EXHIBIT 10.4
PLEDGE AGREEMENT (this "Agreement")
dated as of March 25, 2004, among ISPAT
INLAND ULC, a Nova Scotia unlimited
liability company (the "Issuer"), ISPAT
INLAND, L.P., a Delaware limited
partnership, 3019693 NOVA SCOTIA U.L.C., a
Nova Scotia unlimited liability company, and
ISPAT INLAND FINANCE, LLC, a Delaware
limited liability company (Ispat Inland
Finance LLC, Ispat Inland, L.P. and 3019693
Nova Scotia U.L.C. are referred to
collectively herein as the "Guarantors" and
individually, as a "Guarantors"; the Issuer
and the Guarantors are referred to
collectively herein as the "Pledgors" and
individually, as a "Pledgor") and LASALLE
BANK NATIONAL ASSOCIATION, as Trustee (in
such capacity, the "Trustee") for the
Secured Parties (as defined below).
Reference is made to the Indenture dated as the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Indenture"), among
the Issuer, the Guarantors, the other guarantors from time to time party
thereto, and the Trustee.
Pursuant to the Indenture, the Issuer has issued its Senior Secured
Floating Rate Notes due 2010 in the aggregate principal amount of $150,000,000
and 9 3/4% Senior Secured Notes due 2014 in the aggregate principal amount of
$650,000,000 (collectively, the "Notes"). The Guarantors have agreed to
guarantee, among other things, all the obligations of the Issuer under the
Indenture. The obligations of the purchasers of the Notes to purchase the Notes
are conditioned upon, among other things, the execution and delivery by the
Pledgors of a Pledge Agreement in the form hereof to secure (a) the due and
punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding) on the Notes, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding), of the Issuer
to the Secured Parties under the Indenture and the Notes and other documents
executed in connection with the Indenture (collectively, the "Indenture
Documents"), and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the other Parties under or pursuant
to the Indenture and the other Indenture Documents (all the monetary and other
obligations referred to in the preceding clauses (a) and (b) being referred to
collectively as the "Obligations"). "Secured Parties" as used herein and in the
other Indenture Documents shall mean the holders from time to time of the Notes,
the Trustee, and the successors and assigns of each of the foregoing.
Capitalized terms used herein and not defined herein shall have meanings
assigned to such terms in the Indenture.
Accordingly, the Pledgors and the Trustee, on behalf of itself and each
Secured Party (and each of their respective successors or assigns), hereby agree
as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Pledgor hereby pledges unto the
Trustee, its successors and assigns, and hereby grants to the Trustee, its
successors and assigns, for the ratable benefit of the Secured Parties, a
security interest in all of such Pledgor's right, title and interest in, to and
under (a) the shares of capital stock owned by it and listed on Schedule II
hereto and any shares of capital stock of the Issuer or any Subsidiary obtained
in the future by such Pledgor and the certificates representing all such shares
(the "Pledged Stock"); (b) all indebtedness held by such Pledgor, including (i)
the debt securities listed opposite the name of such Pledgor on Schedule II
hereto, including the First Mortgage Bonds, the Finco Mirror Note and any
Company Note, (ii) any indebtedness in the future issued to such Pledgor and
(iii) the promissory notes and any other instruments evidencing such
indebtedness, but excluding the Bonds, Series X, outstanding on the Issue Date
that are pledged on the Issue Date to the PBGC, (the "Pledged Debt Securities");
(c) all other property that may be delivered to and held by the Trustee pursuant
to the terms hereof; (d) subject to Section 5, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed, in respect of, in exchange for or
upon the conversion of the securities referred to in clauses (a) and (b) above;
(e) subject to Section 5, all rights and privileges of the Pledgor with respect
to the securities and other property referred to in clauses (a), (b), (c) and
(d) above; and (f) all proceeds of any of the foregoing (the items referred to
in clauses (a) through (f) above being collectively referred to as the
"Collateral"). Upon delivery to the Trustee, (a) any stock certificates, notes
or other securities now or hereafter included in the Collateral (the "Pledged
Securities") shall be accompanied by stock or bond powers duly executed in blank
or other instruments of transfer satisfactory to the Trustee, including, in
connection with the First Mortgage Bonds, the power of attorney in the form of
Exhibit A hereto and the instrument of transfer in the form of Exhibit B hereto,
and by such other instruments and documents as the Trustee may reasonably
request and (b) all other property comprising part of the Collateral shall be
accompanied by proper instruments of assignment duly executed by the applicable
Pledgor and such other instruments or documents as the Trustee may reasonably
request. Each delivery of Pledged Securities shall be accompanied by a schedule
describing the securities theretofore and then being pledged hereunder, which
schedule shall be attached hereto as Schedule II and made a part hereof. Each
schedule so delivered shall supersede any prior schedules so delivered.
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Trustee, its successors and assigns, for the ratable benefit of the
Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly to
deliver or cause to be delivered to the Trustee any and all Pledged Securities,
and any and all certificates or other instruments or documents representing the
Collateral.
(b) Each Pledgor will cause any Indebtedness for borrowed money owed
to such Pledgor by any person to be evidenced by a duly executed
promissory note that is pledged and delivered to the Trustee pursuant to
the terms hereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor hereby
represents, warrants and covenants, as to itself and the Collateral pledged by
it hereunder, to and with the Trustee that:
(a) such Pledgor does not hold, own or have any security interest in
any certificated securities or uncertificated securities other than those
set forth on Schedule II and the Bonds outstanding on the Issue Date that
are pledged on the Issue Date to the PBGC;
(b) the Pledged Stock represents that percentage as set forth on
Schedule II of the issued and outstanding shares of each class of the
capital stock of the issuer with respect thereto;
(c) except for the security interest granted hereunder, the Pledgor
(i) is and will at all times (except as permitted by the Indenture)
continue to be the direct owner, beneficially and of record, of the
Pledged Securities indicated on Schedule II, (ii) holds the same free and
clear of all Liens, (iii) will make no assignment, pledge, hypothecation
or transfer of, or create or permit to exist any security interest in or
other Lien on, the Collateral, other than pursuant hereto, and (iv)
subject to Section 5, will cause any and all certificates and instruments
representing Collateral, whether for value paid by the Pledgor or
otherwise, to be forthwith deposited with the Trustee and pledged or
assigned hereunder;
(d) the Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend
its title or interest thereto or therein against any and all Liens (other
than the Lien created by this Agreement, Permitted First Mortgage Bonds
Collateral Liens and Permitted Liens), however arising, of all persons
whomsoever;
(e) no consent of any other person (including stockholders, members
or creditors of any Pledgor) and no consent or approval of any
Governmental Authority or any securities exchange was or is necessary to
the validity of the pledge effected hereby;
(f) by virtue of the execution and delivery by the Pledgors of this
Agreement, upon the delivery of the Pledged Securities, certificates or
other documents representing or evidencing the Collateral to the Trustee
in accordance with this Agreement, and the filing of the Uniform
Commercial Code financing statements and other filings listed in Schedule
III, the Trustee will obtain a valid and perfected lien upon and security
interest in the Collateral as security for the payment and performance of
the Obligations subject to no Liens other than Permitted First Mortgage
Bonds Collateral Liens and Permitted Liens;
(g) all of the Pledged Stock has been duly authorized and validly
issued and is fully paid and nonassessable, except that shares of a Nova
Scotia unlimited liability company (an "Unlimited Liability Company") may
be assessable in accordance with applicable law;
(h) all information set forth herein relating to the Pledged Stock
is accurate and complete in all material respects as of the date hereof;
and
(i) the pledge of the Pledged Stock pursuant to this Agreement does
not violate Regulation T, U or X of the Federal Reserve Board or any
successor thereto as of the date hereof.
Ispat Inland Finance, LLC hereby represents, warrants and covenants,
as to itself and the Collateral pledged by it hereunder, to and with the Trustee
that it has delivered to the Trustee all instruments and documents necessary to
enable the Trustee to become the registered holder of the First Mortgage Bonds
pursuant to Article One, Section 3 of the First Mortgage Bonds Indenture.
SECTION 4. Registration in Nominee Name; Denominations. Except for shares
of any Unlimited Liability Company (which shall be delivered to the Trustee with
an endorsement in blank), the Trustee, on behalf of the Secured Parties, shall
have the right (in its sole and absolute discretion) to hold the Pledged
Securities in its own name as pledgee, the name of its nominee (as pledgee or as
sub-agent) or the name of the Pledgors, endorsed or assigned in blank or in
favor of the Trustee. Upon the occurrence of a Default, the Trustee shall have
the right to register the First Mortgage Bonds in its own name and each Pledgor
shall do such further acts and things, and execute and deliver such additional
instruments, as the Trustee may request to effect such registration. Each
Pledgor will promptly give to the Trustee copies of any notices or other
communications received by it with respect to Pledged Securities registered in
the name of such Pledgor. The Trustee shall at all times have the right to
exchange the certificates representing Pledged Securities for certificates of
smaller or larger denominations for any purpose consistent with this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing, and with
respect to all Pledged Securities other than the First Mortgage Bonds and shares
of any Unlimited Liability Company :
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms of this
Agreement, the Indenture and the other Indenture Documents; provided, however,
that such Pledgor will not be entitled to exercise any such right if the result
thereof could materially and adversely affect the rights inuring to a holder of
the Pledged Securities or the rights and remedies of any of the Secured Parties
under this Agreement or the Indenture or any other Indenture Document or the
ability of the Secured Parties to exercise the same.
(ii) The Trustee shall execute and deliver to each Pledgor, or cause
to be executed and delivered to each Pledgor, all such proxies, powers of
attorney and other instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to exercise the voting and/or consensual rights
and powers it is entitled to exercise pursuant to subparagraph (i) above and to
receive the interest and cash dividends it is entitled to receive pursuant to
subparagraph (iii) below.
(iii) Each Pledgor shall be entitled to receive and retain any and
all cash dividends, distributions, interest and principal paid on the Pledged
Securities to the extent and only to the extent that such cash dividends,
distributions, interest and principal are permitted by, and
otherwise paid in accordance with, the terms and conditions of the Indenture,
the other Indenture Documents and applicable laws. All noncash dividends,
interest and principal, and all dividends, distributions, interest and principal
paid or payable in cash or otherwise in connection with a partial or total
liquidation or dissolution, return of capital, capital surplus or paid-in
surplus, and all other distributions (other than distributions referred to in
the immediately preceding sentence) made on or in respect of the Pledged
Securities and all distributions made on or in respect of the First Mortgage
Bonds, whether paid or payable in cash or otherwise, whether resulting from a
subdivision, combination or reclassification of the outstanding capital stock of
the issuer of any Pledged Securities or received in exchange for Pledged
Securities or any part thereof, or in redemption thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the Collateral,
and, if received by any Pledgor, shall not be commingled by such Pledgor with
any of its other funds or property but shall be held separate and apart
therefrom, shall be held in trust for the benefit of the Trustee and shall be
forthwith delivered to the Trustee in the same form as so received (with any
necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Pledgor to dividends, distributions, interest or principal
that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) above
shall cease, and all such rights shall thereupon become vested in the Trustee,
which shall have the sole and exclusive right and authority to receive and
retain such dividends, distributions, interest or principal. All dividends,
distributions, interest or principal received by the Pledgor contrary to the
provisions of this Section 5 shall be held in trust for the benefit of the
Trustee, shall be segregated from other property or funds of such Pledgor and
shall be forthwith delivered to the Trustee upon demand in the same form as so
received (with any necessary endorsement). Any and all money and other property
paid over to or received by the Trustee pursuant to the provisions of this
paragraph (b) shall be retained by the Trustee in an account to be established
by the Trustee upon receipt of such money or other property and shall be applied
in accordance with the provisions of Section 7. After all Events of Default have
been cured or waived, the Trustee shall, within five Business Days after all
such Events of Default have been cured or waived, repay to each Pledgor all cash
dividends, distributions, interest or principal (without interest), that such
Pledgor would otherwise be permitted to retain pursuant to the terms of
paragraph (a)(iii) above and which remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Pledgor to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section
5, and the obligations of the Trustee under paragraph (a)(ii) of this Section 5,
shall cease, and all such rights shall thereupon become vested in the Trustee,
which shall have the sole and exclusive right and authority to exercise such
voting and consensual rights and powers, provided that, unless otherwise
directed by the holders of Notes in accordance with the provisions of the
Indenture, the Trustee shall have the right from time to time following and
during the continuance of an Event of Default to permit the Pledgors to exercise
such rights. After all Events of Default have been cured or waived, such Pledgor
will have the right to exercise the voting and consensual rights and powers that
it would otherwise be entitled to exercise pursuant to the terms of paragraph
(a)(i) above.
(d) No Pledgor shall exercise any voting rights with respect to the First
Mortgage Bonds, unless the holders of a majority in aggregate principal amount
of the Notes outstanding have consented thereto.
(e) Notwithstanding the foregoing, paragraphs (a) though (d) of this
Section 5 shall not apply to any shares of an Unlimited Liability Company. For
the avoidance of doubt, the Pledgors shall be entitled with respect to any
Unlimited Liability Company, to exercise any voting rights (other than any such
rights that are adverse to the holders of Notes) and receive and retain any and
all cash dividends, distributions, interest and principal paid on the Pledged
Securities to the extent and only to the extent that such cash dividends,
distributions, interest and principal are permitted by, and otherwise paid in
accordance with, the terms and conditions of the Indenture, the other Indenture
Documents and applicable laws. All noncash dividends, interest and principal,
and all dividends, distributions, interest and principal paid or payable in cash
or otherwise in connection with a partial or total liquidation or dissolution,
return of capital, capital surplus or paid-in surplus, and all other
distributions (other than distributions referred to in the immediately preceding
sentence) made on or in respect of the Pledged Securities of an Unlimited
Liability Company, whether paid or payable in cash or otherwise, whether
resulting from a subdivision, combination or reclassification of the outstanding
capital stock of the issuer of any Pledged Securities of an Unlimited Liability
Company or received in exchange for Pledged Securities of an Unlimited Liability
Company or any part thereof, or in redemption thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the Collateral,
and, if received by any Pledgor, shall be forthwith delivered to the Trustee in
the same form as so received (with any necessary endorsement).
SECTION 6. Remedies upon Default. Upon the occurrence and during the
continuance of any Event of Default the Trustee may from time to time exercise
in respect of the Collateral, in addition to the other rights and remedies
provided for herein or otherwise available to it, the following remedies:
(a) Upon the occurrence and during the continuance of an Event of Default,
subject to applicable regulatory and legal requirements, the Trustee may demand,
sue for, collect or receive any money or property at any time payable or
receivable in respect of the Collateral including instructing the obligor or
obligors on any agreement, instrument or other obligation constituting part of
the Collateral to make any payment required by the terms of such agreement,
instrument or other obligation directly to the Trustee, and in connection with
any of the foregoing, compromise, settle, extend the time for payment and make
other modifications with respect thereto; provided, however, that in the event
that any such payments are made directly to any Pledgor, prior to receipt by any
such obligor of such instruction, such Pledgor shall segregate all amounts
received pursuant thereto in trust for the benefit of the Trustee and shall
promptly (but in no event later than one (1) Business Day after receipt thereof)
pay such amounts to the Trustee.
(b) Upon the occurrence and during the continuance of an Event of Default,
subject to applicable regulatory and legal requirements, the Trustee may sell
the Collateral, or any part thereof, at public or private sale or at any
broker's board or on any securities exchange, for cash, upon credit or for
future delivery as the Trustee shall deem appropriate. The Trustee shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or
purchasers to persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the Trustee
shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Collateral so sold. Each such purchaser at any such sale
shall hold the property sold absolutely free from any claim or right on the part
of any Pledgor, and, to the extent permitted by applicable law, the Pledgors
hereby waive all rights of redemption, stay, valuation and appraisal any Pledgor
now has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted.
The Trustee shall give a Pledgor 10 days' prior written notice (which each
Pledgor agrees is reasonable notice within the meaning of Section 9-611(b) of
the Uniform Commercial Code as in effect in the State of New York or its
equivalent in other jurisdictions) of the Trustee's intention to make any sale
of such Pledgor's Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Collateral, or portion thereof,
will first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Trustee may fix and state in the notice of such sale. At
any such sale, the Collateral, or portion thereof, to be sold may be sold in one
lot as an entirety or in separate parcels, as the Trustee may (in its sole and
absolute discretion) determine. The Trustee shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The Trustee
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or for future delivery, the Collateral
so sold may be retained by the Trustee until the sale price is paid in full by
the purchaser or purchasers thereof, but the Trustee shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and pay
for the Collateral so sold and, in case of any such failure, such Collateral may
be sold again upon like notice. At any public (or, to the extent permitted by
applicable law, private) sale made pursuant to this Section 6, any Secured Party
may bid for or purchase, free from any right of redemption, stay or appraisal on
the part of any Pledgor (all said rights being also hereby waived and released),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any claim then due and payable to it from such Pledgor
as a credit against the purchase price, and it may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to such Pledgor therefor. As an alternative to exercising the
power of sale herein conferred upon it, the Trustee may proceed by a suit or
suits at law or in equity to foreclose upon the Collateral and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this Section 6
shall be deemed to conform to the commercially reasonable standards as provided
in Section 9-610(b) of the Uniform Commercial Code as in effect in the State of
New York or its equivalent in other jurisdictions.
SECTION 7. Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 6, as well as any Collateral consisting of cash,
shall be applied by the Trustee as follows:
FIRST, to the payment of all reasonable costs and expenses incurred
by the Trustee in connection with such sale or otherwise in connection
with this Agreement, the Indenture, any other Indenture Document or any of
the Obligations, including all court costs and the reasonable fees and
expenses of its agents and legal counsel, and any other costs or expenses
incurred in connection with the exercise of any right or remedy hereunder
or under any other Indenture Document and all other fees and amounts then
payable to the Trustee under the Indenture and this Agreement;
SECOND, to the payment in full of all unpaid principal amount of the
Notes, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for principal;
THIRD, to the payment in full of all unpaid premium, if any, and
accrued interest on the Notes and other Obligations ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for premium, interest and other Obligations; and
FOURTH, to the Pledgors, their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
Upon any sale of the Collateral by the Trustee (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt of
the purchase money by the Trustee or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Trustee or such
officer or be answerable in any way for the misapplication thereof.
SECTION 8. Reimbursement of Trustee. (a) Each Pledgor agrees to pay upon
demand to the Trustee the amount of any and all reasonable expenses, including
the reasonable fees, other charges and disbursements of its counsel and of any
experts or agents, that the Trustee may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of the Trustee hereunder
or (iv) the failure by such Pledgor to perform or observe any of the provisions
hereof.
(b) Without limitation of its indemnification obligations under the other
Indenture Documents, each Pledgor agrees to indemnify the Trustee, each Holder
and their respective affiliates, directors, officers, employees, attorneys and
agents (each such person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, other charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Indenture Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations thereunder or the consummation of transactions
contemplated thereby or (ii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, li-
abilities or related expenses have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby. The provisions of this Section 8 shall remain
operative and in full force and effect regardless of the termination of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Indenture Document or any
investigation made by or on behalf of the Trustee or any other Secured Party.
All amounts due under this Section 8 shall be payable on written demand therefor
and shall bear interest at the rate specified in the Notes.
SECTION 9. Trustee Appointed Attorney-in-Fact. Each Pledgor hereby
appoints the Trustee the attorney-in-fact of such Pledgor for the purpose of
carrying out the provisions of this Agreement upon the occurrence and during the
continuance of an Event of Default and taking any action and executing any
instrument that the Trustee may deem necessary or advisable to accomplish the
purposes hereof upon the occurrence and during the continuance of an Event of
Default, which appointment is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, the Trustee shall have the right, upon
the occurrence and during the continuance of an Event of Default, with full
power of substitution either in the Trustee's name or in the name of such
Pledgor, to ask for, demand, sue for, collect, receive and give acquittance for
any and all moneys due or to become due under and by virtue of any Collateral,
to endorse checks, drafts, orders and other instruments for the payment of money
payable to the Pledgor representing any interest or dividend or other
distribution payable in respect of the Collateral or any part thereof or on
account thereof and to give full discharge for the same, to settle, compromise,
prosecute or defend any action, claim or proceeding with respect thereto, and to
sell, assign, endorse, pledge, transfer and to make any agreement respecting, or
otherwise deal with, the same; provided, however, that nothing herein contained
shall be construed as requiring or obligating the Trustee to make any commitment
or to make any inquiry as to the nature or sufficiency of any payment received
by the Trustee, or to present or file any claim or notice, or to take any action
with respect to the Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby. The Trustee and
the other Secured Parties shall be accountable only for amounts actually
received as a result of the exercise of the powers granted to them herein, and
neither they nor their officers, directors, employees or agents shall be
responsible to any Pledgor for any act or failure to act hereunder, except for
their own gross negligence, bad faith or willful misconduct.
SECTION 10. Waivers; Amendment. (a) No failure or delay of the Trustee in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Trustee hereunder and of the
other Secured Parties under the other Indenture Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provisions of this Agreement or consent to any departure by any
Pledgor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Pledgor
in any case shall entitle such Pledgor to any other or further notice or demand
in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Trustee and the Pledgor or Pledgors with respect to which such waiver, amendment
or modification is to apply, subject to any consent required in accordance with
Section 8.02 of the Indenture.
SECTION 11. Securities Act, etc. In view of the position of the Pledgors
in relation to the Pledged Securities, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Trustee if the Trustee were to attempt to
dispose of all or any part of the Pledged Securities, and might also limit the
extent to which or the manner in which any subsequent transferee of any Pledged
Securities could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Trustee in any attempt to dispose of
all or part of the Pledged Securities under applicable Blue Sky or other state
securities laws or similar laws analogous in purpose or effect. Each Pledgor
recognizes that in light of such restrictions and limitations the Trustee may,
with respect to any sale of the Pledged Securities, limit the purchasers to
those who will agree, among other things, to acquire such Pledged Securities for
their own account, for investment, and not with a view to the distribution or
resale thereof. Each Pledgor acknowledges and agrees that in light of such
restrictions and limitations, the Trustee, in its sole and absolute discretion,
(a) may proceed to make such a sale whether or not a registration statement for
the purpose of registering such Pledged Securities or part thereof shall have
been filed under the Federal Securities Laws and (b) may approach and negotiate
with a single potential purchaser to effect such sale. Each Pledgor acknowledges
and agrees that any such sale might result in prices and other terms less
favorable to the seller than if such sale were a public sale without such
restrictions. In the event of any such sale, the Trustee shall incur no
responsibility or liability for selling all or any part of the Pledged
Securities at a price that the Trustee, in its sole and absolute discretion, may
in good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the
sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section 11 will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Trustee sells.
SECTION 12. Security Interest Absolute. All rights of the Trustee
hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Indenture, any
other Indenture Document, any agreement with respect to any of the Obligations
or any other agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, or any other amendment or waiver of or any consent to
any departure from the Indenture, any other Indenture Document or any other
agreement or instrument relating to any of the foregoing, (c) any exchange,
release or nonperfection of any other collateral, or any release or amendment or
waiver
of or consent to or departure from any guaranty, for all or any of the
Obligations or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Pledgor in respect of the
Obligations or in respect of this Agreement (other than the indefeasible payment
in full of all the Obligations).
SECTION 13. Termination or Release. (a) This Agreement and the security
interests granted hereby shall terminate (i) when all the Obligations have been
indefeasibly paid in full (ii) upon satisfaction and discharge of the Indenture
pursuant to Section 9.01 of the Indenture or (iii) upon a legal defeasance
pursuant to Section 9.02 of the Indenture or covenant defeasance pursuant to
Section 9.03 of the Indenture.
(b) Immediately following a Permitted Finco Collapse Transaction, any
assets of the entities which were Guarantors prior to such Permitted Finco
Collapse Transaction shall cease to be Collateral and shall be released from the
Lien hereunder.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b), the Trustee shall execute and deliver to any Pledgor, at such
Pledgor's expense, all documents that such Pledgor shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 13 shall be without recourse to or warranty by the
Trustee.
SECTION 14. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 12.02 of the Indenture. All
communications and notices hereunder to any Guarantor shall be given to it at
the address for notices set forth on Schedule I.
SECTION 15. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Trustee may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Trustee its rights and remedies hereunder.
SECTION 16. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Trustee and a counterpart hereof shall have been executed on behalf of
the Trustee, and thereafter shall be binding upon such Pledgor and the Trustee
and their respective successors and assigns, and shall inure to the benefit of
such Pledgor, the Trustee and the other Secured Parties, and their respective
successors and assigns, except that no Pledgor shall have the right to assign
its rights hereunder or any interest herein or in the Collateral (and any such
attempted assignment shall be void), except as expressly contemplated by this
Agreement or the other Indenture Documents. This Agreement shall be construed as
a separate agreement with respect to each Pledgor and may be amended, modified,
supplemented, waived or released with respect to any Pledgor without the
approval of any other Pledgor and without affecting the obligations of any other
Pledgor hereunder.
SECTION 17. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Indenture Document shall be
considered to have been relied upon by the Trustee and the other Secured Parties
and shall survive the issuance of the Notes, regardless of any investigation
made by the Secured Parties or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Note or
any other fee or amount payable under this Agreement or any other Indenture
Document is outstanding and unpaid.
(b) Each provision of this Agreement shall be considered separable. In the
event any one or more of the provisions contained in this Agreement should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby (it being understood that the invalidity of
a particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(c) Nothing in this Agreement is intended to, and shall not, constitute
the Trustee or any of the Secured Parties or any person other than the Pledgors
as members of any Unlimited Liability Company for the purposes of the Companies
Act (Nova Scotia) until such time as notice is given to the relevant Pledgor and
further steps are taken under this Agreement to register the Trustee or its
nominee as holder of the Collateral comprising the shares of such Unlimited
Liability Company. To the extent any provision of this Agreement would have the
effect of constituting the Trustee or any of the Secured Parties as a member of
an Unlimited Liability Company prior to such time, such provision shall be
severed herefrom and rendered ineffective (x) only to the extent that such terms
apply to the Trustee and the Secured Parties, and (y) only with respect to
Collateral comprising of the shares of such Unlimited Liability Company, without
otherwise invalidating or rendering unenforceable this Agreement or invalidating
or rendering unenforceable such provision insofar as it relates to Collateral
that does not comprise of the shares of an Unlimited Liability Company.
SECTION 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract, and shall become effective
as provided in Section 16. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 20. Rules of Interpretation. The rules of construction specified
in Section 1.04 of the Indenture shall be applicable to this Agreement. Section
headings used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting this Agreement.
SECTION 21. Jurisdiction; Consent to Service of Pro (a) Each Pledgor
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Indenture Documents, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law;
provided that the foregoing shall not limit the right of any party to seek
appellate relief. Nothing in this Agreement shall affect any right that the
Trustee or any other Secured Party may otherwise have to bring any action or
proceeding relating to this Agreement or the other Indenture Documents against
any Pledgor or its properties in the courts of any jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Indenture Documents in
any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 22. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year fast above written.
ISPAT INLAND ULC
By: /s/ Bhikam C. Agarwal
----------------------------------------
Name: Bhikam C. Agarwal
Title: Vice President
ISPAT INLAND, L.P.
By: /s/ Richard LeBlanc
----------------------------------------
Name: Richard LeBlanc
Title: Chairman of 9064-4816 Quebec,
Inc., General Partner
3019693 NOVA SCOTIA U.L.C.
By: /s/ Richard LeBlanc
----------------------------------------
Name: Richard LeBlanc
Title: Chairman
ISPAT INLAND FINANCE, LLC
By: /s/ Thomas A. McCue
----------------------------------------
Name: Thomas A. McCue
Title: Manager
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
By: /s/ Wayne M. Evans
----------------------------------------
Name: Wayne M. Evans
Title: First Vice President
Schedule I
to the Pledge Agreement
GUARANTORS
Name Address
1. Ispat Inland, L.P. 3210 Watling Street
East Chicago
Indiana 46312
2. 3019693 Nova Scotia U.L.C. 300 Rue Leo - Parisieau
C.P. 2000, succ. Place - Du-Parc
Montreal, Quebec H2W 2S7
3. Ispat Inland Finance,LLC 300 Rue Leo - Parisieau
C.P. 2000, succ. Place - Du-Parc
Montreal, Quebec H2W 2S7
Schedule II
to the Pledge Agreement
CAPITAL STOCK
% OF
CERTIFICATE REGISTERED NUMBER OF SHARES/MEMBERSHIP
ISSUER NUMBER(S) OWNER SHARES INTEREST
- ------------------- ----------- --------------------- ---------------- -----------------
3019693 Nova Scotia R-3, R-4 Ispat Inland, L.P. 550,000,255 100%
U.L.C
Ispat Inland Finance, 2 3019693 Nova Scotia 1 100%
LLC U.L.C.
Ispat Inland ULC 2 Ispat Inland, L.P. 100 100%
Ispat Inland Inc. 1 Ispat Inland Finance, 100 shares of 100%
LLC Series A 8%
Cumulative
Preferred Stock
DEBT SECURITIES
ISSUER PRINCIPAL AMOUNT PAYEE MATURITY DATE
- ------------------ --------------------------------- ------------------------- -------------
Ispat Inland, L.P. Finco Mirror Note (Floating Rate Ispat Inland ULC April 1, 2014
Portion, initially $150,000,000
and Fixed Rate Portion, initially
$644,878,000)
Ispat Inland ULC $9,000,000 Ispat Inland, L.P. July 1, 2014
Ispat Inland Inc. $150,000,000 of Series Y First Ispat Inland Finance, LLC April 1, 2010
Mortgage Bonds
Ispat Inland Inc. $650,000,000 of Series Z First Ispat Inland Finance, LLC April 1, 2014
Mortgage Bonds
3019693 Nova Scotia $97,500,000 Ispat Inland, L.P. July 1, 2014
U.L.C.
Schedule III
to the Pledge Agreement
FINANCING STATEMENTS
Please see attached Financing Statements for:
1. Ispat Inland, L.P.
2. Ispat Inland Finance, LLC
3. Ispat Inland Inc.
Exhibit A
POWER OF ATTORNEY
ISPAT INLAND FINANCE, LLC
WHEREAS, the undersigned ISPAT INLAND FINANCE, LLC (the
"Undersigned") owns certain Series Y and Series Z First Mortgage Bonds
(including any additional Series Y and Series Z First Mortgage Bonds issued by
the Company under the Mortgage, the "First Mortgage Bonds") issued by Ispat
Inland Inc. (the "Company") under the First Mortgage dated April 1, 1928, among
the Company and The Bank of New York and Louis P. Young, as successor trustees
(as amended and supplemented, the "Mortgage");
WHEREAS, the Undersigned has pledged the First Mortgage Bonds to
LASALLE BANK NATIONAL ASSOCIATION, acting in its capacity as trustee (the
"Trustee") under the Indenture dated as of March 25, 2004 among Ispat Inland
ULC, the guarantors party thereto and the Trustee, and the Pledge Agreement
dated as of March 25, 2004 among the Trustee, the Undersigned and other grantors
party thereto;
NOW, THEREFORE, the Undersigned agrees, for the benefit of the
Trustee, as follows:
1. Appointment of Attorney-in-Fact; Grant of Authority. The
Undersigned hereby makes, constitutes and appoints, irrevocably, subject to the
terms hereof, the Trustee the true and lawful attorney-in-fact (the
"Attorney-in-Fact") of the Undersigned, with full power and authority, for, on
behalf of and in the name, place and stead of the Undersigned:
(a) to effect any transfer of the First Mortgage Bonds on behalf of
the Undersigned upon the register of the First Mortgage Bonds in
accordance with Article One, Section 3 of the Mortgage or any other
provision of the Mortgage, including any transfer to or for the benefit of
the Trustee; and
(b) in general, to do all things and to perform all acts required to
be performed on the part of the Undersigned in connection with any
transfer by the Undersigned of the First Mortgage Bonds, including, but
not limited to (i) the execution and delivery of all certificates, powers,
receipts, instructions to transfer agents and registrars, and any other
documents and papers required, contemplated by or deemed advisable in
connection with carrying out and consummating of any such transfer, (ii)
paying for the account of the Undersigned the expenses of such transfer
chargeable to the Undersigned and (iii) otherwise to act for and in the
name of the Undersigned and on behalf of the Undersigned with respect to
the transactions described herein, as fully as the Undersigned could if
then personally present and acting.
2. Exercise of Power. The Attorney-in-Fact is hereby empowered to
determine, in its sole discretion, the time or times when, the purposes for,
and/or the manner in which,
any power herein conferred shall be exercised and the provisions of any
instrument or document which may be executed by it pursuant hereto.
3. Irrevocability. This Power of Attorney is irrevocable and coupled
with an interest. The obligations and authorizations of the Undersigned
hereunder shall not be terminated by operation of law or the occurrence of any
event whatsoever, including but not limited to the bankruptcy, insolvency,
dissolution, liquidation or termination of such entity; and if, after the
execution of this Power of Attorney and before the completion of the
transactions contemplated by the Underwriting Agreement any such event should
occur, the Attorney-in-Fact is nevertheless authorized and directed to complete
all of such transactions as if such event had not occurred, regardless of
whether such Attorney-in-Fact shall have received notice thereof.
4. Power of Substitution. The Attorney-in-Fact is hereby granted and
shall have full power of substitution hereunder. Such substitution shall be
effected by notice thereof to the Undersigned, signed by the Attorney-in-Fact
who is being substituted as well as by his successor Attorney-in-Fact.
5. Governing Law. This Power of Attorney for all purposes shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of law.
6. No Compensation. It is understood that the Attorney-in-Fact shall
serve as such without compensation.
-2-
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of March , 2004.
ISPAT INLAND FINANCE, LLC
By:
_________
Name:
Title:
ACKNOWLEDGMENT
STATE OF ___________)
: ss:
COUNTY OF___________)
On this day of , 2004, before me personally came
, to me known, who, being by me duly sworn, did depose and say that
he/she is of the aforementioned corporation which executed the foregoing
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said company; and that he/her signed
his/her name thereto by like authority.
______________
Notary Public
Exhibit B
Instrument of Transfer
ISPAT INLAND FINANCE, LLC hereby assigns and transfers $150,000,000 aggregate
principal amount of the Series Y and $650,000,000 aggregate principal amount of
Series Z First Mortgage Bonds issued by Ispat Inland Inc. (the "Company") under
the First Mortgage dated April 1, 1928, among the Company and The Bank of New
York and Louis P. Young, as successor trustees (as amended and supplemented, the
"Mortgage") to:
- -------------------------------------------------------------------------
ISPAT INLAND FINANCE, LLC
By:
_______
Name:
Title:
Date:_________________________
Ispat Inland Inc. hereby acknowledges that the foregoing instrument of transfer
has been approved by Ispat Inland Inc. for the transfer of the First Mortgage
Bonds under the First Mortgage dated April 1, 1928, as amended, between the
Company and The Bank of New York and Louis P. Young, as successor trustees.
ISPAT INLAND INC.
By:
_______
Name:
Title:
Date:__________________________
-6-