company and its
Restricted Subsidiaries than could reasonably be expected to be obtained
at the time in an arm's-length transaction with a Person who was not an
Affiliate.
(b) The provisions of the preceding paragraph (a) will not prohibit:
(1) any Investment (other than a Permitted Investment) or other
Restricted Payment, in each case permitted to be made pursuant to Section
4.07;
(2) any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved
by the Board of Directors of Parent or the Company;
(3) loans or advances to employees or directors in the ordinary
course of business of the Company or its Restricted Subsidiaries, but in
any event not to exceed $2.5 million in the aggregate outstanding at any
one time;
(4) indemnities made in the ordinary course of business to employees
or directors of the Company, its Subsidiaries, the Issuer and the Finco
Guarantors;
(5) the payment of reasonable fees to directors of the Company and
its Restricted Subsidiaries who are not employees of the Company or its
Restricted Subsidiaries or Parent;
(6) any transaction with a Restricted Subsidiary or joint venture or
similar entity (including, without limitation, the Existing Joint
Ventures) which would constitute an Affiliate Transaction solely because
the Company or a Restricted Subsidiary owns an equity interest in or
otherwise controls such Restricted Subsidiary or joint venture or similar
entity (including, without limitation, the Existing Joint Ventures);
(7) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company;
(8) the purchase and sale of raw materials, steel and steel-related
products and services with Affiliates conducted in the ordinary course of
business of the Company and its Restricted Subsidiaries, the terms of
which are no less favorable to the Company or any Restricted Subsidiary
than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not an Affiliate;
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(9) the payment of reasonable management fees to Parent or its
Subsidiaries in an aggregate amount not to exceed $10.0 million in any
fiscal year;
(10) sales or other transfers or dispositions of (x) Receivables and
Related Assets and (y) Inventory and Related Assets each in Qualified
Securitization Transactions, acquisitions of Permitted Investments in
connection with a Qualified Securitization Transaction and the entering
into of Standard Securitization Undertakings in connection with a
Qualified Securitization Transaction;
(11) any transaction with the Issuer or, prior to a Permitted Finco
Collapse Transaction, any Finco Guarantor; and
(12) any Affiliate Transaction entered into during any Suspension
Period.
SECTION 4.10 Limitation on Sales of Assets and Subsidiary Stock.
(a) At any time other than during a Suspension Period, the Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives consideration
at the time of such Asset Disposition at least equal to the fair market
value (including as to the value of all non-cash consideration), as
determined in good faith by the Board of Directors of the Company, of the
shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash or cash
equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be)
(A) first, (i) to the extent that such Asset Disposition is of
assets other than Inventory Collateral, to the extent the Company
elects or is required, to repay Indebtedness under any Credit
Agreement and (ii) to the extent such Asset Disposition is of
Inventory Collateral, to the extent the Company elects or is
required, to repay Indebtedness secured by a Permitted Inventory
Collateral Lien on the Inventory Collateral ranking prior to the
Lien securing the Company's Note Guarantee;
(B) second, to the extent of the balance of such Net Available
Cash after application in accordance with clause (A), to the extent
the Company elects, to acquire Additional Assets within one year (or
enter into a binding commitment
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therefor within such one-year period and acquire such Additional
Assets within 6 months after such one-year period) from the later of
the date of such Asset Disposition or the receipt of such Net
Available Cash and to the extent the assets disposed of constituted
Inventory Collateral, such Additional Assets shall be Inventory
Collateral;
(C) third, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B), the
Issuer will make an offer (a "Net Proceeds Offer") to the Holders of
the Notes (and (i) except to the extent such Net Available Cash was
from an Asset Disposition of Inventory Collateral, the Company may
make an offer to holders of other Senior Indebtedness of the Company
designated by the Company and (ii) to the extent such Net Available
Cash was from an Asset Disposition of Inventory Collateral, the
Company may make an offer to holders of other Indebtedness with a
Permitted Inventory Collateral Lien ranking prior to or pari passu
with the Lien on the Inventory Collateral securing the Company's
Note Guarantee) to purchase Notes (and, if applicable, such other
Indebtedness of the Company) pursuant to and subject to the
conditions contained in this Indenture; and
(D) fourth, any balance of such Net Available Cash after
application in accordance with clauses (A), (B) and (C) above (or to
the extent any offer made in accordance with clause (C) above is not
accepted) may be used by the Company for its general corporate
purposes.
Notwithstanding the foregoing provisions of this Section 4.10, the
Issuer will not be required to apply any Net Available Cash in accordance with
clause (C) above until such time as the aggregate Net Available Cash from all
Asset Dispositions which is not applied in accordance with clauses (A) and (B)
exceeds $10.0 million. Pending application of Net Available Cash pursuant to
this Section 4.10, such Net Available Cash may be invested in any manner not
prohibited by this Indenture or applied to temporarily reduce revolving credit
indebtedness.
(b) For the purposes of Section 4.10(a), the following are deemed to
be cash or cash equivalents:
(1) the assumption of Indebtedness of the Company or any Restricted
Subsidiary and the release of the Company or such Restricted Subsidiary
from all liability on such Indebtedness in connection with such Asset
Disposition; and
(2) securities received by the Company or any Restricted Subsidiary
from the transferee that are promptly converted by the Company or such
Restricted Subsidiary into cash.
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(c) In the event of an Asset Disposition that requires or results in
a Net Proceeds Offer pursuant to clause (a)(3)(C) above, the Issuer will
purchase Notes tendered pursuant to such offer by the Company for the Notes
(and, if applicable, the Company will purchase such other Indebtedness of the
Company) at a purchase price of 100% of their principal amount (or, subject to
the text below relating to a lesser price, in the event such other Indebtedness
of the Company was issued with original issue discount, 100% of the accreted
value thereof) without premium, plus accrued but unpaid interest (or, in respect
of such other Indebtedness of the Company, such lesser price, if any, as may be
provided for by the terms of such Indebtedness) (the "Offered Price"). Upon the
commencement of a Net Proceeds Offer, the Issuer shall send, by first class
mail, a notice to the Trustee and to each Holder at its registered address. The
notice shall contain all instructions and materials necessary to enable such
Holder to tender Notes pursuant to the Net Proceeds Offer. Any Net Proceeds
Offer shall be made to all Holders. The notice, which shall govern the terms of
the Net Proceeds Offer, shall state that:
(i) the Net Proceeds Offer is being made pursuant to this Section
4.10;
(ii) the Offered Price, and the date on which Notes tendered and
accepted for payment shall be purchased, which date shall be at least 30
days and not later than 60 days from the date such notices is mailed (the
"Net Proceeds Payment Date");
(iii) any Notes not tendered or accepted for payment shall continue
to accrete or accrue interest;
(iv) unless the Issuer defaults in making such payment, any Notes
accepted for payment pursuant to the Net Proceeds Offer shall cease to
accrete or accrue interest after the Net Proceeds Payment Date;
(v) Holders electing to have a Note purchased pursuant to any Net
Proceeds Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Issuer, a
depository, if appointed by the Issuer, or the Paying Agent at the address
specified in the notice at least three days before the Net Proceeds
Payment Date;
(vi) Holders shall be entitled to withdraw their election if the
Issuer, the depository or the Paying Agent, as the case may be, receives,
not later than the Net Proceeds Payment Date, a notice setting forth the
name of the Holder, the principal amount of the Note the Holder delivered
for purchase and a statement that such Holder is withdrawing his election
to have such Note purchased;
(vii) if the aggregate purchase price of the securities tendered
exceeds the Net Available Cash allotted to their purchase, the Notes and,
if applicable, such other Indebtedness will be purchased on a pro rata
basis but in round denominations, which in the case of the Notes will be
denominations of $1,000 principal amount or multiples thereof; and
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(viii) Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry).
(d) On the Net Proceeds Payment Date, the Issuer shall, to the
extent lawful: (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Net Proceeds Offer; (2) deposit with the Paying Agent
U.S. Dollars sufficient to pay the Offered Price in respect of all Notes or
portions thereof so tendered; and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being repurchased by the
Issuer. The Issuer shall publicly announce the results of the Net Proceeds Offer
on the Net Proceeds Payment Date.
(e) The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Offered Price for such Notes, and the Trustee shall promptly
authenticate pursuant to an Authentication Order and mail (or cause to be
transferred by book-entry) to each Holder a new Note equal in principal amount
to any unrepurchased portion of the Notes surrendered, if any; provided that
each such new Note shall be in principal amount of $1,000 or an integral
multiple thereof. However, if the Net Proceeds Payment Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Net
Proceeds Offer.
(f) The Issuer will 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 Notes pursuant to this
Section 4.10. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.10, the Issuer will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.10 by virtue of its
compliance with such securities laws or regulations.
SECTION 4.11 Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries.
At any time other than during a Suspension Period, the Company
(1) will not, and will not permit any Restricted Subsidiary to,
sell, lease, transfer or otherwise dispose of any Capital Stock of any
Restricted Subsidiary to any Person (other than the Company or a Wholly
Owned Subsidiary), and
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(2) will not permit any Restricted Subsidiary to issue any of its
Capital Stock (other than, if necessary, shares of its Capital Stock
constituting directors' or other legally required qualifying shares) to
any Person (other than to the Company or a Wholly Owned Subsidiary),
unless:
(A) immediately after giving effect to such issuance, sale or
other disposition, neither the Company nor any of its Subsidiaries
owns any Capital Stock of such Restricted Subsidiary; or
(B) immediately after giving effect to such issuance, sale or
other disposition, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and any Investment in such Person
remaining after giving effect thereto is treated as a new Investment
by the Company and such Investment would be permitted to be made
under Section 4.07 if made on the date of such issuance, sale or
other disposition.
SECTION 4.12 Limitation on Restrictions on Distributions from
Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to
the Company, (b) make any loans or advances to the Company or (c) transfer any
of its property or assets to the Company, except:
(1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date;
(B) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary on or prior to
the date on which such Restricted Subsidiary was acquired by the
Company (other than Indebtedness Incurred as consideration in, or to
provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company) and outstanding on such
date which encumbrance or restriction does not relate to any Person
other than such Restricted Subsidiary;
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(C) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (A), (B) or (G) of clause (1) of
this Section 4.12 or this clause (C) or contained in any amendment
to an agreement referred to in clause (A) or (B) of clause (1) of
this Section 4.12 or this clause (C); provided that the encumbrances
and restrictions with respect to such Restricted Subsidiary
contained in any such refinancing agreement or amendment are not
less favorable in any material respect to the Holders of Notes than
encumbrances and restrictions with respect to such Restricted
Subsidiary contained in such predecessor agreements (as determined
by the Company in its reasonable judgment);
(D) any encumbrance or restriction with respect to a
Securitization Subsidiary in connection with a Qualified
Securitization Transaction; provided that such encumbrances and
restrictions are customarily required by the institutional sponsor
or arranger of such Qualified Securitization Transaction in similar
types of documents relating to the purchase of similar receivables,
other rights to payment or inventory in connection with the
financing thereof;
(E) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets
of such Restricted Subsidiary pending the closing of such sale or
disposition;
(F) customary provisions in joint venture agreements relating
solely to the securities, assets and revenues of such joint venture;
and
(G) encumbrances or restrictions incurred or entered into
during any Suspension Period; and
(2) with respect to clause (c) only,
(A) any such encumbrance or restriction (i) consisting of
customary nonassignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the
lease or the property leased thereunder or (ii) that restricts in a
customary manner the subletting, assignment or transfer of any
property or asset that is subject to a lease, license or similar
contract;
(B) restrictions contained in security agreements or mortgages
securing Indebtedness of a Restricted Subsidiary to the extent such
restrictions restrict the transfer of the property subject to such
security agreements or mortgages; and
(C) any encumbrance or restriction by virtue of any transfer
or agreement to transfer, option or right with respect to, or Lien
on, any property or assets of any Restricted Subsidiary not
otherwise prohibited by this Indenture.
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SECTION 4.13 Legal Existence.
Subject to Article Five and except to the extent permitted as a
Permitted Finco Collapse Transaction, the Issuer shall do or cause to be done
all things necessary to preserve and keep in full force and effect its legal
existence, and the corporate, partnership or other existence of the Company, the
Finco Guarantors and each Restricted Subsidiary, in accordance with the
respective organizational documents (as the same may be amended from time to
time) of each Restricted Subsidiary and the material rights (charter and
statutory), licenses and franchises of the Issuer, the Company, the Finco
Guarantors and the Restricted Subsidiaries; provided that the Issuer shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of the Restricted Subsidiaries if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
Restricted Subsidiaries, taken as a whole.
SECTION 4.14 Change of Control Offer.
(a) Within 30 days following any Change of Control (other than a
Change of Control that occurs during a Suspension Period), the Issuer shall be
obligated to make an offer to purchase (the "Change of Control Offer") all
outstanding Notes at a cash purchase price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof, plus accrued and unpaid
interest thereon to the Change of Control Payment Date in accordance with this
Section 4.14.
(b) Within 30 days of the occurrence of a Change of Control, the
Issuer shall (i) cause a notice of the Change of Control Offer to be sent at
least once to the Dow Jones News Service or similar business news service in the
United States and (ii) send by first-class mail, postage prepaid, to the Trustee
and to each Holder, at the address appearing in the register maintained by the
Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.14 and that all Notes tendered shall be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date
(which shall be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed (the "Change of Control Payment
Date"));
(3) that any Note not tendered shall continue to accrue interest;
(4) that, unless the Issuer defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
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(5) that Holders accepting the offer to have a Note purchased
pursuant to any Change of Control Offer shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes the Holder delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Note purchased;
(7) that Holders whose Notes are being purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered; provided that each Note purchased and each such
new Note issued shall be in an original principal amount in denominations
of $1,000 and integral multiples thereof;
(8) any other procedures that a Holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance;
(9) the name and address of the Paying Agent; and
(10) the circumstances and relevant facts regarding the Change of
Control (including information with respect to pro forma historical
income, cash flow and capitalization, in each case, after giving effect to
the Change of Control).
On the Change of Control Payment Date, the Issuer shall, to the
extent lawful, (i) accept for payment Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officers' Certificate stating the Notes or
portions thereof tendered to the Issuer. The Paying Agent shall promptly mail to
each Holder of Notes so accepted payment in an amount equal to the purchase
price for such Notes, and the Issuer shall execute and issue, and the Trustee
shall promptly authenticate and mail to such Holder, a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered; provided
that each such new Note shall be issued in an original principal amount in
denominations of $1,000 and integral multiples thereof. The Issuer will publicly
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
The Issuer shall not be required to make a Change of Control Offer
upon a Change of Control if a third party (i) makes the Change of Control Offer
in the manner and at the time and otherwise in compliance with this Section
4.14, and (ii) purchases all Notes validly tendered and not withdrawn under the
Change of Control Offer.
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The Issuer shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.14, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.14 by virtue thereof.
SECTION 4.15 Limitation on Sale/Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction with respect to any property
unless:
(1) the Company or such Restricted Subsidiary would be entitled to
(A) Incur Indebtedness in an amount equal to the Attributable Debt with
respect to such Sale/Leaseback Transaction pursuant to Section 4.06 and
(B) create a Lien on such property securing such Attributable Debt
pursuant to Section 4.08;
(2) the net proceeds received by the Company or any Restricted
Subsidiary in connection with such Sale/Leaseback Transaction are at least
equal to the fair market value (as determined by the Board of Directors of
the Company) of such property; and
(3) the Company applies the proceeds of such transaction in
compliance with Section 4.10.
SECTION 4.16 Limitation on Business Activities.
At any time except during a Suspension Period, the Company will not,
and will not permit any Restricted Subsidiary to, enter into any line of
business other than the businesses engaged in by the Company and its
Subsidiaries on the Issue Date as described in the Offering Memorandum and
businesses that are reasonably related thereto or reasonable extensions thereof.
Section 4.17 Limitation on Amendment of Mortgage.
The Company shall not permit any amendment to be made to the
Mortgage, which requires the consent of holders of the Bonds, unless the holders
of a majority in aggregate principal amount of the Notes outstanding have
consented thereto.
SECTION 4.18 Payment of Additional Amounts.
(a) The Issuer and the Guarantors will make all payments under or
with respect to the Notes and the Note Guarantees free and clear of and without
withholding or deduction for or on account of any present or future tax, duty,
levy, impost, assessment or other
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governmental charge (including penalties, interest and other liabilities related
thereto) (hereinafter "Taxes") imposed or levied by or on behalf of Canada, The
Netherlands or any political subdivision or any authority or agency therein or
thereof having power to tax, or by any other jurisdiction in which the Issuer or
any Guarantor is organized or is otherwise resident or conducts business for tax
purposes or any jurisdiction from or through which payment is made by the Issuer
or any Guarantor or its agents (each a "Relevant Taxing Jurisdiction"), unless
the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by
the interpretation or administration thereof.
If the Issuer or any Guarantor is required to withhold or deduct any
amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from
any payment made under or with respect to the Notes or any Note Guarantee, the
Issuer or such Guarantor will be required to pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
Holders of the Notes after such withholding or deduction (including any
withholding or deduction attributable to Additional Amounts payable hereunder)
will not be less than the amount such Holders would have received if such Taxes
had not been withheld or deducted.
(b) Notwithstanding the foregoing, the obligation to pay Additional
Amounts shall not apply to any Taxes to the extent such Taxes would not have
been so imposed
(i) but for the existence of any present or former connection
between the relevant Holder (or the beneficial owner of such Notes) and
the Relevant Taxing Jurisdiction (other than the mere receipt of such
payment or the mere acquisition, ownership, holding or disposition of any
Note);
(ii) but for the failure of the relevant Holder (or the beneficial
owner of such Notes) to use its reasonable best efforts, to the extent
such Holder (or beneficial owner) is legally entitled to do so, to comply
upon written notice by the Issuer or a Guarantor delivered 60 days prior
to any payment date with a request to satisfy any certification,
identification or other reporting requirements, which shall include any
applicable forms or instructions, whether imposed by statute, treaty,
regulation or administrative practice, concerning the nationality or
residence of such Holder or the connection of such Holder with the
Relevant Taxing Jurisdiction;
(iii) if the payment could have been made without such deduction or
withholding if the relevant Holder had presented the Note for payment
within 60 days after the date on which such payment became due and payable
or the date on which payment thereof is duly provided for, whichever is
later (except to the extent that the Holder would have been entitled to
Additional Amounts had the Note been presented on the last day of such
60-day period);
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(iv) with respect to any payment of principal of (or premium, if
any, on) or interest on such Note to any Holder who is a fiduciary or
partnership or any person other than the sole beneficial owner of such
payment, to the extent that a beneficiary with respect to such fiduciary,
a member of such a partnership or the beneficial owner of such payment
would not have been entitled to the Additional Amounts had such
beneficiary, member or beneficial owner been the actual Holder of such
Note (but only if there is no material cost or expense associated with
transferring such Notes to such beneficiary, partner or beneficial owner
and no restriction on such transfer that is outside the control of such
beneficiary, partner or beneficial owner); or
(v) with respect to any Canadian Taxes imposed on a payment of, in
lieu of, on account of, or in satisfaction of, interest (including deemed
interest) made by the Issuer or a Guarantor which is a resident of Canada,
where the beneficiary of such payment does not deal at arm's length with
the Issuer or such Guarantor, as the case may be, for the purposes of the
Income Tax Act (Canada).
The Issuer and the Guarantors will (i) make any required withholding or
deduction and (ii) remit the full amount deducted or withheld to the Relevant
Taxing Jurisdiction in accordance with applicable law. The Issuer and the
Guarantors will make reasonable best efforts to obtain certified copies of tax
receipts evidencing the payment of any Taxes so deducted or withheld from each
Relevant Taxing Jurisdiction imposing such Taxes. The Issuer and the Guarantors
will provide to the Trustee, within a reasonable time after the date the payment
of any Taxes so deducted or withheld are due pursuant to applicable law, either
a certified copy of tax receipts evidencing such payment or, if such tax
receipts are not reasonably available to the Issuer or such Guarantor, such
other documentation that provides reasonable evidence of such payment by the
Issuer or such Guarantor.
The Issuer and the Guarantors, jointly and severally, will indemnify
and hold harmless each eligible Holder of Notes and, upon written request of any
eligible Holder of Notes, reimburse such Holder for the amount of (i) any Taxes
levied or imposed on and paid by such Holder as a result of payments made under
or with respect to the Notes held by such Holder or any Note Guarantee; and (ii)
any Taxes levied or imposed with respect to any reimbursement under the
foregoing clause (i) or this clause (ii), so that the net amount received by
such Holder after such reimbursement will not be less than the net amount such
Holder would have received if the Taxes giving rise to the reimbursement
described in clauses (i) and/or (ii) had not been imposed; provided, however,
that the indemnification obligation provided for in this paragraph shall not
extend to Taxes imposed for which the eligible Holder of Notes would not have
been eligible to receive payment of Additional Amounts hereunder.
At least 30 days prior to each date on which any payment under or
with respect to the Notes is due and payable (unless such obligation to pay
Additional Amounts arises shortly before or after the 30th day prior to such
date, in which case it shall be promptly thereafter), if the Issuer will be
obligated to pay Additional Amounts with respect to such payment, the Issuer
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will deliver to the Trustee an Officers' Certificate stating the fact that such
Additional Amounts will be payable and the amounts so payable and will set forth
such other information necessary to enable the Trustee to pay such Additional
Amounts to Holders of Notes on the payment date. Each such Officers' Certificate
shall be relied upon until receipt of a further Officers' Certificate addressing
such matters.
Whenever in this Indenture there is mentioned, in any context:
(i) the payment of principal;
(ii) purchase prices in connection with a redemption of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes
or the Note Guarantees,
such reference shall be deemed to include payment of Additional Amounts or
indemnification payments as described hereunder to the extent that, in such
context, Additional Amounts or indemnification payments are, were or would be
payable in respect thereof.
The Issuer will pay any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise in any Relevant Taxing Jurisdiction from the execution,
delivery, enforcement or registration of the Notes, this Indenture, the Pledge
Agreement or any other document or instrument in relation thereto, or the
receipt of any payments with respect to the Notes, and the Issuer and the
Guarantors, jointly and severally, will agree to indemnify the Holders for any
such taxes paid by such Holders.
The obligations described under this Section 4.18 will survive any
termination, defeasance or discharge of this Indenture and will apply mutatis
mutandis to any successor Person to the Issuer or any Guarantor and to any
jurisdiction in which the Issuer or any Guarantor is organized or is otherwise
resident or conducts business for tax purposes or any jurisdiction from or
through which payment is made by the Issuer or any Guarantors or their
respective agents
SECTION 4.19 Limitation on Business and Activities of the Issuer and the
Finco Guarantors Prior to a Permitted Finco Collapse
Transaction.
Prior to the consummation of a Permitted Finco Collapse Transaction,
neither the Issuer nor any Finco Guarantor will engage in any business or
activities other than performing its obligations under this Indenture, the
Pledge Agreement, the Purchase Agreement, the Registration Rights Agreement (and
any customary future purchase agreement or registration rights
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agreement in connection with any offering of Additional Notes), the Finco Mirror
Note, the Notes and the Note Guarantees, as applicable, and activities
reasonably incidental thereto.
Without limitation of the foregoing restrictions, prior to the
consummation of a Permitted Finco Collapse Transaction:
(a) neither the Issuer nor any Finco Guarantor will, directly or
indirectly, Incur or suffer to exist any Indebtedness or other liability
other than pursuant to (i) the Finco Subordinated Note; (ii) the Notes
issued on the Issue Date (and Additional Notes to the extent that the
Company has issued a like principal amount of First Mortgage Bonds to the
Issuer or a Finco Guarantor which have been pledged to the Trustee for the
benefit of the Holders of Notes), this Indenture, the Pledge Agreement,
the Note Guarantees, the Purchase Agreement and the Registration Rights
Agreement (and any customary future purchase agreement or registration
rights agreement relating to an offering of Additional Notes); (iii)
Indebtedness among the Issuer and the Finco Guarantors consisting of
Subordinated Obligations; (iv) Ispat Inland Finance, LLC's obligations (x)
pursuant to any Inventory Intercreditor Agreement and (y) as pledgor of
Bonds to the PBGC pursuant to the PBGC Pledge Agreement as in effect on
the Issue Date and as amended to the extent no such amendment is adverse
to the holders of Notes (it being understood that an amendment to the
maturity of the Bonds and any increase in the interest rate applicable to
the Bonds or other amendment which does not increase in any material
respect the potential liability of Ispat Inland Finance, LLC thereunder
shall not be deemed to be adverse to the holders); (v) liabilities for
taxes as a result of the operation of the Issuer and the Finco Guarantors
in accordance with this Indenture which are not yet due or which are being
contested in good faith by appropriate proceeding and for which adequate
reserves are being maintained; (vi) administrative expenses, including
legal, SEC reporting and accounting expenses; and (vii) other liabilities
incidental to the performance of their obligations under this Indenture,
the Notes, the Note Guarantees and the Pledge Agreement and the other
transactions contemplated hereby;
(b) the Issuer and the Finco Guarantors will not sell or otherwise
dispose of any of the Collateral other than pursuant to a Permitted Finco
Collapse Transaction, including any shares of Capital Stock constituting a
portion of the Collateral, or merge into or consolidate with any Person;
(c) the Issuer and the Finco Guarantors will not create or otherwise
cause or permit to exist or become effective any consensual encumbrance or
restriction (other than pursuant to this Indenture and the Pledge
Agreement) on the ability of Ispat Inland, L.P. to make payments on the
Finco Mirror Note in accordance with its terms or the ability of the
Issuer or any Finco Guarantor to (i) make distributions on or repurchase
its Capital Stock, (ii) make loans or advances to the Issuer, any Finco
Guarantor or the Company or
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(iii) transfer any of its property or assets to the Issuer, a Finco
Guarantor or the Company (other than restrictions on transfer of the Bonds
of Ispat Inland Finance, LLC that are pledged to the PBGC under the PBGC
Pledge Agreement);
(d) Ispat Inland, L.P. shall maintain funds legally available to
make payments on the Finco Mirror Note, and each of the other Finco
Guarantors will maintain funds legally available in order to cause an
amount of cash to be received by Ispat Inland, L.P. sufficient for Ispat
Inland, L.P. to make payments on the Finco Mirror Note, in each case, on
each date on which any payment is required to be made with respect to any
Note;
(e) Ispat Inland, L.P. will make payments on the Finco Mirror Note
in accordance with its terms on each date on which any payment is required
to be made and each of the other Finco Guarantors shall cause an amount of
cash to be distributed to Ispat Inland, L.P. sufficient to provide funds
for Ispat Inland, L.P. to make payments on the Finco Mirror Note on each
date on which any payment is required to be made with respect to any Note;
(f) the Issuer and the Finco Guarantors will not take or knowingly
or negligently omit to take any action which action or omission would have
the result of materially and adversely impairing the security interest
with respect to the Collateral other than as expressly contemplated by
this Indenture and the Pledge Agreement; and
(g) the Issuer and the Finco Guarantors will not, directly or
indirectly, redeem, repurchase or pay any dividend or any other
distribution on any of Ispat Inland, L.P.'s Capital Stock or make any
Investment in any Person other than (i) Investments in the Issuer or a
Finco Guarantor, (ii) Investments consisting of loans of Excess Finco
Proceeds to the Company in exchange for a like aggregate principal amount
of Company Notes, (iii) Investments in the First Mortgage Bonds which are
outstanding on the Issue Date and additional First Mortgage Bonds which
are pledged as Collateral for the Notes, (iv) Investments in the Capital
Stock of the Company, (v) Investments by Ispat Inland Finance, LLC in
Bonds held by it on the Issue Date that are pledged to the PBGC pursuant
to the PBGC Pledge Agreement, (vi) Investments in Temporary Cash
Investments and (vii) Investments (which are not made out of cash or
Temporary Cash Investments) by the Finco Guarantors in the Capital Stock
of any direct or indirect parent company of the Company (which Investments
may involve transfers of Capital Stock among the Finco Guarantors).
Notwithstanding the foregoing, the Issuer and the Finco Guarantors
shall be permitted to engage in a Permitted Finco Collapse Transaction.
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SECTION 4.20 Limitation on Business and Activities of Issuer Following a
Permitted Finco Collapse Transaction.
Following the consummation of a Permitted Finco Collapse
Transaction, the Issuer will not engage in any business or activities other than
performing its obligations under this Indenture, the Pledge Agreement, the
Purchase Agreement, the Registration Rights Agreement (and any customary future
purchase agreement or registration rights agreement in connection with any
offering of Additional Notes) and the Notes, and activities reasonably
incidental thereto.
Without limitation of the foregoing restrictions, following the
consummation of a Permitted Finco Collapse Transaction:
(a) the Issuer will not, directly or indirectly, Incur or suffer to
exist any Indebtedness or other liability other than (i) pursuant to the
Finco Subordinated Note; (ii) the Notes issued on the Issue Date (and
Additional Notes to the extent that the Company has issued a like
principal amount of First Mortgage Bonds to the Issuer which have been
pledged to the Trustee for the benefit of the Holders of Notes), this
Indenture, the Pledge Agreement, the Purchase Agreement and the
Registration Rights Agreement (and any customary future purchase agreement
or registration rights agreement relating to an offering of Additional
Notes); (iii) liabilities for taxes as a result of the operation of the
Issuer in accordance with this Indenture which are not yet due or which
are being contested in good faith by appropriate proceedings and for which
adequate reserves are being maintained; (iv) administrative expenses,
including legal, SEC reporting and accounting expenses; (v) if the Bonds
and the related obligations of Ispat Inland Finance, LLC under the PBGC
Pledge Agreement were transferred to the Issuer in the Permitted Finco
Collapse Transaction, the Issuer may have liabilities with respect to a
pledge of such Bonds to the PBGC to the extent Ispat Inland Finance, LLC
would have been permitted to have such liabilities prior to a Permitted
Finco Collapse Transaction; (vi) other liabilities incidental to the
performance of the Issuer's obligations under this Indenture, the Notes
and the Pledge Agreement and the other transactions contemplated hereby;
and (vii) liabilities under any Inventory Intercreditor Agreement;
(b) the Issuer will not sell or otherwise dispose of any of the
Collateral or merge into or consolidate with any Person;
(c) the Issuer will not create or otherwise cause or permit to exist
or become effective any consensual encumbrance or restriction (other than
pursuant to this Indenture and the Pledge Agreement) on the ability of the
Issuer to (i) make loans or advances to the Company or (ii) transfer any
of its property or assets (other than restrictions with respect to any
Bonds pledged to the PBGC) to the Company;
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(d) the Issuer will not take or knowingly or negligently omit to
take, any action which action or omission would have the result of
materially and adversely impairing the security interest with respect to
the Collateral other than as expressly contemplated by this Indenture and
the Pledge Agreement; and
(e) the Issuer will not redeem, repurchase or pay any dividend or
any other distribution on any of its Capital Stock or make any Investment
in any Person other than (i) Investments consisting of loans of Excess
Finco Proceeds to the Company in exchange for a like aggregate principal
amount of Company Notes, (ii) Investments in the First Mortgage Bonds
which are outstanding on the Issue Date and additional First Mortgage
Bonds which are pledged as Collateral for the Notes, (iii) Investments in
the Capital Stock of the Company, (iv) Investments in Temporary Cash
Investments and (v) Investments in Bonds and Capital Stock of the Company
transferred to it in a Permitted Finco Collapse Transaction.
SECTION 4.21 Limitation on Steelmaking Business.
At any time other than during a Suspension Period, Parent will not
and will not permit any of its Subsidiaries (other than the Company and its
Subsidiaries) to, acquire any U.S. Steelmaking Business, unless upon the
consummation of such acquisition (if such acquisition is otherwise in compliance
with the requirements set forth in this Indenture), the U.S. Steelmaking
Business is owned by the Company or any of its Restricted Subsidiaries.
SECTION 4.22 Limitation on Merger or Consolidation of Parent.
Parent will not consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of transactions, directly or
indirectly, all or substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the "Successor
Parent") shall be a Person organized and existing under the laws of any
member nation of the European Union (as constituted on the Issue Date) or
Canada or the laws of any political subdivision thereof or the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Parent (if not Parent) shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of Parent under its Note
Guarantee and this Indenture;
(2) immediately after giving pro forma effect to such transaction,
no Default shall have occurred and be continuing;
(3) Parent shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture;
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(4) Parent 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 transaction 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
transaction had not occurred; and
(5) Parent shall have delivered an Opinion of Counsel in the
jurisdiction of organization of Parent (if other than the United States)
to the effect that the Holders of the Notes (other than Holders that are
resident in such jurisdiction or that have a permanent establishment in
such jurisdiction to which the Notes are attributable) will not recognize
income, gain or loss for income tax purposes of such jurisdiction as a
result of such transaction and will be subject to income tax in such
jurisdiction on the same amounts, in the same manner and at the same times
as would have been the case if such transaction had not occurred.
The Successor Parent will be the successor to Parent and shall
succeed to, and be substituted for, and may exercise every right and power of,
Parent under Parent's Note Guarantee and this Indenture, and the predecessor
Parent, except in the case of a lease, shall be released from its Note Guarantee
and its other obligations under this Indenture.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Limitation on Mergers, Amalgamations, Consolidations, Etc.
(a) The Company will not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all its assets to, any Person,
unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) shall expressly assume, by
a supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Mortgage, the First Mortgage Bonds, the Company's Note Guarantee and this
Indenture;
(2) immediately after giving pro forma effect to such transaction
(and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary as a result of such transaction as
having been Incurred by such Successor
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Company or such Subsidiary at the time of such transaction), no Default
shall have occurred and be continuing;
(3) at any time other than during a Suspension Period, immediately
after giving pro forma effect to such transaction, the Successor Company
would be able to Incur an additional $1.00 of Indebtedness pursuant to
paragraph (a) of Section 4.06;
(4) at any time other than during a Suspension Period, immediately
after giving pro forma effect to such transaction, the Successor Company
shall have Consolidated Net Worth in an amount that is not less than the
Consolidated Net Worth of the Company immediately prior to such
transaction;
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture and the Mortgage and that all necessary actions
have been taken to preserve the priority and perfection of the Lien of the
Mortgage on the First Mortgage Bonds Collateral; and
(6) 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 Federal income tax purposes as a result of such transaction and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
transaction had not occurred;
provided that clauses (3) and (4) will not be applicable to (A) a Restricted
Subsidiary consolidating with, merging into or transferring all or part of its
properties and assets to the Company or (B) the Company merging with an
Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction.
The Successor Company will be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Note Guarantee, and the predecessor Company, except in the
case of a lease, shall be released from the obligations under its Note Guarantee
and this Indenture.
(b) The Company will not permit any Company Guarantor to consolidate
with or merge with or into, or convey, transfer or lease, in one transaction or
a series of transactions, all or substantially all of its assets to any Person
unless:
(1) except in the case of a Company Guarantor that has been disposed
of in its entirety to another Person (other than to the Company or another
Company Guarantor), whether through a merger, consolidation or sale of
Capital Stock or assets, if in connection therewith, at any time other
than during a Suspension Period, the Company provides an Officers'
Certificate to the Trustee to the effect that the Company will comply with
its
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obligations under Section 4.10 in respect of such disposition, the
resulting, surviving or transferee Person (if not such Subsidiary) shall
be a Person organized and existing under the laws of the jurisdiction
under which such Subsidiary was organized or under the laws of the United
States of America, or any State thereof or the District of Columbia, and
such Person shall expressly assume, by supplemental indenture, in a form
satisfactory to the Trustee, all the obligations of such Subsidiary under
its Note Guarantee and this Indenture;
(2) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the resulting, surviving or transferee Person as
a result of such transaction as having been Incurred by such Person at the
time of such transaction), no Default shall have occurred and be
continuing; and
(3) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture, if any, comply with this
Indenture.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) a default in the payment of interest or Additional Amounts on
any Notes when due, and such default continues for 30 days;
(2) a default in the payment of principal on any Notes when due
whether at its Maturity Date, upon optional redemption, upon required
purchase, upon declaration of acceleration or otherwise;
(3) (i) the failure by the Company or any Company Guarantor to
comply with its obligations under Section 5.01 or Section 4.17; (ii) the
failure of the Issuer or any Finco Guarantor to comply with its
obligations under clause (b) of Section 4.19 or clause (b) of Section
4.20; (iii) the failure by the Issuer or any Finco Guarantor to comply
with any of its obligations under clauses (c) through (f) of Section 4.19,
which failure continues for 30 days or the failure by the Issuer to comply
with its obligations under clause (c) or (d) of Section 4.20, which
failure continues for 30 days; or (iv) the failure by Parent to comply
with its obligations under Section 4.21 or 4.22;
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(4) (i) the failure by the Company or any Company Guarantor, as the
case may be, to comply for 30 days after notice with any of its
obligations under Section 4.14 (other than a failure to purchase Notes
which shall be governed by clause (2) above) or under Section 4.06, 4.07,
4.08 or 4.10 (other than a failure to purchase Notes which shall be
governed by clause (2) above) or (ii) the failure of the Issuer or any
Finco Guarantor, as the case may be, to comply for 30 days after notice
with any of its obligations under clause (a) or (g) of Section 4.19 or the
failure by the Issuer to comply for 30 days after notice with any of its
obligations in clause (a) or (e) of Section 4.20;
(5) the failure by the Issuer or any Guarantor to comply for 60 days
after notice with its other agreements contained in this Indenture, the
Mortgage or the Pledge Agreement;
(6) Indebtedness of Parent, the Company, any Company Guarantor or
any Significant Subsidiary is not paid within any applicable grace period
after final maturity or is accelerated by the holders thereof because of a
default and the total amount of such Indebtedness unpaid or accelerated
exceeds $10.0 million, or in the case of Parent, $25.0 million;
(7) the Issuer or any Guarantor pursuant to or within the meaning of
any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its assets, or
(d) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Issuer or any Guarantor as
debtor in an involuntary case,
(b) appoints a Custodian of the Issuer or any Guarantor or a
Custodian for all or substantially all of the assets of the Issuer
or any Guarantor, or
(c) orders the liquidation of the Issuer or any Guarantor,
and the order or decree remains unstayed and in effect for 60 days;
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(9) any judgment or decree for the payment of money in excess of
$10.0 million, or in the case of Parent, $25.0 million is entered against
Parent, the Company, any Company Guarantor or any Significant Subsidiary,
remains outstanding for a period of 60 consecutive days following such
judgment and is not discharged, waived or stayed within 10 days after
notice;
(10) any Note Guarantee ceases to be in full force and effect (other
than in accordance with the terms of such Note Guarantee and this
Indenture) or any Guarantor denies or disaffirms its obligations under its
Note Guarantee;
(11) with respect to any Collateral, (A) any material Lien under the
Collateral Documents, at any time, ceases to be in full force and effect
for any reason other than in accordance with the terms of the Collateral
Documents and this Indenture and other than the satisfaction in full of
all obligations under this Indenture and discharge of this Indenture, (B)
any security interest created thereunder or under this Indenture is
declared invalid or unenforceable, (C) the Company or any Pledgor (as
defined in the Pledge Agreement) asserts, in any pleading in any court of
competent jurisdiction, that any such security interest is invalid or
unenforceable or (D) any Person commences a foreclosure proceeding in
respect of any material portion of the Collateral;
(12) with respect to any material amount of First Mortgage Bonds
Collateral, (A) the security interest under the Mortgage, at any time,
ceases to be in full force and effect for any reason other than in
accordance with its terms, (B) any security interest created thereunder is
declared invalid or unenforceable, (C) the Company asserts, in any
pleading in any court of competent jurisdiction, that any such security
interest is invalid or unenforceable or (D) any Person commences a
foreclosure proceeding in respect thereof; or
(13) the Parent Subordination Agreement shall cease to be in full
force and effect or the Company or any holder of Existing Shareholder
Advances shall assert the invalidity of any provision of the Parent
Subordination Agreement.
However, a default under clauses (4), (5) and (9) will not
constitute an Event of Default until the Trustee or the Holders of 25% in
principal amount of Notes then outstanding notify the Issuer of the default and
the Issuer does not cure such default within the time specified after receipt of
such notice.
Subject to Sections 7.01 and 7.02, the Trustee shall not be charged
with knowledge of any Default, Change of Control or Asset Disposition or the
requirement for payment of Additional Amounts unless written notice thereof
shall have been given to a Responsible Officer at the Corporate Trust Office of
the Trustee by the Issuer or any other Person.
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SECTION 6.02 Acceleration.
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of Notes then outstanding may
declare the principal of and accrued but unpaid interest on all the Notes to be
due and payable. Upon such a declaration, such principal and interest shall be
due and payable immediately. If an Event of Default under clause (7) or (8) of
Section 6.01 occurs with respect to the Issuer, any Finco Guarantor, Parent or
the Company occurs and is continuing, the principal of and interest on all the
Notes of such series will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holders
of the Notes. If an Event of Default exists solely by reason of an acceleration
of Indebtedness under clause (6), and such acceleration is rescinded by the
holders of such Indebtedness prior to the time the Notes have been accelerated,
such Event of Default shall cease to exist. After any acceleration pursuant to
this Section 6.02, but before a judgment or decree based on acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Notes (by notice to the Trustee) may rescind and cancel such
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of accelerated principal, premium, if any, or interest that
has become due on the Notes solely because of such acceleration, have been cured
or waived, (ii) to the extent the payment of such interest is lawful, interest
(at the same rate specified in the Notes) on overdue installments of interest
and overdue principal, which has become due otherwise than by such declaration
of acceleration, has been paid, (iii) the Issuer has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances, (iv) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (v) in the event of
the cure or waiver of a Default or Event of Default described in Section 6.01(7)
or (8), the Trustee has received an Officers' Certificate and an Opinion of
Counsel that such Default or Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law. Any costs associated with actions taken by the Trustee under this Section
6.03 shall be reimbursed to the Trustee by the Issuer.
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SECTION 6.04 Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.08 and 8.02, the Holders of a majority
in principal amount of the Notes then outstanding by written notice to the
Trustee have the right to waive any existing Default or compliance with any
provision of this Indenture or the Notes. The Issuer shall deliver to the
Trustee an Officers' Certificate stating that the requisite percentage of
Holders has consented to such waiver. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; provided that no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
SECTION 6.05 Control by Majority.
The Holders of a majority in principal amount of the Notes
outstanding 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 by this Indenture. The Trustee,
however, may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines may be unduly prejudicial to the rights
of another Holder not taking part in such direction, and the Trustee shall have
the right to decline to follow any such direction if the Trustee, being advised
by counsel, determines that the action so directed may not lawfully be taken or
if the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06 Limitation on Suits.
Subject to Section 6.08, a Holder may not institute any proceeding
or pursue any remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and if requested provide to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer, and, if requested, provision
of, security or indemnity; and
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(5) no direction which in the reasonable opinion of the Trustee is
inconsistent with such written request has been given to the Trustee
during such 60 day period by the Holders of a majority in aggregate
principal amount of the Notes then outstanding.
However, such limitations do not apply to a suit instituted by a
Holder of any Note for enforcement of payment of the principal of or interest on
such Note on or after the due date therefor (in the case of any interest payment
or payment of Additional Amounts, after giving effect to the grace period
specified in clause (1) of Section 6.01).
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Issuer or any Guarantor, in its capacity as such, shall have any liability for
any obligations of the Issuer under the Notes or this Indenture or of any
Guarantor under its Note Guarantee or under the Intercreditor Agreements, the
Collateral Documents or the Finco Mirror Note or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes and the Note Guarantees.
SECTION 6.08 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, or premium, if any, and
interest on such Note (including Additional Interest) on or after the respective
due dates expressed on such Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of such Holder.
SECTION 6.09 Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuer or any Guarantor for the whole amount of unpaid principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate set forth in the Notes, and
such further amounts 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.
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SECTION 6.10 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Issuer or any Guarantor, its creditors or
its property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same after deduction of its charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes 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 proceedings.
SECTION 6.11 Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money to the obligations of the Issuer and the Guarantors in
the order specified in Section 7 of the Pledge Agreement.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.11.
SECTION 6.12 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.12 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.08 or a suit by Holders of more than 10% in aggregate
principal amount of the Notes then outstanding.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer
of the Trustee 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 their exercise as a prudent person would exercise or use
under the same circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture but,
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform on their face to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations,
the accuracy of the signatures or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to the terms of Sections 6.04 and 6.05.
(4) 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
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rights, powers or duties if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs (a),
(b) and (c) of this Section 7.01 shall govern every provision of this Indenture
that in any way relates to the Trustee; provided that the Trustee's conduct does
not constitute gross negligence or bad faith.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer or any
Guarantor. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by the law.
SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(1) The Trustee may rely on any document reasonably believed by it
to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the
document.
(2) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a Issuer Request and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board Resolution.
(3) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform in all material respects to the provisions of Section 12.05. The
Trustee shall be protected and shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
(4) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
by it with due care.
(5) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
constitute willful misconduct or negligence.
(6) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
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(7) 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.
(8) 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, coupon or other paper or document.
(9) The Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless the Trustee shall have received written notice thereof
at the Corporate Trust Office of the Trustee, and such notice references
the Notes and this Indenture. As used herein, the term "actual knowledge"
means the actual fact or statement of knowing, without any duty to make
any investigation with regard thereto.
(10) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(11) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against any loss, liability or expense
which may be incurred therein or thereby.
(12) The Trustee shall not be responsible for any information
contained in any notice provision provided to the Trustee by the Issuer
for distribution to the Holders.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the either of the Issuer or any Guarantor,
or any Affiliates thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however, shall
be subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes or any Note
Guarantee, it shall not be accountable for the Issuer's or any Guarantor's use
of the proceeds from the sale of Notes or any money paid to the Issuer or any
Guarantor pursuant to the terms of this Indenture and it shall not be
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responsible for any statement in the Notes, any Note Guarantee or this Indenture
other than the Trustee's certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a Default occurs, is continuing and is known to the Trustee, the
Trustee must mail to each holder of the Notes notice of the Default within 90
days after it occurs. Except in the case of a Default in the payment of
principal of or interest on any Note, the Trustee may withhold notice if and so
long as a committee of its trust officers determines that withholding notice is
not opposed to the interest of the holders of the Notes. The Issuer is required
to deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any event which would constitute certain Defaults, their status and
what action the Issuer is taking or proposes to take in respect thereof.
SECTION 7.06 Reports by Trustee to Holders.
If required by TIA Section 313(a), within 90 days after December 31
of any year, the Trustee shall mail to each Holder a brief report dated as of
such December 31 that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c) and TIA Section 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all Holders of Notes, as the names and addresses of such
Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange on which the Notes are listed. The
Issuer shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 7.07 Compensation and Indemnity.
The Issuer and any Guarantors shall pay to the Trustee and each
Agent from time to time reasonable compensation for its services hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). The Issuer and any
Guarantors shall reimburse the Trustee and each Agent upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
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The Issuer and any Guarantors shall indemnify each of the Trustee
and any predecessor Trustee and each Agent for, and hold each of them harmless
against, any and all loss, damage, claim, liability or expense, including
without limitation taxes (other than taxes based on the income or receipts of
the Trustee or such Agent) and reasonable attorneys' fees and expenses incurred
by each of them in connection with the acceptance or performance of its duties
under this Indenture including the reasonable 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 (including, without
limitation, settlement costs). The Issuer and any Guarantor need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld. The Trustee or Agent, as the case may be, shall notify the Issuer and
any Guarantors in writing promptly of any claim asserted against the Trustee or
such Agent for which it may seek indemnity. However, the failure by the Trustee
or such Agent to so notify the Issuer and any Guarantors shall not relieve the
Issuer and any Guarantors of their obligations hereunder.
Notwithstanding the foregoing, the Issuer and any Guarantors need
not reimburse the Trustee or any Agent for any expense or indemnify it against
any loss or liability incurred by the Trustee or such Agent, as the case may be,
resulting from its own negligence, willful misconduct or bad faith. To secure
the payment obligations of the Issuer and any Guarantors in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee except such money or property held in trust to pay
principal of and interest on particular Notes. The obligations of the Issuer and
any Guarantors under this Section 7.07 to compensate and indemnify the Trustee
and each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall be joint and
several liabilities of the Issuer and any Guarantors and shall survive the
resignation or removal of the Trustee and the satisfaction, discharge or other
termination of this Indenture, including any termination or rejection hereof
under any Bankruptcy Law.
When the Trustee incurs expenses (including reasonable fees and
expenses of its Agents and counsel) or renders services after an Event of
Default specified in clause (7) or (8) of Section 6.01 hereof occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to Article Nine.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Issuer and any Guarantors
in writing. The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by notifying the Issuer and the removed Trustee in
writing and may appoint a successor Trustee with the Issuer's written consent,
which consent shall not be unreasonably withheld. The Issuer may remove the
Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
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(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of performing its duties
hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify the Holders of such
event and shall promptly appoint a successor Trustee. Within one year after such
successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the Notes then outstanding may appoint a successor Trustee to replace
such successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of a majority in principal amount of the outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07, transfer all property held by it as Trustee to the successor Trustee, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to
each Holder. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's and any Guarantor's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Consolidation, Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10, the successor corporation without any
further act shall be the successor Trustee; provided such entity shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $100,000,000 as set forth in the most recent applicable
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published annual report of condition. The Trustee shall comply with TIA Section
310(b), including the provision in Section 310(b)(1).
SECTION 7.11 Preferential Collection of Claims Against Issuer.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
SECTION 7.12 Paying Agents.
The Issuer shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(1) that it shall hold all sums held by it as agent for the payment
of principal of, or premium, if any, or interest on, the Notes (whether
such sums have been paid to it by the Issuer, any Guarantor or by any
other obligor on the Notes) in trust for the benefit of Holders of the
Notes or the Trustee;
(2) that it shall at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(3) that it shall give the Trustee written notice within three
Business Days of any failure of the Issuer, any Guarantor or by any
obligor on the Notes in the payment of any installment of the principal
of, premium, if any, or interest on, the Notes when the same shall be due
and payable.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01 Without Consent of Holders.
The Issuer and any Guarantors, when authorized by a Board Resolution
of each of them, and the Trustee, when an Officers' Certificate is provided
stating that such amendment or supplement complies with the provisions of this
Section 8.01, may amend, waive or supplement this Indenture, the Collateral
Documents, the Parent Subordination Agreement, the Finco Mirror Note, the Finco
Subordinated Note, any Company Note, the Intercreditor Agreements or the Notes
without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
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(2) to provide for the assumption by a successor entity of the
obligations of Parent, the Issuer, the Company or any Company Guarantor
under this Indenture;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes (provided that the uncertificated Notes are issued
in registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code);
(4) to add additional Note Guarantees or Collateral with respect to
the Notes;
(5) to add to the covenants of the Issuer or any Guarantor for the
benefit of the holders of the Notes or to surrender any right or power
conferred upon the Issuer or any Guarantor;
(6) to make any change that does not adversely affect the rights of
any holder of the Notes;
(7) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the Trust Indenture Act;
(8) to enter into any Inventory Intercreditor Agreement and
subordinate the Lien of the Trustee under the Inventory Security Agreement
to the Lien of any Person that holds a Lien on the Inventory Collateral
permitted by clause (1) of the definition "Permitted Inventory Collateral
Liens" on terms not less favorable to the holders of the Notes than the
terms of the GECC Intercreditor Agreement and, in connection therewith, to
amend the Inventory Security Agreement to provide such parties rights on
terms no less favorable to the holders of Notes than the rights provided
in the Inventory Security Agreement to the agent and lenders under the
GECC Credit Agreement thereunder; or
(9) to enter into a Receivables Intercreditor Agreement with any
party that holds a Permitted Lien in Receivables and Related Assets on
terms no less favorable to the Holders of Notes than the terms of the
Existing Receivables Intercreditor Agreement and, in connection therewith,
to amend the Inventory Security Agreement to provide such parties rights
on terms no less favorable to the Holders of Notes than the rights
provided to the counterparties of the Company in the Existing Receivables
Intercreditor Agreement.
The Trustee is hereby authorized to join with the Issuer and any
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture or any amendment or supplement to the
Collateral Documents or the Intercreditor Agreements and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
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SECTION 8.02 With Consent of Holders.
The Issuer (when authorized by a Board Resolution) and any Guarantor
(when authorized by a Board Resolution) may, subject to Section 8.06, direct the
Trustee to modify or supplement this Indenture, the Collateral Documents, the
Parent Subordination Agreement, the Finco Mirror Note, the Finco Subordinated
Note, any Company Note, the Intercreditor Agreements and/or the Notes with the
written consent of the Holders of at least a majority in aggregate principal
amount of all series of the Notes then outstanding, provided that:
(a) if any such amendment or waiver directly and disproportionately
affects one series of Notes, such amendment or waiver shall require the
consent of the Holders of a majority in principal amount of such series of
Notes, and if any such amendment only affects one series of Notes, the
Holders of the other series of Notes shall not be required to consent
thereto; and
(b) subject to clause (a) above, without the consent of each Holder
affected, the Issuer and the Trustee may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal of or extend the Maturity Date of any Note;
(4) reduce the amount payable upon the redemption of any Note or
change the time at which any Note may be redeemed as described under
Sections 3.07, 3.08 or 3.10;
(5) make any Note payable in money other than that stated in the
Note;
(6) impair the right of any holder of the Notes to receive payment
of principal of and interest on such holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on
or with respect to such holder's Notes;
(7) make any change in the amendment provisions which require each
Holder's consent or in the waiver provisions;
(8) make any change in the ranking or priority of any Note or any
Note Guarantee that would adversely affect the Holders of Notes or release
any Guarantor from its Note Guarantee except as provided in this
Indenture;
(9) except as specifically permitted by this Indenture or the
Collateral Documents, make any change in the provisions in this Indenture
or the Collateral Documents
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dealing with the application of proceeds from Collateral that would
materially and adversely affect the holders of Notes or release any
Pledgor from the Pledge Agreement or release the Company from the
Inventory Security Agreement except as provided in this Indenture or the
Collateral Documents;
(10) make any change in the provisions of Section 4.18 that
adversely affects the rights of any Noteholder, or amend the terms of the
Notes or this Indenture in a way that would result in the loss of an
exemption from any of the Taxes described thereunder; or
(11) make any change to Section 4.14 after a Change of Control has
occurred or any change to the provisions of Section 4.10 at any time that
the Issuer has become obligated to offer to purchase Notes .
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Issuer shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the written request of the Issuer, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Holders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06, the Trustee shall join with
the Issuer and any Guarantors in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 8.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 8.04 Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder is a continuing consent conclusive and
binding upon such Holder and every subsequent Holder of the same Note or portion
thereof, and of any Note issued upon the transfer thereof or in exchange
therefor or in place thereof, even if notation of the consent is not made on any
such Note. Any such Holder or subsequent Holder, however, may revoke the consent
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as to his Note or portion of a Note, if the Trustee receives the written notice
of revocation before the date the amendment, supplement, waiver or other action
becomes effective.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 120 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
An amendment, supplement, waiver or other action becomes effective
in accordance with its terms and thereafter shall bind every Holder, unless it
makes a change described in any of clauses (1) through (11) of Section 8.02(b).
In that case the amendment, supplement, waiver or other action shall bind each
Holder who has consented to it and every subsequent Holder or portion of a Note
that evidences the same debt as the consenting Holder's Note.
SECTION 8.05 Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee (in accordance with the specific written direction of the Issuer)
shall request the Holder of the Note (in accordance with the specific written
direction of the Issuer) to deliver it to the Trustee. In such case, the Trustee
shall at the expense of the Issuer place an appropriate notation on the Note
about the changed terms and return it to the Holder. Alternatively, if the
Issuer or the Trustee so determines, the Issuer in exchange for the Note shall
issue, any Guarantors shall endorse and the Trustee shall authenticate a new
Note that reflects the changed terms. Failure to make the appropriate notation
or issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 8.06 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Eight if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Sections 7.01 and 7.02, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating, in addition to the matters required by Section 12.04, that such
amendment, supplement or waiver is authorized or permitted by this Indenture and
is a legal, valid and binding obligation of the Issuer and any Guarantors,
enforceable against the Issuer and any Guarantors in accordance with its terms
(subject to customary exceptions).
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ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01 Discharge of Indenture.
The Issuer may terminate its obligations under the Notes, the
Collateral Documents and this Indenture as well as the obligations of any
Guarantors under their respective Note Guarantees, except those obligations
referred to in the penultimate paragraph of this Section 9.01 if:
(1) all the Notes that have been authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid and Notes
for whose payment money has been deposited in trust or segregated and held
in trust by the Issuer and thereafter repaid to the Issuer or discharged
from this trust) have been delivered to the Trustee for cancellation, or
(2) (a) all Notes not delivered to the Trustee for cancellation
otherwise have become due and payable or have been called for redemption
pursuant to Section 3.07 or Section 3.08 and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee trust funds in trust
in an amount of money sufficient to pay and discharge the entire
Indebtedness (including all principal and accrued interest) on the Notes
not theretofore delivered to the Trustee for cancellation, and
(b) the Issuer has delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment of the Notes at maturity
or on the date of redemption, as the case may be.
Notwithstanding the first paragraph of this Section 9.01, the
Issuer's obligations in Sections 2.06, 2.07, 2.08, 7.07, 9.05 and 9.06 shall
survive until the Notes have been paid in full. Thereafter, the Issuer's
obligations in Section 7.07, 9.05 and 9.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon written
request of the Issuer shall acknowledge in writing the discharge of the Issuer's
and each Guarantor's obligations under the Notes, the Note Guarantees and this
Indenture, as the case may be, except for those surviving obligations specified
above.
SECTION 9.02 Legal Defeasance.
At any time when no Floating Rate Notes are outstanding, the Issuer
may at its option at any time, by Board Resolution of the Issuer, be discharged
from its obligations with respect to the Notes and any Guarantors may be
discharged from their obligations under their respective Note Guarantees on the
date the conditions set forth in Section 9.04 are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, "Legal Defeasance" means that the Issuer
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and any Guarantors shall be deemed to have paid and discharged the entire
Indebtedness represented by the Notes and the Note Guarantees, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 9.08
and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all of its other obligations under such Notes, such
Note Guarantees and this Indenture, as the case may be, insofar as such Notes
are concerned (and the Trustee, at the expense of the Issuer, shall, subject to
Section 9.06 hereof, execute instruments in form and substance reasonably
satisfactory to the Trustee and the Issuer acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Notes to receive solely from
the trust funds described in Section 9.04, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due, (B) the Issuer's obligations with
respect to such Notes under Sections 2.04, 2.05, 2.07, 2.08 and 2.11, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee pursuant to Section 7.07) and
(D) this Article Nine. Subject to compliance with this Article Nine, the Issuer
may exercise its option under this Section 9.02 with respect to the Notes
notwithstanding the prior exercise of its option under Section 9.03 with respect
to the Notes.
SECTION 9.03 Covenant Defeasance.
At any time when no Floating Rate Notes are outstanding, at the
option of the Issuer, pursuant to a Board Resolution of the Issuer, the Issuer
and any Guarantors shall be released from their respective obligations under
Sections 4.02 (except for obligations mandated by the TIA), 4.04, 4.06 through
4.17, inclusive, Section 4.21 and clauses (a)(3) and (a)(4) of Section 5.01 with
respect to the outstanding Notes and from the operation of Section 6.01(7) (with
respect to any Guarantor other than Parent or the Company), (8) (with respect to
any Guarantor other than Parent or the Company), (9), (11) and (12) on and after
the date the conditions set forth in Section 9.04 are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, "Covenant Defeasance" means that the
Issuer and any Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section or portion thereof, whether directly or indirectly by reason of any
reference elsewhere herein to any such specified Section or portion thereof or
by reason of any reference in any such specified Section or portion thereof to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default under clause (3), (4) or (5) of Section 6.01,
but, except as specified above, the remainder of this Indenture and the Notes
shall be unaffected thereby. If the funds deposited with the Trustee to effect
Covenant Defeasance are insufficient to pay all remaining principal and interest
on the Notes when due, the Issuer's obligations and the obligations of the
Guarantors under this Indenture will be revived and no such Covenant Defeasance
shall be deemed to have occurred.
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SECTION 9.04 Conditions to Legal Defeasance or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, U.S. legal tender, U.S. Government
Obligations or a combination thereof, in such amounts as will be
sufficient in the opinion of a nationally recognized firm of independent
public accountants selected by the Issuer, to pay the principal of and
interest on the Notes on the stated date for payment or on the redemption
date of the principal or installment of principal of or interest on the
Notes, and the Holders must have a valid, perfected, exclusive security
interest in such trust,
(2) in the case of Legal Defeasance, the Issuer shall have delivered
to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that:
(a) the Issuer has received from, or there has been published
by the Internal Revenue Service, a ruling, or
(b) since the date of this Indenture, there has been a change
in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon this opinion of
counsel shall confirm that, the Holders shall not recognize income, gain
or loss for U.S. federal income tax purposes as a result of the Legal
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 Legal Defeasance had not occurred,
(3) in the case of Covenant Defeasance, the Issuer shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders shall 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 the Covenant Defeasance had not occurred,
(4) no Default shall have occurred and be continuing on the date of
such deposit (other than a Default resulting from the borrowing of funds
to be applied to such deposit and the grant of any Lien securing such
borrowing),
(5) the Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under this Indenture or
any other material agreement or instrument to which the Issuer or any of
its Subsidiaries is a party or by which the Issuer or any of its
Subsidiaries is bound,
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(6) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by it with the intent of
preferring the Holders over any other of its creditors or with the intent
of defeating, hindering, delaying or defrauding any other of its creditors
or others, and
(7) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that the conditions
provided for in, in the case of the Officers' Certificate, clauses (1)
through (6) and, in the case of the opinion of counsel, clauses (1) (with
respect to the validity and perfection of the security interest), (2)
and/or (3) and (5) of this paragraph have been complied with.
SECTION 9.05 Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer and any Guarantors shall (on a joint and several basis)
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
9.04 or the principal, premium, if any, and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon an Issuer
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 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 Legal Defeasance or Covenant
Defeasance.
SECTION 9.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article Nine by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuer's and each Guarantor's obligations under this Indenture,
the Notes and the Note Guarantees, as the case may be, shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Nine until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in
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accordance this Article Nine; provided that (a) if the Issuer or any Guarantors
have made any payment of principal of, premium, if any, or accrued interest on
any Notes because of the reinstatement of their obligations, the Issuer or such
Guarantor, as the case may be, shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or U.S. Government
Obligations, as the case may be, held by the Trustee or Paying Agent and (b)
unless otherwise required by any legal proceeding or any order or judgment of
any court or governmental authority, the Trustee or the Paying Agent shall
return all such money and U.S. Government Obligations to the Issuer after
receiving a written request therefor at any time, if such reinstatement of the
Issuer's obligations has occurred and continues to be in effect.
SECTION 9.07 Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Issuer, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.04 hereof, to the
Issuer upon an Issuer Request (or, if such moneys had been deposited by any
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.08 Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then
held by the Issuer or any Guarantor in trust for the payment of the principal
of, or premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable, shall be repaid to the Issuer (or, if
appropriate, any Guarantor) upon an Issuer Request, or if such moneys are then
held by the Issuer or any Guarantor in trust, such moneys shall be released from
such trust; and the Holder of such Note entitled to receive such payment shall
thereafter, as an unsecured general creditor, subject to applicable abandonment
property laws, look only to the Issuer and any Guarantors for the payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided that the Trustee or any such
Paying Agent, before being required to make any such repayment, may, at the
expense of the Issuer and any Guarantors, either mail to each Holder affected,
at the address shown in the register of the Notes maintained by the Registrar
pursuant to Section 2.04 hereof, or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of New York,
New York, a 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
mailing or publication, any unclaimed balance of such moneys then remaining
shall be repaid to the Issuer. After payment to the Issuer or any Guarantor or
the release of any money held in trust by the Issuer or any Guarantor, as the
case may be, Holders entitled to the money must look only to the Issuer and any
Guarantors for payment as general creditors unless applicable abandoned property
law designates another Person.
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ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01 Note Guarantee.
Subject to the provisions of this Article Ten each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors, irrespective of (i) the validity and enforceability of any other
provision of this Indenture, the Notes or the obligations of the Issuer or any
other Guarantors to the Holders or the Trustee hereunder or thereunder or (ii)
the absence of any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or default of a
Guarantor, that: (a) the principal of, premium, if any, interest, if any, with
respect to the Notes shall be duly and punctually paid in full when due, whether
at maturity, by acceleration or otherwise, and interest on the overdue principal
and (to the extent permitted by law) interest, if any, with respect to the Notes
and all other obligations of the Issuer or any Guarantor to the Holders or the
Trustee hereunder or thereunder (including amounts due the Trustee under Section
7.07) and all other obligations under this Indenture or the Notes shall be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the same shall be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed, or failing performance of any other obligation
of the Issuer to the Holders, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately.
Each Guarantor, by execution of this Indenture (including any
supplemental indenture), agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of any
other provision of this Indenture or the Notes, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, any release of any other Guarantor, the recovery
of any judgment against the Issuer, any action to enforce the same, whether or
not a notation of guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor (other than the indefeasible payment in full of the
Obligations guaranteed hereby). Each Guarantor, by execution of this Indenture
(including any supplemental indenture), waives the benefit of diligence,
presentment, demand for payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenant that
its obligations under this Article Ten shall not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture. The Note Guarantee is a guarantee of payment and not of collection.
If any Holder or the Trustee is required by any court or otherwise to return to
the Issuer or to any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Issuer or such Guarantor, any amount
paid by the
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Issuer or such Guarantor to the Trustee or such Holder, the Note Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (a) subject to this Article Ten, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six hereof for the purposes of the Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (b) in the event of any acceleration of
such obligations as provided in Article Six hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of such Note Guarantee.
The Note Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuer
for liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are
pursuant to applicable law rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
No shareholder, officer, director, employee or incorporator, past,
present or future, or any Guarantor, as such, shall have any personal liability
under this Note Guarantee by reason of his, her or its status as such
shareholder, officer, director, employee or incorporator.
SECTION 10.02 Execution and Delivery of Note Guarantee.
To further evidence the Note Guarantee set forth in Section 10.01,
each Guarantor hereby agrees that a notation of such Note Guarantee,
substantially in the form included in Exhibit F hereto, shall be endorsed on
each Note authenticated and delivered by the Trustee after this Article Ten with
respect to such Guarantor becomes effective in accordance with Section 10.04 and
such notation shall be executed by either manual or facsimile signature of an
Officer of each Guarantor. The validity and enforceability of any Note Guarantee
shall not be affected by the fact that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Note Guarantee set
forth in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
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The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Note Guarantee set forth
in this Indenture on behalf of the Guarantor.
SECTION 10.03 Limitation of Note Guarantee.
The obligations of each Guarantor under its Note Guarantee are
limited to the maximum amount as shall, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Note Guarantee or
pursuant to its contribution obligations under this Indenture, result in the
obligations of such Guarantor under the Note Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law. Each
Guarantor that makes a payment or distribution under a Note Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the net assets of each Guarantor, determined in accordance with GAAP.
SECTION 10.04 Additional Company Guarantors.
If (i) the Company forms or acquires a domestic Restricted
Subsidiary which, or (ii) any domestic Restricted Subsidiary of the Company on
the Issue Date at any time following the Issue Date, in each case, (x) Incurs
Indebtedness other than Indebtedness owed to or a Guarantee in favor of the
Company or a Guarantor or (y) owns net assets (other than intercompany
receivables owing from the Company to a Restricted Subsidiary) with a fair
market value in excess of $5.0 million (as determined by the Board of Directors
of the Company) (in each case, other than a Securitization Subsidiary), then the
Company shall cause such Restricted Subsidiary to:
(1) execute and deliver to the Trustee a supplemental indenture in
form reasonably satisfactory to the Trustee pursuant to which such
Restricted Subsidiary shall issue a Note Guarantee; and
(2) deliver to the Trustee an opinion of counsel (which may contain
customary exceptions) that such supplemental indenture and Note Guarantee
have been duly authorized, executed and delivered by such Restricted
Subsidiary and constitute legal, valid, binding and enforceable
obligations of such Restricted Subsidiary.
Thereafter, such Restricted Subsidiary shall be a Company Guarantor
for all purposes of this Indenture. The Company may cause any other Restricted
Subsidiary of the Company to issue a Note Guarantee and become a Company
Guarantor.
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SECTION 10.05 Release of Company Guarantor.
A Company Guarantor shall be released from all of its obligations
under its Note Guarantee if:
(i) the Company Guarantor has sold all of its assets or the Issuer
and its Restricted Subsidiaries have sold all of the Equity Interests of
the Company Guarantor owned by them, in each case in a transaction in
compliance with the terms of this Indenture (including Sections 4.10 and
5.01);
(ii) the Company Guarantor merges with or into or consolidates with,
or transfers all or substantially all of its assets to, the Issuer or
another Company Guarantor in a transaction in compliance with Section
5.01; or
(iii) the Company Guarantor is designated an Unrestricted Subsidiary
in compliance with the terms of this Indenture;
and in each such case, the Company Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to such transactions have been
complied with and that such release is authorized and permitted hereunder.
If all of the conditions to release contained in this Section 10.05
have been satisfied, the Trustee shall execute any documents reasonably
requested by the Issuer or any Company Guarantor in order to evidence the
release of such Company Guarantor from its obligations under its Note Guarantee
endorsed on the Notes and under this Article Ten.
SECTION 10.06 Waiver of Subrogation.
Each Guarantor, by execution of this Indenture, agrees to the extent
permitted by law that it will not make any claim or other rights which it may
now or hereafter acquire against the Issuer that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations under such
Note Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder against the Issuer, whether or
not such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuer, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment on account of such claim or other rights, unless and
until all amounts owing to the Trustee and the Holders on account of the
Obligations hereunder and under the Notes are paid in full. If any amount shall
be paid to any Guarantor in violation of the preceding sentence and the Notes
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee
for the benefit of such Holders to be credited and applied upon the Notes,
whether matured or unmatured, in accordance
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with the terms of this Indenture. Each Guarantor, by execution of its Note
Guarantee, shall acknowledge that it shall receive direct and indirect benefits
from the financing arrangements contemplated by this Indenture and that the
waiver set forth in this Section 10.06 is knowingly made in contemplation of
such benefits.
ARTICLE ELEVEN
COLLATERAL
SECTION 11.01 Collateral; Additional Collateral; Substitute Collateral.
(a) In order to secure the due and punctual payment of the principal
of, premium, if any, and interest on the Notes, and all other obligations
of the Issuer and the Guarantors under this Indenture, the Notes and the
Collateral Documents, when and as the same shall be due and payable, the
Issuer, the Finco Guarantors and the Trustee have simultaneously with the
execution of this Indenture entered into the Pledge Agreement and the
Trustee and the Company have entered into the Inventory Security Agreement
to create the security interests securing such obligations. The Trustee,
the Company, the Issuer and the Finco Guarantors each hereby agree that
the Trustee holds its interest in the Collateral in trust for its benefit
and for the benefit of the Holders pursuant to the terms of the Collateral
Documents. Each of the Company, the Issuer and the Finco Guarantors
covenants and agrees that it shall execute, acknowledge and deliver to the
Trustee such further assignments, transfers, assurances or other
instruments and shall do or cause to be done all such acts and things as
may be necessary or proper to assure and confirm to the Trustee its
interest in the Collateral, or any part thereof, as from time to time
constituted, and the right, title and interest in and to the Collateral
Documents so as to render the same available for the security and benefit
of this Indenture and of the Notes.
(b) As soon as practicable following the acquisition by the Issuer
or any Finco Guarantor of any Pledged Securities, the Issuer or such Finco
Guarantor shall take all action required by the Pledge Agreement with
respect thereto. Additionally, the Company shall take all actions required
by the Inventory Security Agreement in order to preserve the Lien of the
Trustee in the Inventory Collateral.
SECTION 11.02 Recording, Registration and Opinions.
The Issuer shall furnish to the Trustee on the anniversary of the
Issue Date in each year, beginning with 2005, an Opinion of Counsel, dated as of
such date, which complies with TIA Section 314(b)(2), either (i)(x) stating
that, in the opinion of such counsel, such action has been taken with respect to
the delivery of Collateral, recordings, registrations, filings, re-recordings,
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re-registrations and refilings of this Indenture, the Collateral Documents and
all supplemental indentures, financing statements, continuation statements and
other instruments of further assurance as are necessary to maintain the
perfected Liens of the Collateral Documents under applicable law in those items
of Collateral that can be perfected by the filing, recordings, registrations or
delivery and reciting with respect to such Liens on and security interests in
the Collateral the details of such action or referring to prior Opinions of
Counsel in which such details are given, and (y) stating that, based on relevant
laws as in effect on the date of such Opinion of Counsel, all financing
statements, continuation statements, and other documents have been executed and
filed that are necessary, as of such date and during the succeeding 12 months,
fully to maintain the perfection of the security interests of the Trustee
hereunder and under the Collateral Documents with respect to the Collateral;
provided that if there is a required filing of a continuation statement or other
instrument within such 12 month period and such continuation statement or other
instrument is not effective if filed at the time of the opinion, such opinion
may so state and in that case the Issuer shall cause a continuation statement or
other instrument to be timely filed so as to maintain such Liens and security
interests and shall provide a further Opinion of Counsel to the effect of this
clause (i) upon the filing of the relevant continuation statement or other
instrument; or (ii) stating that, in the opinion of such counsel, no such action
is necessary to maintain such Liens or security interests.
SECTION 11.03 Release of Collateral.
The Trustee shall not at any time release its Lien on the Pledged
Collateral except in accordance with the provisions of the Pledge Agreement. The
Trustee shall only release its Lien on the Inventory Collateral (i) as provided
in the Inventory Security Agreement and any Inventory Intercreditor Agreement
and (ii) in connection with any sale of all or any portion of the Inventory
Collateral in which the holder of a prior Permitted Inventory Collateral Lien on
the Inventory Collateral is releasing its Lien on such Inventory Collateral;
provided that if such sale of Inventory Collateral is an Asset Disposition, the
Company shall apply the Net Available Cash therefrom in accordance with Section
4.10.
SECTION 11.04 Possession and Use of Collateral.
Subject to and in accordance with the provisions of this Indenture
and the Pledge Agreement, so long as the Trustee has not exercised rights or
remedies with respect to the Collateral in connection with an Event of Default
that has occurred and is continuing, except as provided in the Pledge Agreement,
the Issuer, the Company and the Finco Guarantors shall have the right to remain
in possession and retain exclusive control of and to exercise all rights with
respect to the Collateral, to freely, operate, manage, develop, lease, use,
consume and enjoy the Collateral, to alter or repair any Collateral so long as
such alterations and repairs do not impair the Liens of the Collateral Documents
thereon, and otherwise comply with Section 11.04 hereof, and to collect,
receive, use, invest and dispose of the profits, revenues, proceeds and other
income thereof.
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SECTION 11.05 Authorization of Actions to Be Taken by the Trustee Under
the Collateral Documents and the Intercreditor Agreements.
Subject to the provisions of the Collateral Documents and the
Intercreditor Agreements:
(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 Collateral Documents; and
(ii) collect and receive any and all amounts payable in respect of the
obligations of the Company, the Issuer and the Finco Guarantors hereunder
and under the Collateral Documents;
(b) the Trustee shall have power to institute and to maintain such
suits and proceedings as it may deem reasonably necessary to prevent any
impairment of the Collateral by any act that may be unlawful or in
violation of the Collateral Documents or this Indenture, and such suits
and proceedings as the Trustee may deem reasonably necessary to preserve
or protect its interests and the interests of the Holders in the
Collateral (including the power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
thereunder or be prejudicial to the interests of the Holders or of the
Trustee); and
(c) By acquiring a Note and without any further action on its part,
each Holder hereby consents to the terms of each Intercreditor Agreement
and authorizes and directs the Trustee to take each action that the
Trustee is required to take pursuant to the terms of each Intercreditor
Agreement.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
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SECTION 12.02 Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
If to the Issuer or any Guarantor, to it c/o:
Ispat Inland Inc.
3210 Watling Street
East Chicago, IN 46312
Attention: Chief Financial Officer
Fax Number: (219) 399-5544
with a copy to:
Mayer Brown Rowe & Maw LLP
190 South LaSalle Street
Chicago, IL 60603
Attention: J. Trent Anderson
Fax Number: (312) 706-8101
If to the Trustee:
LaSalle Bank National Association
Corporate Trust Services Division
135 S. LaSalle Street, Suite 1960
Chicago, IL 60603
Attention: Corporate Trust Officer
Fax Number: (312) 904-2236
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Issuer, any Guarantor or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
-120-
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Where this Indenture provides for notice in any manner, such notice
may be waived by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
SECTION 12.03 Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any Guarantor to
the Trustee to take or refrain from taking any action under this Indenture, the
Issuer or such Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 12.05 Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance by or on
behalf of the Issuer or any Guarantor with a condition or covenant provided for
in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
-121-
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
SECTION 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of
Holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
SECTION 12.07 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 12.08 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
By the execution and delivery of this Indenture, each of the Issuer
and each Guarantor (i) acknowledges that it has, by separate written instrument,
designated and appointed CT Corporation System as its authorized agent upon
which process may be served in any suit, action or proceeding arising out of or
relating to the Notes or this Indenture that may be instituted in any Federal or
State court in the State of New York, Borough of Manhattan, or brought under
Federal or State securities laws or brought by the Trustee (whether in its
individual capacity or in its capacity as Trustee hereunder), and acknowledges
that CT Corporation System has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
agrees that service of process upon CT Corporation System and written notice of
said service to it (mailed or delivered to its Executive Director at its
principal office as specified in Section 12.02 hereof), shall be deemed in every
respect effective service of process upon it in any such suit or proceeding. The
Issuer and each Guarantor further agree to take any and all action, including
the execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of CT Corporation System,
in full force and effect so long as this Indenture shall be in full force and
effect; provided that the Issuer may and shall (to the extent CT Corporation
System ceases to be able to be served on the basis contemplated herein), by
written notice to the Trustee, designate such additional or alternative agent
for service of process under this Section 12.08 that (i) maintains an office
located in the Borough of Manhattan, The City of New York in the State of New
York, (ii) is either (x) counsel for the Issuer or (y) a corporate service
company which acts as agent for service of process for other Persons in the
ordinary course of its business and (iii) agrees to act as agent for service of
process in accordance with this Section 12.08. Such notice shall identify the
name of such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York. Upon the request
of any Holder, the Trustee shall deliver such
-122-
information to such Holder. Notwithstanding the foregoing, there shall, at all
times, be at least one agent for service of process for the Issuer and any
Guarantors, if any, appointed and acting in accordance with this Section 12.08.
To the extent that the Issuer or any Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, the Issuer and such Guarantor hereby irrevocably waives such immunity
in respect of its obligations under this Indenture and the Securities, to the
extent permitted by law.
SECTION 12.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Issuer or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 12.10 No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Issuer or any Guarantor, in its capacity as such, will have any liability for
any obligations of the Issuer or any Guarantor under the Notes, the Note
Guarantees, the Intercreditor Agreements, the Pledge Agreement, the Finco Mirror
Note or this Indenture or for any claim based on, in respect of, or by reason of
such obligations or their creation. Each holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
SECTION 12.11 Successors.
All agreements of the Issuer and any Guarantors in this Indenture
and the Notes shall bind their respective successors. All agreements of the
Trustee, any additional trustee and any Paying Agents in this Indenture shall
bind its successor.
SECTION 12.12 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
SECTION 12.13 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be
-123-
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 12.14 Separability.
Each provision of this Indenture shall be considered separable and
if for any reason any provision which is not essential to the effectuation of
the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
[Remainder of page intentionally left blank]
S-1
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed all as of the date and year first written above.
ISPAT INLAND ULC,
as Issuer
By: /s/ Bhikam C. Agarwal
---------------------------
Name: Bhikam C. Agarwal
Title: Vice President
S-2
ISPAT INTERNATIONAL N.V.,
as Guarantor
By: /s/ Bhikam C. Agarwal
----------------------------------
Name: Bhikam C. Agarwal
Title: Chief Financial Officer
Ispat Inland INC.,
as Guarantor
By: /s/ Michael G. Rippey
----------------------------------
Name: Michael G. Rippey
Title: Executive Vice President,
Commercial and Chief
Financial Officer
Ispat Inland, L.P.,
as Guarantor
By: /s/ Richard LeBlanc
----------------------------------
Name: Richard LeBlanc
Title: Chairman of 9064-4816 Quebec
Inc., General Partner
3019693 NOVA SCOTIA U.L.C.,
as Guarantor
By: /s/ Richard LeBlanc
----------------------------------
Name: Richard LeBlanc
Title: Chairman
Ispat Inland Finance, LLC,
as Guarantor
S-3
By: /s/ Thomas A. McCue
----------------------------------
Name: Thomas A. McCue
Title: Manager
BURNHAM TRUCKING COMPANY, INC.,
as Guarantor
By: /s/ Edward C. McCarthy
----------------------------------
Name: Edward C. McCarthy
Title: Secretary
INCOAL COMPANY,
as Guarantor
By: /s/ Edward C. McCarthy
----------------------------------
Name: Edward C. McCarthy
Title: Secretary
ISPAT INLAND MINING COMPANY,
as Guarantor
By: /s/ Edward C. McCarthy
----------------------------------
Name: Edward C. McCarthy
Title: Secretary
ISPAT INLAND SERVICE CORP.,
as Guarantor
By: /s/ Edward C. McCarthy
----------------------------------
Name: Edward C. McCarthy
Title: Secretary
S-4
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Wayne M. Evans
-------------------------------
Name: Wayne M. Evans
Title: First Vice President
EXHIBIT A-1
CUSIP
ISPAT INLAND ULC
No. $
SENIOR SECURED FLOATING RATE NOTE DUE 2010
ISPAT INLAND ULC, an unlimited liability company incorporated under
the laws of Nova Scotia, Canada (the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
promises to pay to CEDE & CO. or registered assigns the principal sum of [ ]
DOLLARS ($[ ]) on April 1, 2010 at the office or agency of the Issuer referred
to below.
Interest Payment Dates: January 1, April 1, July 1 and October 1.
Record Dates: December 15, March 15, June 15 and September 15.
Reference is made to the further provisions of this Note contained
herein, which shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
ISPAT INLAND ULC
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
A-1-1
Dated:
A-1-2
Certificate of Authentication
This is one of the Senior Secured Floating Rate Notes due 2010
referred to in the within-mentioned Indenture.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: ________________________________
Name:
Title:
Dated:
A-1-3
[FORM OF REVERSE OF NOTE]
Ispat Inland ULC
SENIOR SECURED FLOATING RATE NOTE DUE 2010
1. Interest. ISPAT INLAND ULC, an unlimited liability company
incorporated under the laws of Nova Scotia, Canada (the "Issuer"), promises to
pay, until the principal hereof is paid or made available for payment, interest
on the principal amount set forth on the face hereof at a rate of LIBOR (as
defined below) plus 6.75% per annum. Interest hereon will accrue from the date
of original issuance or, if interest has already been paid, from the date it was
most recently paid. Interest on the Notes will be payable quarterly in arrears
on January 1, April 1, July 1 and October 1 commencing on July 1, 2004, to the
holders of record on the immediately preceding December 15, March 15, June 15
and September 15.
The amount of interest for each day that the Floating Rate Notes are
outstanding (the "Daily Interest Amount") will be calculated by dividing the
interest rate in effect for such day by 360 and multiplying the result by the
principal amount of the Floating Rate Notes. The amount of interest to be paid
on the Floating Rate Notes for each Interest Period will be calculated by adding
the Daily Interest Amounts for each day in the Interest Period.
All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point being rounded upwards
(e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655). All
calculations will be rounded to the nearest cent (with one-half cent being
rounded upwards).
The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
The Calculation Agent will, upon the request of the Holder of any
Floating Rate Note, provide the interest rate then in effect with respect to the
Floating Rate Notes. All calculations made by the Calculation Agent in the
absence of manifest error will be conclusive for all purposes and binding on the
Issuer, the Guarantors and the Holders of the Floating Rate Notes.
The Issuer will pay interest on overdue principal at 1% per annum in
excess of the above rate and will pay interest on overdue installments of
interest at such higher rate, in each case, to the extent lawful.
A-1-4
2. Method of Payment. The Issuer shall pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the December 15, March 15, June 15 and September 15 next preceding
the interest payment date (whether or not a Business Day). Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuer
shall pay principal and interest in money of the United States of America that
at the time of payment is legal tender for payment of public and private debts.
Interest may be paid by check mailed to the Holder entitled thereto at the
address indicated on the register maintained by the Registrar for the Notes.
3. Paying Agent, Registrar and Calculation Agent. Initially, LaSalle
Bank National Association (the "Trustee") shall act as a Paying Agent, Registrar
and Calculation Agent. The Issuer may change any Paying Agent or Registrar
without notice. The Issuer or any of its Affiliates may act as Paying Agent or
Registrar but not as Calculation Agent.
4. Indenture. This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Senior Secured Floating Rate Notes due 2010
(herein called the "Floating Rate Notes," and together with the Fixed Rate Notes
(as defined in the Indenture), the "Notes"). The Issuer issued the Notes under
an Indenture dated as of March 25, 2004 (the "Indenture") among the Issuer, the
Guarantors and the Trustee. This is one of an issue of Notes of the Issuer
issued, or to be issued, under the Indenture. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as in
effect on the date of the Indenture (the "Act"). The Notes are subject to all
such terms, and Holders are referred to the Indenture and the Act for a
statement of them. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. Capitalized and certain other terms used herein and
not otherwise defined have the meanings set forth in the Indenture.
5. Optional Redemption. The Floating Rate Notes may be redeemed at
the Issuer's option to the extent and at the prices set forth in Article Three
of the Indenture.
6. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Issuer defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption,
unless the Issuer shall fail to redeem any Notes.
7. Offers to Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Disposition and subject to further
limitations contained therein, the Issuer shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
8. Security; Intercreditor Agreements. The Company, the Issuer and
the Finco Guarantors have granted Liens on certain of their assets to the
Trustee pursuant to the
A-1-5
Collateral Documents. The Trustee has entered into certain Intercreditor
Agreements on behalf of itself and the Holders of Notes.
9. Registration Rights. Pursuant to the Registration Rights
Agreement, the Issuer and the Guarantors shall be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for notes of a separate series issued under the Indenture (or
a trust indenture substantially identical to the Indenture in accordance with
the terms of the Registration Rights Agreement) which have been registered under
the Securities Act, in like principal amount and having substantially identical
terms as the Notes. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
10. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay to it any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Notes or portion of a Note selected for
redemption, or register the transfer of or exchange any Notes for a period of 15
days before a mailing of notice of redemption.
11. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent shall pay
the money back to the Issuer at its written request. After that, Holders
entitled to the money must look to the Issuer for payment as general creditors
unless an "abandoned property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Issuer, any Guarantors
and the Trustee may, without the consent of the Holders of any outstanding
Notes, amend, waive or supplement the Indenture, the Collateral Documents, the
Parent Subordination Agreement, the Intercreditor Agreements, the Notes, and
certain related documents for certain specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies, maintaining the
qualification of the Indenture under the Act and making any change that does not
materially and adversely affect the rights of any Holder. Other amendments and
modifications of these agreements may be made by the Issuer, any Guarantors and
the Trustee with the consent of the Holders of not less than a majority of the
aggregate principal amount of the outstanding Notes, subject to certain
exceptions requiring the consent of all of the Holders of the particular Notes
to be affected.
A-1-6
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Issuer, the Guarantors and their Restricted Subsidiaries
to, among other things, incur additional Indebtedness, make payments in respect
of their Equity Interests or certain Indebtedness, make certain Investments,
create or incur liens, engage in certain activities, enter into transactions
with Affiliates, enter into agreements restricting the ability of Restricted
Subsidiaries to pay dividends and make distributions, issue Equity Interests of
any Restricted Subsidiaries, merge or consolidate with any other Person or
transfer assets. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.04 of the Indenture, the
Issuer must annually report to the Trustee on compliance with such limitations.
15. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Notes, the Indenture and, if
applicable, the Collateral Documents and the transaction complies with the terms
of the Indenture, the predecessor corporation shall, except as provided in the
Indenture, be released from those obligations.
16. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default occurs and is continuing, the Trustee or the holders of at least 25% in
principal amount of the outstanding Notes may declare the principal of and
accrued but unpaid interest on all the Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Issuer, any Finco Guarantor, Parent or the Company occurs
and is continuing, the principal of and interest on all the Notes will ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any holders of the Notes. If an Event of
Default exists solely by reason of an acceleration of Indebtedness under clause
(6) of Section 6.01 of the Indenture and such acceleration is rescinded by the
holders of such Indebtedness prior to the time the Notes have been accelerated,
such Event of Default shall cease to exist. Under certain circumstances, the
holders of a majority in principal amount of the outstanding Notes may rescind
any such acceleration with respect to the Notes and its consequences. Holders
may not enforce the Indenture, the Collateral Documents or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture, the Collateral Documents or the Notes. Subject
to certain restrictions, the holders of a majority in principal amount of the
outstanding Notes are given the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. Except in the case of a
Default in the payment of principal of or interest on any Note, the Trustee may
withhold notice if and so long as a committee of its trust officers determines
that withholding notice is not opposed to the interest of the holders of the
Notes.
17. Trustee Dealings with Issuer. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuer or its Affiliates, and may otherwise deal with the
Issuer or its Affiliates, as if it were not Trustee.
A-1-7
18. No Recourse Against Others. No past, present or future director,
officer, employee, partner, incorporator or shareholder, of the Issuer or any
Guarantor or any corporate successor thereto shall have any liability for any
obligations of the Issuer under the Notes, the Note Guarantees, the Collateral
Documents, the Indenture or for a claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
19. Discharge. The Issuer's obligations pursuant to the Indenture
shall be discharged, except for obligations pursuant to certain sections
thereof, subject to the terms of the Indenture, upon the payment of all the
Notes.
20. Note Guarantees. The Note is entitled to the benefits of certain
Note Guarantees made for the benefit of the Holders. Reference is hereby made to
the Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
21. Authentication. This Note shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Note.
22. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuers and the Guarantors agree to submit to the jurisdiction
of the courts of the State of New York in any action or proceeding arising out
of or relating to the Indenture or the Notes.
23. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A-1-8
The Issuer shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
If to the Issuer or any Guarantor, to it c/o:
Ispat Inland ULC
3210 Watling Street
East Chicago, IN 46312
Fax Number: (219) 399-5544
Attention: Chief Financial Officer
A-1-9
EXHIBIT A-2
CUSIP
ISPAT INLAND ULC
No. $
9-3/4% SENIOR SECURED NOTE DUE 2014
ISPAT INLAND ULC, an unlimited liability company incorporated under
the laws of Nova Scotia, Canada (the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
promises to pay to CEDE & CO. or registered assigns the principal sum of [ ]
DOLLARS ($[ ]) on April 1, 2014 at the office or agency of the Issuer referred
to below.
Interest Payment Dates: April 1 and October 1.
Record Dates: March 15 and September 15.
Reference is made to the further provisions of this Note contained
herein, which shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
ISPAT INLAND ULC
By: ________________________________
Name:
Title:
By: _________________________________
Name:
Title:
A-2-1
Dated:
A-2-2
Certificate of Authentication
This is one of the 9-3/4% Senior Secured Notes due 2014 referred to
in the within-mentioned Indenture.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: ________________________________
Name:
Title:
Dated:
A-2-3
[FORM OF REVERSE OF NOTE]
Ispat Inland ULC
9-3/4% SENIOR SECURED NOTE DUE 2014
1. Interest. ISPAT INLAND ULC, an unlimited liability company
incorporated under the laws of Nova Scotia, Canada (the "Issuer"), promises to
pay, until the principal hereof is paid or made available for payment, interest
on the principal amount set forth on the face hereof at a rate of 9-3/4% per
annum. Interest hereon will accrue from the date of original issuance or, if
interest has already been paid, from the date it was most recently paid.
Interest on the Notes will be payable semiannually in arrears on April 1 and
October 1, commencing on October 1, 2004, to the holders of record on the
immediately preceding March 15 and September 15.
Interest will be computed on the basis of a 360-day year comprised
of twelve 30-day months.
The Issuer will pay interest on overdue principal at 1% per annum in
excess of the above rate and will pay interest on overdue installments of
interest at such higher rate, in each case, to the extent lawful.
2. Method of Payment. The Issuer shall pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the March 15 and September 15 next preceding the interest payment
date (whether or not a Business Day). Holders must surrender Notes to a Paying
Agent to collect principal payments. The Issuer shall pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Interest may be paid by check
mailed to the Holder entitled thereto at the address indicated on the register
maintained by the Registrar for the Notes.
3. Paying Agent, Registrar and Calculation Agent. Initially, LaSalle
Bank National Association (the "Trustee") shall act as a Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar without notice.
The Issuer or any of its Affiliates may act as Paying Agent or Registrar.
4. Indenture. This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its 9-3/4% Senior Secured Notes due 2014 (herein
called the "Fixed Rate Notes," and together with the Floating Rate Notes (as
defined in the Indenture, the "Notes")). The Issuer issued the Notes under an
Indenture dated as of March 25, 2004 (the "Indenture") among the Issuer, the
Guarantors and the Trustee. This is one of an issue of Notes of the Issuer
issued, or to be issued, under the Indenture. The terms of the Notes include
those stated
A-2-4
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the
date of the Indenture (the "Act"). The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Act for a statement of them. To
the extent any provision of this Note conflicts with the express provisions of
the Indenture, the provisions of the Indenture shall govern and be controlling.
Capitalized and certain other terms used herein and not otherwise defined have
the meanings set forth in the Indenture.
5. Optional Redemption. The Fixed Rate Notes may be redeemed at the
Issuer's option to the extent and at the prices set forth in Article Three of
the Indenture.
6. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Issuer defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption,
unless the Issuer shall fail to redeem any Notes.
7. Offers to Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Disposition and subject to further
limitations contained therein, the Issuer shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
8. Security; Intercreditor Agreements. The Company, the Issuer and
the Finco Guarantors have granted Liens on certain of their assets to the
Trustee pursuant to the Collateral Documents. The Trustee has entered into
certain Intercreditor Agreements on behalf of itself and the Holders of Notes.
9. Registration Rights. Pursuant to the Registration Rights
Agreement, the Issuer and the Guarantors shall be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for notes of a separate series issued under the Indenture (or
a trust indenture substantially identical to the Indenture in accordance with
the terms of the Registration Rights Agreement) which have been registered under
the Securities Act, in like principal amount and having substantially identical
terms as the Notes. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
10. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes or portion of a Note selected
for
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redemption, or register the transfer of or exchange any Notes for a period of 15
days before a mailing of notice of redemption.
11. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent shall pay
the money back to the Issuer at its written request. After that, Holders
entitled to the money must look to the Issuer for payment as general creditors
unless an "abandoned property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Issuer, any Guarantors
and the Trustee may, without the consent of the Holders of any outstanding
Notes, amend, waive or supplement the Indenture, the Collateral Documents, the
Parent Subordination Agreement, the Intercreditor Agreements, the Notes, and
certain related documents for certain specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies, maintaining the
qualification of the Indenture under the Act and making any change that does not
materially and adversely affect the rights of any Holder. Other amendments and
modifications of these agreements may be made by the Issuer, any Guarantors and
the Trustee with the consent of the Holders of not less than a majority of the
aggregate principal amount of the outstanding Notes, subject to certain
exceptions requiring the consent of all of the Holders of the particular Notes
to be affected.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Issuer, the Guarantors and their Restricted Subsidiaries
to, among other things, incur additional Indebtedness, make payments in respect
of their Equity Interests or certain Indebtedness, make certain Investments,
create or incur liens, engage in certain activities, enter into transactions
with Affiliates, enter into agreements restricting the ability of Restricted
Subsidiaries to pay dividends and make distributions, issue Equity Interests of
any Restricted Subsidiaries, merge or consolidate with any other Person or
transfer assets. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.04 of the Indenture, the
Issuer must annually report to the Trustee on compliance with such limitations.
15. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Notes, the Indenture and, if
applicable, the Collateral Documents and the transaction complies with the terms
of the Indenture, the predecessor corporation shall, except as provided in the
Indenture, be released from those obligations.
16. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default occurs and is continuing, the Trustee or the holders of at least 25% in
principal amount of the outstanding Notes may declare the principal of and
accrued but unpaid interest on all the Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable
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immediately. If an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Issuer, any Finco Guarantor, Parent or the
Company occurs and is continuing, the principal of and interest on all the Notes
will ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any holders of the Notes.
If an Event of Default exists solely by reason of an acceleration of
Indebtedness under clause (6) of Section 6.01 of the Indenture, and such
acceleration is rescinded by the holders of such Indebtedness prior to the time
the Notes have been accelerated, such Event of Default shall cease to exist.
Under certain circumstances, the holders of a majority in principal amount of
the outstanding Notes may rescind any such acceleration with respect to the
Notes and its consequences. Holders may not enforce the Indenture, the
Collateral Documents or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture, the Collateral Documents or the Notes. Subject to certain
restrictions, the holders of a majority in principal amount of the outstanding
Notes are given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. Except in the case of a Default in the payment
of principal of or interest on any Note, the Trustee may withhold notice if and
so long as a committee of its trust officers determines that withholding notice
is not opposed to the interest of the holders of the Notes.
17. Trustee Dealings with Issuer. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuer or its Affiliates, and may otherwise deal with the
Issuer or its Affiliates, as if it were not Trustee.
18. No Recourse Against Others. No past, present or future director,
officer, employee, partner, incorporator or shareholder, of the Issuer or any
Guarantor or any corporate successor thereto shall have any liability for any
obligations of the Issuer under the Notes, the Note Guarantees, the Collateral
Documents, the Indenture or for a claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
19. Discharge. The Issuer's obligations pursuant to the Indenture
shall be discharged, except for obligations pursuant to certain sections
thereof, subject to the terms of the Indenture, upon the payment of all the
Notes.
20. Note Guarantees. The Note is entitled to the benefits of certain
Note Guarantees made for the benefit of the Holders. Reference is hereby made to
the Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
21. Authentication. This Note shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Note.
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22. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer and the Guarantors agree to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to the Indenture or the Notes.
23. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Issuer shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
If to the Issuer or any Guarantor to it, c/o:
Ispat Inland ULC
3210 Watling Street
East Chicago, IN 46312
Fax Number: (219) 399-5544
Attention: Chief Financial Officer
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[FORM OF ASSIGNMENT FOR UNRESTRICTED NOTES]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
Date: _________________ Your Signature:__________________________
(Sign exactly as your name
appears on the other side
of this Note)
________________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature
guarantor acceptable to the Trustee)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, check
the appropriate box:
[ ] Section 4.10 [ ] Section 4.14
If you want to have only part of the Note purchased by the Issuer
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$ ______________________
(multiple of $1,000)
Date: _________________
Your Signature:______________________________
(Sign exactly as your name
appears on the face of this
Note)
________________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature
guarantor acceptable to the Trustee)
A-2-10
EXHIBIT B
[FORM OF PRIVATE PLACEMENT LEGEND]
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
SECURITIES ACT OF 1933, AND THE SECURITY EVIDENCED BY THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR AN APPLICABLE EXEMPTION FROM THE SECURITIES ACT. EACH PURCHASER
OF THE SECURITY EVIDENCED BY THIS CERTIFICATE (1) BY ITS ACQUISITION OF THE
SECURITY REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THE SECURITY EVIDENCED BY THIS CERTIFICATE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT AND (2) IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR ANOTHER EXEMPTION UNDER
THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED BY THIS CERTIFICATE
AGREES FOR THE BENEFIT OF THE COMPANY THAT (X) THIS SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, IF AVAILABLE, (C) OUTSIDE THE UNITED STATES TO A PERSON THAT IS
NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS
PURCHASING AT LEAST $100,000 OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
AN INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (3)
UNDER AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN COMPLIANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED BY THIS
CERTIFICATE OF THE RESALE RESTRICTIONS DESCRIBED IN (X) ABOVE. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE
B-1
PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT."
B-2
[FORM OF ASSIGNMENT FOR RESTRICTED NOTES]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_______________________________________________________________________________
_______________________________________________________________________________
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
In connection with any transfer of this Note occurring prior to the date which
is the earlier of (i) the date the Shelf Registration Statement is declared
effective or (ii) the end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) This Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) This Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If neither of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: _________________ Your Signature: ________________________________
(Sign exactly as your name
appears on the face of this Note)
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________________________
Signature Guaranteed
(Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature
guarantor acceptable to the Trustee)
B-4
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:_________________ ____________________________________
NOTICE: To be executed by
an executive officer
B-5
EXHIBIT C
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE TO A NOMINEE OF THE DEPOSITORY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
__________, _________
LaSalle Bank National Association
c/o Ispat Inland ULC
135 S. LaSalle, Suite 1960
Chicago, IL 60603
Attention: Corporate Trust Services Division
Dear Sirs:
In connection with our proposed purchase of $ ______ aggregate
principal amount of the [Senior Secured Floating Rate/9-3/4% Senior Secured]
Notes due 20__, (the "Notes") of Ispat Inland ULC (the "Issuer") we confirm
that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of March 25, 2004 relating to the Notes and we agree to be bound
by, and not to resell, pledge or otherwise transfer the Notes except in
compliance with such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act"), and all applicable state
securities laws.
2. We understand that the Notes have not been registered under the
Securities Act or any other applicable securities laws and that the Notes
may not be offered, sold, pledged or otherwise transferred except as
permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that
if we should sell any Notes within the time period referred to in Rule
144(k) of the Securities Act, we shall do so only (i) to the Issuer or any
subsidiary thereof, (ii) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined in Rule 144A), (iii)
to an institutional "accredited investor" (as defined below) that, prior
to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter substantially in the form of this
letter and, at your request, an opinion of counsel acceptable to you and
the Issuer that such transfer is in compliance with the Securities Act,
(iv) outside the United States to persons other than U.S. persons in
offshore transactions meeting the requirements of Rule 904 of Regulation S
under the Securities Act, (v) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if applicable) or (vi)
pursuant to an effective registration statement, and we further agree to
D-1
provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated
herein.
3. We understand that, on any proposed resale of any Notes, we shall
be required to furnish to you and the Issuer such certifications, legal
opinions and other information as you and the Issuer may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us shall
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting each are able to
bear the economic risk of our or its investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By: _______________________________
D-2
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_________, ________
LaSalle Bank National Association
c/o Ispat Inland ULC
135 S. LaSalle, Suite 1960
Chicago, IL 60603
Attention: Corporate Trust Services Division
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the [Senior Secured Floating Rate/9-3/4% Senior Secured]
Notes due 20__, (the "Notes") of Ispat Inland ULC (the "Issuer"), we confirm
that such sale has been effected pursuant to and in accordance with Regulation S
under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or to a
person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
E-1
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Issuer are each entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ________________________________
E-2
EXHIBIT F
[FORM OF NOTE GUARANTEE]
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of March 25, 2004, by and between Ispat Inland ULC, as issuer, the
Guarantors and LaSalle Bank National Association, as Trustee (as amended,
restated or supplemented from time to time, the "Indenture"), and subject to the
provisions of the Indenture, (a) the due and punctual payment of the principal
of, and premium, if any, and interest on the Notes, when and as the same shall
become due and payable, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on overdue principal of, and premium and,
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee, all in
accordance with the terms set forth in Article Ten of the Indenture, and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders and to the Trustee
pursuant to this Note Guarantee and the Indenture are expressly set forth in
Article Ten of the Indenture and reference is hereby made to the Indenture for
the precise terms and limitations of this Note Guarantee.
[Signatures on Following Pages]
F-1
IN WITNESS WHEREOF, each of the Guarantors has caused this Note
Guarantee to be signed by a duly authorized officer.
THE GUARANTORS:
[GUARANTORS]
Dated:
F-2