Exhibit 4.6
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INTERNATIONAL STEEL GROUP INC.
6.500% SENIOR NOTES DUE 2014
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INDENTURE
Dated as of April 14, 2004
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The Bank of New York
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
310(a)(1) .................................................................................... 7.10
(a)(2) .................................................................................... 7.10
(a)(3) .................................................................................... N.A.
(a)(4) .................................................................................... N.A.
(a)(5) .................................................................................... 7.10
(b) .................................................................................... 7.10
(c) .................................................................................... N.A.
311(a) .................................................................................... 7.11
(b) .................................................................................... 7.11
(c) .................................................................................... N.A.
312(a) .................................................................................... 2.05
(b) .................................................................................... 12.03
(c) .................................................................................... 12.03
313(a) .................................................................................... 7.06
(b)(1) .................................................................................... N.A.
(b)(2) .................................................................................... 7.06; 7.07
(c) .................................................................................... 7.06; 12.02
(d) .................................................................................... 7.06
314(a) .................................................................................... 4.03; 12.02; 12.05
(b) .................................................................................... N.A.
(c)(1) .................................................................................... 12.04
(c)(2) .................................................................................... 12.04
(c)(3) .................................................................................... N.A.
(d) .................................................................................... N.A.
(e) .................................................................................... 12.05
(f) .................................................................................... N.A.
315(a) .................................................................................... 7.01
(b) .................................................................................... 7.05; 12.02
(c) .................................................................................... 7.01
(d) .................................................................................... 7.01
(e) .................................................................................... 6.11
316(a) (last sentence) ................................................................................. 2.09
(a)(1)(A) .................................................................................... 6.05
(a)(1)(B) .................................................................................... 6.04
(a)(2) .................................................................................... N.A.
(b) .................................................................................... 6.07
(c) .................................................................................... 2.12
317(a)(1) .................................................................................... 6.08
(a)(2) .................................................................................... 6.09
(b) .................................................................................... 2.04, 403
318(a) .................................................................................... 11.01
(b) .................................................................................... N.A.
(c) .................................................................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE ..................................................................... 1
Section 1.01 Definitions .............................................................................. 1
Section 1.02 Other Definitions ........................................................................ 10
Section 1.03 Incorporation by Reference of Trust Indenture Act ........................................ 10
Section 1.04 Rules of Construction .................................................................... 11
ARTICLE 2. THE NOTES ...................................................................................................... 11
Section 2.01 Form and Dating .......................................................................... 11
Section 2.02 Execution and Authentication ............................................................. 12
Section 2.03 Registrar and Paying Agent ............................................................... 12
Section 2.04 Paying Agent to Hold Money in Trust ...................................................... 13
Section 2.05 Holder Lists ............................................................................. 13
Section 2.06 Transfer and Exchange .................................................................... 13
Section 2.07 Replacement Notes ........................................................................ 27
Section 2.08 Outstanding Notes ........................................................................ 27
Section 2.09 Treasury Notes ........................................................................... 28
Section 2.10 Temporary Notes .......................................................................... 28
Section 2.11 Cancellation ............................................................................. 28
Section 2.12 Defaulted Interest ....................................................................... 28
Section 2.13 CUSIP Numbers ............................................................................ 29
ARTICLE 3. REDEMPTION AND PREPAYMENT ...................................................................................... 29
Section 3.01 Notices to Trustee ....................................................................... 29
Section 3.02 Selection of Notes to Be Redeemed or Purchased ........................................... 29
Section 3.03 Notice of Redemption ..................................................................... 30
Section 3.04 Effect of Notice of Redemption ........................................................... 31
Section 3.05 Deposit of Redemption or Purchase Price .................................................. 31
Section 3.06 Notes Redeemed or Purchased in Part ...................................................... 31
Section 3.07 Optional Redemption ...................................................................... 31
Section 3.08 Mandatory Redemption ..................................................................... 32
ARTICLE 4. COVENANTS ...................................................................................................... 32
Section 4.01 Payment of Notes ......................................................................... 32
Section 4.02 Maintenance of Office or Agency .......................................................... 33
Section 4.03 Reports .................................................................................. 33
Section 4.04 Compliance Certificate ................................................................... 34
Section 4.05 Taxes .................................................................................... 34
Section 4.06 Stay, Extension and Usury Laws ........................................................... 34
Section 4.07 Limitation on Liens ...................................................................... 35
Section 4.08 Limitation on Sale and Leaseback ......................................................... 36
Section 4.09 Exemption from Limitation on Liens and Sale and Leaseback ................................ 37
Section 4.10 Corporate Existence 37
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Section 4.11 Future Guarantees by Domestic Subsidiaries ............................................. 37
ARTICLE 5. SUCCESSORS ................................................................................................... 38
Section 5.01 Company May Consolidate, Etc., on Certain Terms ........................................ 38
Section 5.02 Successor Corporation Substituted ...................................................... 38
Section 5.03 Securities to Be Secured in Certain Events ............................................. 38
Section 5.04 No Consolidation, Etc., Shall Result in Event of Default ............................... 39
Section 5.05 Opinion of Counsel to Be Given to Trustee .............................................. 39
ARTICLE 6. DEFAULTS AND REMEDIES ........................................................................................ 39
Section 6.01 Events of Default ...................................................................... 39
Section 6.02 Acceleration of Maturity; Rescission and Annulment ..................................... 40
Section 6.03 Other Remedies ......................................................................... 41
Section 6.04 Waiver of Past Defaults ................................................................ 41
Section 6.05 Control by Majority .................................................................... 42
Section 6.06 Limitation on Suits .................................................................... 42
Section 6.07 Rights of Holders of Notes to Receive Payment .......................................... 42
Section 6.08 Collection Suit by Trustee ............................................................. 42
Section 6.09 Trustee May File Proofs of Claim ....................................................... 43
Section 6.10 Priorities ............................................................................. 43
Section 6.11 Undertaking for Costs .................................................................. 44
ARTICLE 7. TRUSTEE ...................................................................................................... 44
Section 7.01 Duties of Trustee ...................................................................... 44
Section 7.02 Rights of Trustee ...................................................................... 45
Section 7.03 Individual Rights of Trustee ........................................................... 46
Section 7.04 Trustee's Disclaimer ................................................................... 46
Section 7.05 Notice of Defaults ..................................................................... 46
Section 7.06 Reports by Trustee to Holders of the Notes ............................................. 47
Section 7.07 Compensation and Indemnity ............................................................. 47
Section 7.08 Replacement of Trustee ................................................................. 48
Section 7.09 Successor Trustee by Merger, etc ....................................................... 49
Section 7.10 Eligibility; Disqualification .......................................................... 49
Section 7.11 Preferential Collection of Claims Against Company ...................................... 49
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE ..................................................................... 49
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance ............................... 49
Section 8.02 Legal Defeasance and Discharge ......................................................... 49
Section 8.03 Covenant Defeasance .................................................................... 50
Section 8.04 Conditions to Legal or Covenant Defeasance ............................................. 51
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions ............................................................................. 52
Section 8.06 Repayment to Company ................................................................... 53
Section 8.07 Reinstatement .......................................................................... 53
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER ............................................................................. 53
Section 9.01 Without Consent of Holders of Notes .................................................... 53
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Section 9.02 With Consent of Holders of Notes ........................................................ 54
Section 9.03 Compliance with Trust Indenture Act ..................................................... 56
Section 9.04 Revocation and Effect of Consents ....................................................... 56
Section 9.05 Notation on or Exchange of Notes ........................................................ 56
Section 9.06 Trustee to Sign Amendments, etc. ........................................................ 56
ARTICLE 10. SUBSIDIARY GUARANTEES ........................................................................................ 56
Section 10.01 Guarantee ............................................................................... 56
Section 10.02 Ranking of Subsidiary Guarantees ........................................................ 58
Section 10.03 Execution and Delivery of Subsidiary Guarantee .......................................... 58
Section 10.04 [INTENTIONALLY OMITTED.] ................................................................ 59
Section 10.05 Releases ................................................................................ 59
ARTICLE 11. SATISFACTION AND DISCHARGE ................................................................................... 60
Section 11.01 Satisfaction and Discharge .............................................................. 60
Section 11.02 Application of Trust Money .............................................................. 61
ARTICLE 12. MISCELLANEOUS ................................................................................................ 61
Section 12.01 Trust Indenture Act Controls ............................................................ 61
Section 12.02 Notices. ................................................................................ 61
Section 12.03 Communication by Holders of Notes with Other Holders of Notes ........................... 62
Section 12.04 Certificate and Opinion as to Conditions Precedent ...................................... 62
Section 12.05 Statements Required in Certificate or Opinion ........................................... 63
Section 12.06 Rules by Trustee and Agents ............................................................. 63
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders ................ 63
Section 12.08 Governing Law ........................................................................... 64
Section 12.09 No Adverse Interpretation of Other Agreements ........................................... 64
Section 12.10 Successors .............................................................................. 64
Section 12.11 Severability ............................................................................ 64
Section 12.12 Counterpart Originals ................................................................... 64
Section 12.13 Table of Contents, Headings, etc. ....................................................... 64
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
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INDENTURE dated as of April 14, 2004, among International
Steel Group Inc., a Delaware corporation, the Guarantors (as defined) and The
Bank of New York, a New York banking corporation, as trustee.
The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders (as defined) of the 6.500% Senior Notes due 2014 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Additional Notes" means additional notes (other than the
Initial Notes and other than issuances pursuant to Sections 2.06, 2.07, 2.10,
3.06 or 9.05 of this Indenture and other than Exchange Notes) issued from time
to time under this Indenture in accordance with Section 2.02 hereof, as part of
the same series as the Initial Notes.
"Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"Applicable Procedures" means, with respect to any transfer
or exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means:
(1) with respect to a corporation, the board of
directors of the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the board of
directors of the general partner of the partnership;
(3) with respect to a limited liability company, the
managing member or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or
committee of such Person serving a similar function.
"Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Business Day" means each day other than a Saturday, a
Sunday or a day on which commercial banking institutions are authorized or
required by law to close in New York City.
"Capital Lease Obligation" means, at the time any
determination is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity,
any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all of the
foregoing any debt securities convertible into Capital Stock, whether or not
such debt securities include any right of participation with Capital Stock.
"Clearstream" means Clearstream Banking, S.A.
"Company" means International Steel Group Inc., a Delaware
corporation, and any and all successors thereto.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by an Officer.
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"Comparable Treasury Issue" means the U.S. Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes being redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes.
"Comparable Treasury Price" means, with respect to any
redemption date:
(1) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such redemption date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities"; or
(2) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (b) if the Quotation Agent obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such Quotations.
"Corporate Trust Office of the Trustee" will be at the
address of the Trustee specified in Section 12.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Agreement" means that certain Credit and Guaranty
Agreement, dated as of May 7, 2003, as amended on August 6, 2003, as further
amended on September 30, 2003, and as further amended on March 19, 2004, by and
among International Steel Group Inc., as Guarantor, ISG Acquisition Inc., ISG
Cleveland Inc., ISG Hennepin Inc., ISG Indiana Harbor Inc., ISG Warren Inc., ISG
Riverdale Inc., ISG Plate LLC, ISG Piedmont LLC, ISG Burns Harbor LLC, ISG
Sparrows Point LLC, ISG Steelton LLC, and ISG Lackawanna LLC, as Borrowers,
certain Subsidiaries of the Company, as Guarantors, the Lenders party thereto
from time to time, UBS Securities LLC (f.k.a. UBS Warburg LLC), as Joint Lead
Arranger and Joint Bookrunner, UBS AG Stamford Branch, as Administrative Agent,
Goldman Sachs Credit Partners L.P., as Joint Lead Arranger, Joint Bookrunner and
Syndication Agent, The CIT Group/Business Credit, Inc., as Collateral Agent,
Fleet Capital Corporation, as Co-Documentation Agent, and LaSalle Bank National
Association, as Co-Documentation Agent, providing for up to $1,000,000,000 of
revolving credit and term loan borrowings (including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith) and including any successor or replacement to the
foregoing, and in each case as such agreement may be amended, restated, amended
and restated, supplemented, modified, renewed, including adding additional
Subsidiaries as borrowers or guarantors), modified, renewed, refunded, replaced
(whether upon or after termination or otherwise) or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in
part from time to time, whether in one agreement or more than one agreement,
whether with the same or different lenders, and whether including the same or
different borrowers or guarantors, and specifically including any increase in
the principal amount thereof.
3
"Credit Facilities" means one or more debt facilities
(including, without limitation, the Credit Agreement, but excluding the ISG
Columbus Coatings Agreement) or commercial paper facilities, in each case with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in
part from time to time.
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of
time or the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A hereto except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Domestic Subsidiary" means any Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia and that guarantees, or is a borrower under,
any Credit Facilities, other than a Subsidiary that is formed as a special
purpose entity in connection with a receivables, inventory or other asset
securitization or project financing.
"Equity Offering" means an offer and sale of Capital Stock
of the Company.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of
the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchange Notes" means the Notes issued in the Exchange
Offer pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified
4
Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect on the date of this Indenture.
"Global Notes" means, individually and collectively, each
of the Restricted Global Notes and the Unrestricted Global Notes, substantially
in the form of Exhibit A hereto issued in accordance with Section 2.01,
2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.06(g)(2), which is required to be placed on all Global Notes issued under this
Indenture.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment for
which the United States pledges its full faith and credit.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (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).
"Guarantors" means each of:
(1) the Domestic Subsidiaries; and
(2) any other subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of the Indenture, but only for as
long as any Domestic Subsidiary guarantees the Credit Agreement; and their
respective successors and assigns.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"Indebtedness" means, with respect to any specified Person,
any indebtedness of such Person, whether or not contingent and without
duplication:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof);
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(3) in respect of bankers' acceptances; or
(4) representing Capital Lease Obligations;
if and to the extent any of the preceding items would appear as a liability upon
a balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others secured by
a lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date
shall be: (1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount; and (2) the principal amount
of the Indebtedness, in the case of any other Indebtedness.
Notwithstanding the foregoing, "Indebtedness" shall not
include (a) advance payments by customers in the ordinary course of business for
services or products to be provided or delivered in the future or (b) deferred
taxes.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Indirect Participant" means a Person who holds a
beneficial interest in a Global Note through a Participant.
"Initial Notes" means the first $600.0 million aggregate
principal amount of Notes issued under this Indenture on the date hereof.
"Institutional Accredited Investor" means an institution
that is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who is not also a QIB.
"ISG Columbus Coatings Agreement" means the Amended and
Restated Loan and Security Agreement among ISG Columbus Coatings LLC, as
borrower, General Electric Capital Corporation and Boeing Capital Corporation,
as lenders, the other several lenders from time to time parties thereto and
General Electric Capital Corporation, as administrative agent, dated as of
August 5, 2003.
"Letter of Transmittal" means the letter of transmittal to
be prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Net Tangible Assets" means, at any date, the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom (1) all current liabilities and (2) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, all of the foregoing as set forth on the then most
recent consolidated balance sheet of the Company and computed in accordance with
generally accepted accounting principles.
6
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to
this Indenture. The Initial Notes, the Additional Notes and the Exchange Notes
shall be treated as a single class for all purposes under this Indenture, and
unless the context otherwise requires, all references to the Notes shall include
the Initial Notes, the Exchange Notes, and any Additional Notes.
"Officer" means, with respect to any Person, the Chairman
of the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on
behalf of the Company by an Officer of the Company, who must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel
that meets the requirements of Section 12.05 hereof. The counsel may be an
employee of or counsel to the Company or any Subsidiary of the Company.
"Participant" means, with respect to the Depositary,
Euroclear or Clearstream, a Person who has an account with the Depositary,
Euroclear or Clearstream, respectively (and, with respect to DTC, shall include
Euroclear and Clearstream).
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity.
"Principal Property" means any facility, together with the
land on which it is erected and fixtures comprising a part thereof, used
primarily for manufacturing, processing, research, warehousing or distribution
(other than any facility or portion thereof that is a pollution control facility
that is financed by state or local government obligations), owned or leased by
the Company or a Subsidiary of the Company and having a net book value in excess
of 3% of Net Tangible Assets.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(1) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Trustee to act as the Quotation Agent after consultation with
the Company.
"Reference Treasury Dealer" means Goldman, Sachs & Co. and
its respective successors and, at the option of the Company, other primary U.S.
government securities dealers in New York City selected by the Company.
7
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 pm on
the third Business Day preceding such redemption date.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of April 14, 2004, among the Company and
the other parties named on the signature pages thereof, relating to the Notes,
as such agreement may be amended, modified or supplemented from time to time,
and, with respect to any Additional Notes, one or more registration rights
agreements among the Company and the other parties thereto, as such agreement(s)
may be amended, modified or supplemented from time to time, relating to rights
given by the Company to the purchasers of Additional Notes to register such
Additional Notes, or participate in an exchange offer for such Additional Notes,
under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Global Note bearing the
Private Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of Notes initially sold
in reliance on Rule 903 of Regulation S.
"Responsible Officer," when used with respect to the
Trustee, means any officer within the corporate trust department of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note
bearing the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Restricted Subsidiary" means any Domestic Subsidiary of
the Company that owns or leases a Principal Property or properties which in the
aggregate would constitute a Principal Property or owns or controls stock which
under ordinary circumstances has the voting power to elect a majority of the
Board of Directors of Restricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the
Securities Act.
8
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any properties or assets of the Company and/or such Restricted Subsidiary
(except for leases between the Company and any Restricted Subsidiary, between
any Restricted Subsidiary and the Company or between Restricted Subsidiaries),
which properties or assets, within 12 months of the start of such lease, have
been or are to be sold or transferred by the Company or such Subsidiary to such
Person with the intention of taking back a lease of such properties or assets.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Interest" means interest payable on the Notes in
the event of a Registration Default, the amount of which shall be determined as
provided in the Registration Rights Agreement.
"Subsidiary" means any corporation, association or other
business entity, a majority of the outstanding Voting Stock of which is owned or
controlled by the Company or by one or more other Subsidiaries and which is
consolidated in full in the Company's accounts.
"Subsidiary Guarantee" means the Guarantee by each
Guarantor of the Company's obligations under the Indenture and on the Notes,
executed pursuant to the provisions of the Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Trustee" means the party named as such in the preamble to
this Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent Global Note
substantially in the form of Exhibit A attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do
not bear the Private Placement Legend.
9
"U.S. Person" means a U.S. Person as defined in Rule 902(o)
under the Securities Act.
"Value" means, with respect to a Sale and Leaseback
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale or transfer of the property leased pursuant to such
Sale and Leaseback Transaction or (ii) the fair value in the opinion of the
Board of Directors of such property at the time of entering into such Sale and
Leaseback Transaction, in either case divided first by the number of full years
of the term of the lease and then multiplied by the number of full years of such
term remaining at the time of determination without regard to any renewal or
extension options contained in the lease.
"Voting Stock" of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
Section 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Authentication Order" 2.02
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Funded Debt" 4.08
"Legal Defeasance" 8.02
"lien" 4.07
"Outstanding Notes" 2.08
"Paying Agent" 2.03
"Registrar" 2.03
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security Holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees means
the Company and the Guarantors, respectively, and any successor obligor upon the
Notes and the Subsidiary Guarantees, respectively.
10
All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and
transactions; and
(7) references to sections of or rules under the
Securities Act will be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note will be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Notes. Notes issued in global form will be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form will be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached
11
thereto). Each Global Note will represent such of the outstanding Notes as will
be specified therein and each shall provide that it represents the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Banking" and "Customer Handbook" of Clearstream will be applicable
to transfers of beneficial interests in the Regulation S Global Notes that are
held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
An Officer must sign the Notes for the Company by manual or
facsimile signature.
If the Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note will nevertheless be
valid.
A Note will not be valid until authenticated by the manual
signature of the Trustee. The signature will be conclusive evidence that the
Note has been authenticated under this Indenture.
On the date of this Indenture, the Trustee will, upon
receipt of a written order of the Company signed by an Officer (an
"Authentication Order"), authenticate the Initial Notes for original issue up to
$600,000,000 in aggregate principal amount and, upon delivery of any
Authentication Order at any time and from time to time thereafter, the Trustee
shall authenticate Additional Notes and Exchange Notes for original issue in an
aggregate principal amount specified in such Authentication Order. The aggregate
principal amount of Notes outstanding at any time may not exceed the aggregate
principal amount of Notes authorized for issuance by the Company pursuant to one
or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes. An authenticating agent may authenticate
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 Holders or an
Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar will keep a register of the Notes
12
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company will notify the Trustee in writing of the name
and address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
Section 2.04 Paying Agent to Hold Money in Trust.The Company will
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal, premium or Special
Interest, if any, or interest on the Notes, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) will have no further liability for
the money. If the Company or a Subsidiary acts as Paying Agent, it will
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee will serve as Paying Agent for
the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company will furnish to the Trustee at
least seven Business Days before each interest payment date 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 of Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is
13
not appointed by the Company within 120 days after the date of such
notice from the Depositary;
(2) the Company in its sole discretion determines that
the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; or
(3) there has occurred and is continuing a Default or
Event of Default with respect to notes.
Upon the occurrence of any of the preceding events in (1), (2)
or (3) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also will require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation
S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(1) above, the transferor of such beneficial interest must
deliver to the Registrar either:
(A) both:
14
(i) a written order from a Participant
or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance
with the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant
or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions given by the
Depositary to the Registrar containing information
regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or
exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and
the Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the
15
form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer
required in order to maintain compliance with the
Securities Act.
16
If any such transfer is effected pursuant to subparagraph
(B) or (D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot
be exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
17
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(b)
thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
18
shall take delivery thereof in the form of a
Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee will cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee
will authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(3) will be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant.
The Trustee will deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a
19
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI
Global Note.
(2) Restricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
20
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive
Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer
required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive
Notes and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company will issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar will register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder must present or surrender to the
21
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate
22
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Company
to the effect that such exchange or transfer is in
compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered into the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal
that (A) they are not Broker-Dealers, (B) they are not participating in
a distribution of the Exchange Notes and (C) they are not affiliates
(as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee will cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
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(A) Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
(B) "THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER
RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d)
UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES
ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE
HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF
TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF
TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO INTERNATIONAL STEEL GROUP INC. THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
24
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY
INTEREST HEREIN WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(C) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs
(b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f)
of this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) will not bear the Private
Placement Legend.
(2) Global Note Legend. Each Global Note will bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
INTERNATIONAL STEEL GROUP INC. (THE "COMPANY").
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
25
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges,
the Company will execute and the Trustee will authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 or at the Registrar's request.
(2) No service charge will be made to a Holder of a
Global Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06 and 9.05 hereof).
(3) The Registrar will not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(5) Neither the Registrar nor the Company will be
required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any
26
selection of Notes for redemption under Section 3.02 hereof
and ending at the close of business on the day of selection;
(B) to register the transfer of or to exchange
any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest
payment date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(7) The Trustee will authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the
Company or if a Holder claims that a Note has been damaged, lost or wrongfully
taken and the Trustee and the Company receive evidence to their satisfaction of
the destruction, loss or theft of any Note, the Company will issue and the
Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Note if the requirements of the Trustee and the Company are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and will be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Note effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purpose of Section 3.07(a)
hereof.
27
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any Guarantor, or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any Guarantor, will be considered as though not outstanding, except
that for the purposes of determining whether the Trustee will be protected in
relying on any such direction, waiver or consent, only Notes that a Responsible
Officer of the Trustee actually knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, will authenticate temporary Notes. Temporary Notes will be substantially
in the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as may be reasonably acceptable to
the Trustee. Without unreasonable delay, the Company will prepare and the
Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will dispose of
such canceled Notes (subject to the record retention requirement of the Exchange
Act) in its customary manner. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it will pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each
28
case at the rate provided in the Notes and in Section 4.01 hereof. The Company
will notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment. The Company will
fix or cause to be fixed each such special record date and payment date,
provided that no such special record date may be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) will mail or cause to
be mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers 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 of
such numbers either as printed on the Notes or as contained in any notice of a
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption or exchange
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the "CUSIP"
numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least 45 days but not more than 60 days before a redemption date, unless
otherwise agreed to by the Trustee, an Officers' Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Note to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee will select Notes for
redemption or purchase as follows:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
29
(2) if the Notes are not listed on any national
securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem appropriate.
In the event of partial redemption or purchase by lot, the
particular Notes to be redeemed or purchased will be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
or purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the
Notes selected for redemption or purchase and, in the case of any Note selected
for partial redemption or purchase, the principal amount thereof to be redeemed
or purchased. Notes and portions of Notes selected will be in amounts of $1,000
or whole multiples of $1,000; except that if all of the Notes of a Holder are to
be redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company will mail or cause to be mailed, by first class mail, a notice
of redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior to
a redemption date if the notice is issued in connection with a defeasance of the
Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8
or 11 of this Indenture.
The notice will identify the Notes to be redeemed and will
state:
(1) the redemption date;
(2) the redemption price;
(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 upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(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 Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
30
(8) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the
Company will deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption or purchase price of and accrued interest and Special
Interest, if any, on all Notes to be redeemed or purchased on that date. The
Trustee or the Paying Agent will promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption or purchase price of, and accrued
interest and Special Interest, if any, on, all Notes to be redeemed or
purchased.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest will cease to
accrue on the Notes or the portions of Notes called for redemption or purchase.
If a Note is redeemed or purchased on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid interest
shall be paid to the Person in whose name such Note was registered at the close
of business on such record date. If any Note called for redemption or purchase
is not so paid upon surrender for redemption or purchase because of the failure
of the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in
part, the Company will issue and, upon receipt of an Authentication Order, the
Trustee will authenticate for the Holder at the expense of the Company a new
Note equal in principal amount to the unredeemed or unpurchased portion of the
Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time, the Company may at its option redeem all or part
of the Notes upon not less than 30 nor more than 60 days' prior notice at a
redemption price equal to the greater of (1) 100% of the principal amount of the
Notes being redeemed and (2) as determined by the
31
Quotation Agent, the sum of the present values of 100% of the principal amount
of the Notes being redeemed, plus all scheduled payments of interest on such
Notes to and including April 15, 2014 (but not including accrued and unpaid
interest to the redemption date), in each case discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate plus 50 basis points, together in each
case with accrued and unpaid interest and Special Interest, if any, to the
applicable redemption date.
(b) At any time prior to April 15, 2007, the Company may on one or
more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price of 106.500% of the principal
amount, plus accrued interest and Special Interest, if any, to the redemption
date, with the net cash proceeds of one or more Equity Offerings; provided that:
(1) at least 65% of the aggregate principal amount of
Notes issued under this Indenture (excluding Notes held by the Company
and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption occurs within 90 days after the
consummation of such Equity Offering.
Section 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or
sinking fund payments with respect to the Notes.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest and Special Interest, if any, on the Notes on the
dates and in the manner provided in this Indenture and the Notes. Principal,
premium, if any, and interest and Special Interest, if any will be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. The
Company will pay all Special Interest, if any, in the same manner on the dates
and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Special Interest (without regard to any applicable grace period) at
the same rate to the extent lawful.
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Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company fails to maintain any such required office or agency or fails
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission will in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03 hereof.
Section 4.03 Reports
(a) Whether or not the Company is then subject to Section 13(a) or
15(d) of the Exchange Act, so long as any Notes are outstanding, the Company,
within the time periods specified in the SEC's rules and regulations if the
Company were subject to Section 13(a) or 15(d), file the following reports with
the SEC, even if it is not required by the SEC to do so:
(1) all quarterly and annual reports that would be
required to be filed with the SEC on Forms 10-Q and 10-K if the Company
were required to file reports pursuant to Section 13(a) or 15(d),
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report thereon by the Company's certified
independent accountants; and
(2) all current reports that would be required to be
filed with the SEC on Form 8-K if the Company were required to file
such reports pursuant to Section 13(a) or 15(d).
The Company will not take any action for the purpose of
causing the SEC not to accept any such filings. If, notwithstanding the
foregoing, the SEC will not accept the Company's filings for any reason, the
Company will post the reports referred to in the preceding paragraph on its
website within the time periods that would apply if the Company were required to
file those reports with the SEC pursuant to Section 13(a) or 15(d) of the
Exchange Act.
If such filings with the SEC are not then permitted by the
SEC, and such filings are not generally available on the Internet free of charge
within the time periods in which the Company would be required to file a report
if it were subject to Section 13(a) or 15(d) of the
33
Exchange Act, the Company will, without charge to the Holders, furnish the
Holders with a copies of any such reports.
The Company will at all times comply with TIA Section 314(a).
(b) For so long as any Notes remain outstanding and constitute
"restricted securities" under Rule 144, if at any time it is not required to
file with the SEC the reports required by paragraph (a) of this Section 4.03,
the Company will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such
Guarantor is so required under the TIA) 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 Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officer
with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating that to the
best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default has occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as any of the Notes are outstanding, the Company will
deliver to the Trustee, within 30 days after any Officer becomes aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and the Company and each of the Guarantors (to the extent that it may lawfully
do so) hereby
34
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07 Limitation on Liens.
The Company shall not create or assume, and shall not permit
any Restricted Subsidiary to create or assume, any mortgage, security interest,
pledge or lien (collectively in this Article 4 referred to as "lien") upon any
Principal Property or upon the shares of stock or Indebtedness of any Restricted
Subsidiary to secure Indebtedness without equally and ratably securing the
Outstanding Notes and the Subsidiary Guarantees for so long as such Indebtedness
is secured. However, this restriction does not apply to:
(1) liens of the Company and any Restricted Subsidiary
securing obligations under the Credit Agreement;
(2) liens on any Principal Property existing at the time
of its acquisition and liens created contemporaneously with or within
180 days after (or created pursuant to firm commitment financing
arrangements obtained within that period) the later of (a) the
completion of the acquisition, improvement or construction of such
property to secure payment of the purchase price of such property or
the cost of such construction or improvement, and (b) the date such
property was placed in operation after the acquisition or completion of
any such construction or substantial improvement;
(3) liens on property or shares of stock or Indebtedness
of a corporation existing at the time it is merged into or its assets
are acquired by the Company or a Restricted Subsidiary or arising
thereafter pursuant to contractual commitments entered into prior to
and not in contemplation of those assets being acquired by the Company
or a Restricted Subsidiary;
(4) liens on property or shares of stock or Indebtedness
of a corporation existing at the time it becomes a Restricted
Subsidiary or arising thereafter pursuant to contractual commitments
entered into prior to and not in contemplation of that entity becoming
a Restricted Subsidiary;
(5) liens securing debts of a Restricted Subsidiary to
the Company and/or one or more of its Subsidiaries;
(6) liens in favor of any customer arising in respect of
and not exceeding the amount of performance deposits and partial,
progress, advance or other payments by that customer for goods produced
or services rendered to that customer in the ordinary course of
business;
(7) liens in favor of governmental authorities, or any
trustee or mortgagee acting on behalf, or for the benefit of any
governmental authorities, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
Indebtedness incurred for the purpose of financing all or any part of
the purchase price
35
or the cost of construction of property subject to the liens, and any
other liens incurred or assumed in connection with pollution control,
industrial revenue, private activity or similar bonds issued by a
governmental authority on behalf of the Company or a Restricted
Subsidiary;
(8) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation;
(9) mechanics', workmen's and similar liens;
(10) liens arising out of litigation or judgments being
contested;
(11) liens for taxes not yet due, or being contested,
landlords' liens, tenants' rights under leases, easements, and similar
liens not impairing the use or value of the property involved; and
(12) liens to extend, renew or replace any liens referred
to in clauses (1) through (11) or this clause (12) or any lien existing
on the date of this Indenture.
Section 4.08 Limitation on Sale and Leaseback.
The Company shall not, nor shall it permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction with respect to a
Principal Property and with a lease exceeding three years unless:
(1) the Company and/or such Restricted Subsidiary or
Restricted Subsidiaries would be entitled to incur Indebtedness secured
by a lien on that property without securing the Notes pursuant to the
provisions of Section 4.07; or
(2) an amount equal to the Value of the Sale and
Leaseback Transaction is applied within 270 days to:
(A) the retirement of Indebtedness for borrowed
money of the Company or any Restricted Subsidiary maturing
more than one year after the date incurred and which is senior
to or equal with the Notes or the Subsidiary Guarantees in
right of payment ("Funded Debt");
(B) the purchase of other property that will
constitute Principal Property having a value at least equal to
the net proceeds of the sale; or
(C) capital expenditures with respect to any
existing Principal Property; or
(3) the Company and/or a Restricted Subsidiary shall
repay, repurchase, redeem or otherwise retire Funded Debt (including
the Notes) in an aggregate principal amount at least equal to the net
proceeds of the sale; or
36
(4) the Sale and Leaseback Transaction is entered into in
connection with pollution control, industrial revenue, private activity
or similar bonds issued by a governmental authority.
Section 4.09 Exemption from Limitation on Liens and Sale and Leaseback.
Notwithstanding the provisions of Sections 4.07 and 4.08, the
Company and any one or more of its Restricted Subsidiaries are permitted to
create or assume liens or enter into Sale and Leaseback Transactions that would
not otherwise be permitted without securing the Notes under or otherwise
complying with said provisions, provided that the sum of the aggregate amount of
all Indebtedness secured by these liens (not including Indebtedness otherwise
permitted under the exceptions described in clauses (1) through (12) of Section
4.07), and the Value of all these Sale and Leaseback Transactions (not including
those that are for less than three years or as described in clauses (2) through
(4) of Section 4.08) will not exceed 10% of the Net Tangible Assets of the
Company.
Section 4.10 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such
Subsidiary; and
(2) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however, that
the Company shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any
of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the
Holders.
Section 4.11 Future Guarantees by Domestic Subsidiaries.
If the Company or any of its Subsidiaries acquires or creates
another Domestic Subsidiary after the date of this Indenture that guarantees any
Credit Facilities, or if an existing Domestic Subsidiary becomes a guarantor
under any Credit Facilities, then the Company shall cause, within 10 Business
Days of the date on which it guaranteed such Indebtedness, such Domestic
Subsidiary to execute a Subsidiary Guarantee pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee and
deliver an Opinion of Counsel to the Trustee to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Domestic Subsidiary and constitutes a valid and binding agreement of such
Domestic Subsidiary, enforceable in accordance with its terms (subject to
customary exceptions). The form of such Subsidiary Guarantee is attached as
Exhibit E hereto.
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ARTICLE 5.
SUCCESSORS
Section 5.01 Company May Consolidate, Etc., on Certain Terms.
Subject to the provisions of Sections 5.02 and 5.04, nothing
contained in this Indenture shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations (whether or not
affiliated with the Company), or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance or lease of all or substantially all the properties
and assets of the Company, to any other corporation (whether or not affiliated
with the Company) authorized to acquire and operate the same; provided, however,
and the Company hereby covenants and agrees, that, if the surviving corporation
is other than the Company, upon any such consolidation, merger, sale, conveyance
or lease, the due and punctual payment of the principal of and interest on all
of the Notes, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company, shall be expressly assumed by supplemental indenture
reasonably satisfactory in form to the Trustee, executed and delivered to the
Trustee by the corporation formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
or leased such property.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, conveyance or
lease of all or substantially all of the properties and assets of the Company in
a transaction that is subject to, and that complies with the provisions of,
Section 5.01 hereof, the successor corporation (if other than the Company)
formed by such consolidation or into which the Company is merged or to which
such sale, conveyance or lease is made shall succeed to, and be substituted for
(so that from and after the date of such consolidation, merger, sale, conveyance
or lease, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein. In the
event of any such merger, sale, or conveyance, but not any such lease, that is
subject to, and complies with the provisions of, Section 5.01 hereof, the
predecessor shall be discharged from all obligations and covenants under the
Notes and the Indenture.
Section 5.03 Securities to Be Secured in Certain Events.
If, upon any merger, sale or lease referred to in Section
5.01, any Principal Property of the Company or of any Restricted Subsidiary or
any shares of stock or Indebtedness of any Restricted Subsidiary owned
immediately prior thereto would thereupon become subject to any mortgage,
security interest, pledge, lien or encumbrance, other than liens permitted under
Section 4.07 or 4.09, without securing the Notes and the Subsidiary Guarantees,
the Company, prior to such merger, sale or lease, will by indenture supplemental
hereto secure the due and punctual payment of the principal of and interest on
the Notes and the Subsidiary Guarantees (equally and ratably with any other
Indebtedness of the Company then, or as a result thereof to
38
be, secured thereby) by a direct lien on such Principal Property, shares of
stock or Indebtedness, prior to all liens other than any then existing thereon
and then so permitted by Section 4.07 or Section 4.09.
Section 5.04 No Consolidation, Etc., Shall Result in Event of Default.
Any consolidation, merger, sale, conveyance or lease referred
to in Section 5.01 shall not be permitted under this Indenture unless
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing.
Section 5.05 Opinion of Counsel to Be Given to Trustee.
The Trustee shall be provided with and, subject to Sections
7.01 and 7.02, shall be fully protected in relying upon, an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of this Article 5.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a) Each of the following events constitutes an "Event of
Default":
(1) the Company fails to pay any interest or Special
Interest, if any, upon the Notes when due, and that failure continues
for 30 days;
(2) the Company fails to pay the principal of, or
premium, if any, on, the Notes when due (at maturity, upon redemption
or acceleration, or otherwise);
(3) the Company defaults in the performance, or breach,
of any covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with) and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Notes a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of
this Indenture, if that default results in the acceleration of such
Indebtedness prior to its express maturity and the then outstanding
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness the maturity of which has been so
39
accelerated, aggregates $40.0 million or more and the acceleration is
not discharged within 10 days after notice had properly been given
under such mortgage, indenture or instrument;
(5) the Company pursuant to or within the meaning of
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a custodian
of it or for all or substantially all of its property,
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is not paying its debts as they
become due; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company;
(B) appoints a custodian of the Company for all
or substantially all of the property of the Company; or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to the Outstanding Notes
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding Notes may
declare the principal amount of all the Notes to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount shall become immediately due
and payable.
At any time after such a declaration of acceleration with
respect to the Notes has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Notes, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue interest on all the Notes,
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(B) the principal of (and premium, if any, on)
any Notes which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Notes, and
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; or
(2) all Events of Default with respect to the Notes,
other than the non-payment of the principal of Notes which have become
due solely by such declaration of acceleration, have been waived as
provided in Section 6.04.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium or
Special Interest, 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 of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium and Special Interest, if any, or
interest on, the Notes (including in connection with an offer to purchase);
provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
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Section 6.05 Control by Majority.
Holders of not less than a majority in principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder of a Note or Holders of Notes offer and,
if requested, provide to the Trustee indemnity 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,
the provision of indemnity; and
(5) during such 60-day period the Holders of a majority
in principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium and
Special Interest, if any, and interest on the Note, on or after the respective
due dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Special Interest, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and
42
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the 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. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, interest and Special
Interest, if any, ratably, without preference or priority of
any kind, according to the amounts due and payable on the
Notes for principal, premium, if any, interest and Special
Interest, if any; and
Third: to the Company or any other obligors on the Notes,
including the Guarantors, to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
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Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a 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 and expenses, 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 6.11 does not apply to a suit by the Trustee, a
suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders
of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(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. However, with respect to certificates or opinions
specifically required to be furnished to it hereunder, the Trustee will
examine the certificates and opinions to determine whether or not they
substantially conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee will not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
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(3) the Trustee will not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to
expend or risk its own funds or incur any liability. The Trustee will be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder has offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights of Trustee.
Subject to Section 315(a) through (d) of the TIA:
(a) The Trustee may conclusively rely upon any document (whether
in original or facsimile form) 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.
(b) Except as otherwise set forth in this Indenture, before the
Trustee acts or refrains from acting, it may require an Officers' Certificate or
an Opinion of Counsel or both. The Trustee will not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel. The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel will be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee will not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
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(g) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
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 otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (to the extent permitted by Section 3.10(b) of
the TIA) or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it will not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of authentication
and the Statement of Eligibility and Qualification on Form T-1 to be supplied to
the Company in connection with the Exchange Offer.
Section 7.05 Notice of Defaults
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee will mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of, premium
or Special Interest, if any, or interest on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
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Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
will comply with TIA Section 313(b)(2). The Trustee will also transmit by mail
all reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the
Holders of Notes will be mailed by the Trustee to the Company and filed by the
Trustee with the SEC, if required, and each stock exchange, if any, on which the
Notes are listed in accordance with TIA Section 313(d). The Company will
promptly notify the Trustee when the Notes are listed on any stock exchange or
delisted therefrom.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation will not be limited by any law on
compensation of a trustee of an express trust. The Company will reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses will include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
(b) The Company and the Guarantors will, jointly and severally,
indemnify each of the Trustee and any predecessor Trustee against any and all
losses, claims, damages, liabilities or expenses incurred by it arising out of
or in connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, or
any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense is determined to have been caused by its own
negligence or willful misconduct. The Trustee will notify the Company promptly
of any claim of which a Responsible Officer receives written notice or for which
it may seek indemnity. Failure by the Trustee to so notify the Company will not
relieve the Company or any of the Guarantors of their obligations hereunder
unless such failure prejudices the Company or any of the Guarantors in any
material respect. The Company or such Guarantor will defend the claim and the
Trustee will cooperate in the defense. The Trustee may have separate counsel if
it determines in good faith that an actual or potential conflict of interest
makes joint representation by the Company's counsel inappropriate, and the
Company will pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent will not
be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
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(d) To secure the Company's and the Guarantors' payment
obligations in this Section 7.07, the Trustee will have a lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such lien will
survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(a)(4) or (5) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
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(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act will be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50.0 million as set forth in its most recent published annual report of
condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to 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.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time and
from time to time, elect to have either Section 8.02 or 8.03 hereof be applied
to all outstanding Notes upon compliance with the conditions set forth below in
this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company and each of the Guarantors
will, subject to the satisfaction of
49
the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes
(including the Subsidiary Guarantees) on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes, which will thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Indenture referred to in clauses (1) and (2) below,
and to have satisfied all their other obligations under such Note, the
Subsidiary Guarantees and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which will survive until otherwise
terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Special Interest, if any, on such Notes when such payments are due from
the trust referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes and the maintenance of an office or
agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's and the Guarantors' obligations
in connection therewith; and
(4) this Section 8.02.
Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and each of the Guarantors
will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from each of their obligations under the covenants contained
in Sections 4.07, 4.08, 4.10, 4.11 and Article 5 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
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 will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes and
Subsidiary Guarantees, the Company and the Guarantors may omit to comply with
and will have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply
50
will not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes
and Subsidiary Guarantees will be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, the events described in Sections 6.01(a)(3) and 6.01(a)(4)
hereof will not constitute Events of Default.
In the event of either Legal Defeasance or Covenant
Defeasance, the Holders of the Notes will be able to look only to such trust for
payment of, and any interest on, the Notes.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant
Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay
the principal of, premium and Special Interest, if any, and interest on
the outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(2) in the case of an election under Section 8.02 hereof,
the Company has delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that:
(A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has
been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof,
the Company must deliver to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
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(4) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to
such deposit);
(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Restricted Subsidiaries is a party or by
which the Company or any of its Restricted Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes being defeased over the
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
and
(7) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes will 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 (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium and Special
Interest, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary,
the Trustee will deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(1) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
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Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium
or Special Interest, if any, or interest on any Note and remaining unclaimed for
two years after such principal, premium or Special Interest, if any, or interest
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) will be discharged from such trust; and the Holder of
such Note will thereafter be permitted to look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, will
thereupon cease.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's and the Guarantors' obligations
under this Indenture and the Notes and Subsidiary Guarantees will be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium or Special Interest, if any, or interest on any Note following the
reinstatement of its obligations, the Company will be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture, or the
Notes or the Subsidiary Guarantees without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect, omission or
inconsistency;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes, or to alter the provisions of Article 2
hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of the Notes and Subsidiary
Guarantees by a successor to the Company or such Guarantor pursuant to
Article 5 hereof;
53
(4) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under this Indenture of any Holder;
(5) to conform the text of this Indenture, the Notes or
the Subsidiary Guarantees to any provision of the "Description of
Notes" section of the Company's Offering Circular dated April 8, 2004,
relating to the initial offering of the Notes, to the extent that such
provision in that "Description of Notes" was intended to be a verbatim
recitation of a provision of this Indenture, the Subsidiary Guarantees
or the Notes;
(6) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
or
(7) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee will join with the Company in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture and the Notes and the
Subsidiary Guarantees with the consent of the Holders of at least a majority in
principal amount of the Notes (including, without limitation, Additional Notes,
if any) then outstanding voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium or Special Interest, if
any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes or the Subsidiary Guarantees may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Notes, including Additional Notes, if any, voting as a single class (including
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes.) Section 2.08 hereof shall determine which Notes are
considered to be "outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee will join with the Company and the Guarantors in the
execution of such
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amended or supplemental Indenture unless such amended or supplemental Indenture
directly affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
will not be obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company will mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes or the
Subsidiary Guarantees. However, without the consent of each Holder affected, an
amendment or waiver under this Section 9.02 may not (with respect to any Notes
held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity
of any Note or alter or waive any of the provisions with respect to the
redemption of the Notes;
(3) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium, if any, or Special Interest, if any, or
interest on the Notes (except a rescission of acceleration of the Notes
by the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(5) make any Note payable in money other than that stated
in the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, or interest or premium, if any, or
Special Interest, if any, on the Notes;
(7) waive a redemption payment with respect to any Note;
(8) release any Guarantor from any of its obligations
under its Subsidiary Guarantee or the Indenture, except in accordance
with the terms of this Indenture; or
(9) make any change in Section 6.04 or 6.07 hereof or in
the foregoing amendment and waiver provisions in this Section 9.02.
55
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
will be set forth in an amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated.
Alternatively, the Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that
reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
will not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee will be fully protected in relying upon (subject to Section 7.01
hereof), in addition to the documents required by Section 11.04 hereof, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental Indenture is authorized or permitted by this
Indenture.
ARTICLE 10.
SUBSIDIARY GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each of the Guarantors 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
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that:
56
(1) the principal of, premium, if any, and Special
Interest, if any, and interest on, the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors will be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that, to the fullest extent
permitted by applicable law, their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives, to the
fullest extent permitted by applicable law, diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenant that this Subsidiary
Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated
in full force and effect.
(d) It is the intention of each Guarantor and the Company that the
obligations of each Guarantor hereunder shall be in, but not in excess of, the
maximum amount permitted by applicable law. Accordingly, if the obligations in
respect of any Subsidiary Guarantee would be annulled, avoided or subordinated
to the creditors of any Guarantor by a court of competent jurisdiction in a
proceeding actually pending before such court as a result of a determination
both that such Guarantee was made by such Guarantor without fair consideration
and, immediately after giving effect thereto, such Guarantor was insolvent or
unable to pay its debts as they mature or left with an unreasonably small
capital, then the obligations of such Guarantor under such Guarantee shall be
reduced by such court if and to the extent such reduction would result in the
avoidance of such annulment, avoidance or subordination; provided, however, that
any reduction pursuant to this paragraph shall be made in the smallest amount
necessary as is necessary to
57
reach such result. For purposes of this paragraph, "fair consideration,"
"insolvency," "unable to pay its debts as they mature," "unreasonably small
capital," and the effective times of reductions, if any, required by this
paragraph shall be determined in accordance with the applicable Bankruptcy Law.
(e) Each Guarantor agrees that it will not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee. The
Guarantors will have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantee.
Section 10.02 Ranking of Subsidiary Guarantees.
The Obligations of each Guarantor under its Subsidiary
Guarantee pursuant to this Article 10 will be a general unsecured obligation of
the Guarantor, will be equal in right of payment with any existing and future
senior unsecured Indebtedness of that Guarantor and will be senior in right of
payment to any existing or future subordinated Indebtedness of that Guarantor.
Section 10.03 Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section
10.01 hereof, each Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form attached as Exhibit E hereto will be
endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture will be executed on behalf of
such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Subsidiary Guarantee set
forth in Section 10.01 hereof will remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, will constitute due delivery of the Subsidiary
Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted
Subsidiaries creates or acquires any Domestic Subsidiary after the date of this
Indenture that guarantees any Credit
58
Facilities, or if an existing Domestic Subsidiary becomes a guarantor under any
Credit Facilities, if required by Section 4.11 hereof, the Company shall cause
such Domestic Subsidiary to, within 10 Business Days of the date on which such
Domestic Subsidiary guaranteed such Indebtedness, execute a Subsidiary Guarantee
pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee and deliver an Opinion of Counsel to the Trustee to
the effect that such supplemental indenture has been duly authorized, executed
and delivered by such Domestic Subsidiary and constitutes a valid and binding
agreement of that Domestic Subsidiary, enforceable in accordance with its terms
(subject to customary exceptions). Additionally, any Subsidiary of the Company
at any time may execute a Subsidiary Guarantee pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee and
deliver an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized, executed and delivered by such Subsidiary and constitutes
a valid and binding guarantee of that Subsidiary, enforceable in accordance with
its terms (subject to customary exceptions).
Section 10.04 [INTENTIONALLY OMITTED.]
Section 10.05 Releases.
In the event of (i) any sale, transfer or other disposition of
all or substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, (ii) a sale or other disposition of all of the
Capital Stock of any Guarantor, (iii) upon legal defeasance of the notes as
provided in Article 8 or satisfaction and discharge of the Notes as provided in
Article 11, (iv) such Guarantor ceases to guarantee any Credit Facilities, or
(v) with respect to any Guarantor that became a Guarantor pursuant to clause (2)
of the definition of "Guarantor," when the Credit Agreement is no longer
guaranteed by any Domestic Subsidiary, then such Guarantor and the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Subsidiary Guarantee. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, the Trustee will execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Subsidiary Guarantee.
Upon Legal Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 11
hereof, each Guarantor will be released and relieved of any obligations under
its Subsidiary Guarantee.
Any Guarantor not released from its obligations under its
Subsidiary Guarantee as provided in this Section 10.05 will remain liable for
the full amount of principal of and interest and premium, if any, and Special
Interest, if any, on the Notes and for the other obligations of any Guarantor
under this Indenture as provided in this Article 10.
59
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated
(except lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company or discharged from the trust) have been
delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered
to the Trustee for cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise or will become due and payable
within one year and the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient without consideration
of any reinvestment of interest, to pay and discharge the entire Indebtedness on
the Notes not delivered to the Trustee for cancellation for principal, premium,
if any, and Special Interest, if any, and accrued interest to the date of
maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit or will occur as a result of
such deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other material instrument to
which the Company or any Guarantor is a party or by which the Company
or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be
paid all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or the redemption date, as the
case may be.
In addition, the Company must deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this
Indenture, if money has been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the provisions of Section 8.06 will survive.
In addition, nothing in this Section 11.01 will be deemed to discharge those
provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
60
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited
with the Trustee pursuant to Section 11.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 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
Company's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the Trustee
or Paying Agent.
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties will
control.
Section 12.02 Notices.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company:
International Steel Group Inc.
3250 Interstate Drive
Richfield, Ohio 44286
Telecopier No.: (330) 659-9132
Attention: Corporate Secretary
With a copy to:
61
Jones Day
901 Lakeside Avenue
Cleveland, Ohio 44144
Telecopier No.: (216) 579-0212
Attention: Christopher M. Kelly, Esq.
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Telecopier No.: (212) 815-5707
Attention: Corporate Trust Administration
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) will be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication will also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it will not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
will mail a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of
Notes.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, 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.
Except as otherwise provided in this Section 12.04, upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
62
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been satisfied; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
Notwithstanding any provision in this Indenture to the
contrary, the Company shall not be required to furnish to the Trustee an Opinion
of Counsel in connection with the issuance of the Notes on the date hereof or
the issuance of the Exchange Notes in connection with the consummation of the
Exchange Offer.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) must comply with the provisions of
TIA Section 314(e) and must 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, he
or she has made such examination or investigation as is necessary,
which may include reliance on certifications or representations
provided or made by others, to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been
satisfied; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees
and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, will have
any liability for any obligations of the Company or the Guarantors under the
Notes, this Indenture, the Subsidiary Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
63
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. The waiver may
not be effective to waive liabilities under the federal securities laws.
Section 12.08 Governing Law.
THIS INDENTURE AND THE NOTES WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.10 Successors.
All agreements of the Company in this Indenture and the Notes
will bind its successors. All agreements of the Trustee in this Indenture will
bind its successors.
Section 12.11 Severability.
In case any provision in this Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.
Section 12.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy will be an original, but all of them together represent the
same agreement.
Section 12.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and will in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
64
SIGNATURES
Dated as of April 14, 2004
INTERNATIONAL STEEL GROUP INC.
By: /s/ Lonnie A. Arnett
---------------------------------
Name:Lonnie A. Arnett
Title: Vice President, Chief
Accounting Officer and
Controller
Each Guarantor Listed on Schedule
I Hereto
By: /s/ Lonnie A. Arnett
---------------------------------
Name: Lonnie A. Arnett
Title: Vice President and
Assistant Secretary
Attest: /s/ Jennifer L. Burress
-------------------------------
Name: Jennifer L. Burress
Title: Executive Assistant
THE BANK OF NEW YORK
By: /s/ Van K. Brown
-------------------------------
Name: Van K. Brown
Title: Vice President
65
EXHIBIT A
[Face of Note]
CUSIP/CINS
6.500% Senior Notes due 2014
$
No.
INTERNATIONAL STEEL GROUP INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum of
Dollars on April 15, 2014 or such greater or lesser amount as may be indicated
in Schedule A hereto.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Additional provisions of this Note are set forth on the other side of this Note.
Dated:
1
Dated: April 14, 2004
INTERNATIONAL STEEL GROUP INC.
By: _______________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By: _______________________________
Authorized Signatory
2
[Reverse of Note]
6.500% Senior Notes due 2014
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant
to the provisions of the Indenture]
Capitalized terms used herein have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. International Steel Group Inc., a Delaware,
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 6.500% per annum from April 14, 2004 until maturity and shall pay
the Special Interest, if any, payable pursuant to the Registration Rights
Agreement referred to below. The Company will pay interest and Special Interest,
if any, semi-annually in arrears on April 15 and October 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each,
an "Interest Payment Date"). Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be October 15, 2004. The
Company will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1% per annum in excess of the rate then in
effect; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Special
Interest, if any (without regard to any applicable grace periods), from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year consisting of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on
the Notes (except defaulted interest) and Special Interest, if any, to the
Persons who are registered Holders of Notes at the close of business on the
April 1 or October 1 next preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium, if any,
and Special Interest, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest and Special
Interest, if any, may be made by check mailed to the Holders at their addresses
set forth in the register of Holders; provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest, premium, if any, and Special Interest, if any, on, all Global Notes
and all other Notes the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of
New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
(4) INDENTURE. The Company issued the Notes under an
Indenture dated as of April 14, 2004 (the "Indenture") among the Company, the
Guarantors and the Trustee. 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, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. 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. The Notes are unsecured
obligations of the Company.
(5) OPTIONAL REDEMPTION.
(a) At any time, the Company may at its option redeem all
or part of the Notes upon not less than 30 nor more than 60 days' prior notice
at a redemption price equal to the greater of (1) 100% of the principal amount
of the Notes being redeemed and (2) as determined by the Quotation Agent, the
sum of the present values of 100% of the principal amount of the Notes being
redeemed, plus all scheduled payments of interest on such Notes to and including
April 14, 2014 (but not including accrued and unpaid interest to the redemption
date), in each case discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus 50 basis points, together in each case with accrued and
unpaid interest and Special Interest, if any, to the applicable redemption date.
(b) At any time prior to April 15, 2007, the Company may
on one or more occasions redeem up to 35% of the aggregate principal amount of
notes issued under this Indenture at a redemption price of 106.500% of the
principal amount, plus accrued interest and Special Interest, if any, to the
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that (1) at least 65% of the aggregate principal amount of Notes issued
under this Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption, and (2)
the redemption occurs within 90 days after the consummation of such Equity
Offering.
(6) MANDATORY REDEMPTION. The Company will not be
required to make mandatory redemption or sinking fund payments with respect to
the Notes.
(7) NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the redemption date to
each Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
4
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
(9) PERSONS DEEMED OWNERS. The registered Holder of a
Note may be treated as its owner for all purposes.
(10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes and Additional Notes, if any, voting as a single class, and
any existing default or compliance with any provision of the Indenture or the
Notes may be waived (other than, in some circumstances, a waiver of failure to
pay the principal of, premium or Special Interest, if any, or interest on the
Notes) with the consent of the Holders of a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect, omission or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger or consolidation or sale of all or
substantially all of the Company's assets, to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
conform the text of the Indenture or the Notes to the "Description of Notes"
included in the offering circular utilized in the initial issuance and sale of
the Notes to the extent that such description was intended to be a verbatim
recitation of the provisions of the Indenture or Notes, to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act or to provide for the issuance of
Additional Notes in accordance with the limitations set forth in the Indenture.
(11) DEFAULTS AND REMEDIES. Events of Default include: (i)
failure by the Company to pay any interest or Special Interest, if any, upon the
Notes when due, and that failure continues for 30 days; (ii) failure by the
Company to pay the principal of, or premium, if any, on, the Notes when due (at
maturity, upon redemption or acceleration, or otherwise); (iii) default in the
performance, or breach, of any covenant or warranty of the Company in the
Indenture (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in Section 6.01 of the Indenture specifically dealt
with) and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Notes a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default"
5
hereunder; and (iv) the occurrence of certain events of bankruptcy or insolvency
with respect to the Company. If an Event of Default with respect to the Notes at
the time outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25% in aggregate principal amount of the then outstanding Notes may
declare the principal amount of all Notes due and payable immediately. Subject
to certain limitations, Holders of at least a majority in aggregate principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of at least a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest or premium, if
any, and Special Interest, if any, on, or the principal of, the Notes. The
Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
(12) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
(13) NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator or stockholder, of the Company or any of the Guarantors,
as such, will not have any liability for any obligations of the Company or the
Guarantors under the Notes, the Subsidiary Guarantees or the Indenture 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 the issuance
of the Notes.
(14) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
(15) ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (=
Uniform Gifts to Minors Act).
(16) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes will have all the rights set forth in the
Registration Rights Agreement, dated as of April 14, 2004, among the Company,
the Guarantors and the other parties named on the signature pages thereof or, in
the case of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes will have the rights set forth in one or more registration
rights agreements, if any, among the Company, the Guarantors and the other
parties thereto, relating to
6
rights given by the Company and the Guarantors to the purchasers of any
Additional Notes (collectively, the "Registration Rights Agreement").
(17) CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the 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 Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
International Steel Group Inc.
3250 Interstate Drive
Richfield, Ohio 44286
Telecopier No.: (330) 659-9132
Attention: Corporate Secretary
THIS NOTE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK.
7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
_______________________________________________________________
(Insert assignee's legal name)
_______________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
_______________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
Your Signature:__________________________________________________
(Sign exactly as your name appears on the face
of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
8
Schedule A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of Amount in of this Global Note Signature of
decrease in increase in following such authorized officer
Principal Amount Principal Amount decrease or of Trustee or
Date of Exchange of this Global Note of this Global Note increase Custodian
- ---------------- ------------------- ------------------- ------------------- ------------------
9
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
International Steel Group Inc.
3250 Interstate Drive
Richfield, Ohio 44286
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Re: 6.500% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of April 14, 2004 (the
"Indenture"), between International Steel Group, Inc., as issuer (the
"Company"), and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $ in such Note[s] or interests (the "Transfer"),
to (the "Transferee"), as further specified in Annex A hereto. In connection
with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] Check if Transferee will take delivery of a beneficial interest in
the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the beneficial interest or Definitive Note is
being transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. [ ] Check if Transferee will take delivery of a beneficial interest in
the Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was
1
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
3. [ ]Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Definitive Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ]such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ]such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ]such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the
Securities Act;
or
(d) [ ]such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than
Rule 144A, Rule 144 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the
time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the
effect that such Transfer is
2
in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI
Global Note and/or the Definitive Notes and in the Indenture
and the Securities Act.
4 [ ]Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ]Check if Transfer is pursuant to Rule 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation
of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in
the Indenture.
(b) [ ]Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ]Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with
an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and
in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to
the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
3
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
___________________________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ]a beneficial interest in the:
(i) [ ]144A Global Note (CUSIP ), or
(ii) [ ]Regulation S Global Note (CUSIP ), or
(iii) [ ]IAI Global Note (CUSIP ); or
(b) ... a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ]a beneficial interest in the:
(i) [ ]144A Global Note (CUSIP ), or
(ii) [ ]Regulation S Global Note (CUSIP ), or
(iii) [ ]IAI Global Note (CUSIP ); or
(iv) [ ]Unrestricted Global Note (CUSIP ); or
(b) [ ]a Restricted Definitive Note; or
(c) [ ]an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
International Steel Group Inc.
3250 Interstate Drive
Richfield, Ohio 44286
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Re: 6.500% Senior Notes due 2014
(CUSIP )
Reference is hereby made to the Indenture, dated as of April 14, 2004 (the
"Indenture"), between International Steel Group, as issuer (the "Company"), and
The Bank of New York, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$ in such Note[s] or interests (the "Exchange"). In connection with the
Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an
Unrestricted Global Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the
Securities Act of 1933, as amended (the "Securities Act"),
(iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(b) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In
connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted
Global Notes
1
and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the
Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
(c) [ ]Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In
connection with the Owner's Exchange of a Restricted
Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any
state of the United States.
(d) [ ]Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's
Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and
in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) [ ]Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In
connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being
acquired for the Owner's own account without transfer. Upon
consummation of the proposed Exchange in accordance with the
terms of the Indenture, the Restricted Definitive Note issued
will continue to be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in the Indenture and the
Securities Act.
(b) [ ]Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection
with the Exchange of the Owner's Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] 144A Global Note,
Regulation S Global Note, IAI Global Note with an equal
principal
2
amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer
and (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global
Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
________________________________________
[Insert Name of Transferor]
By: ____________________________________
Name:
Title:
Dated:
3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
International Steel Group Inc.
3250 Interstate Drive
Richfield, Ohio 44286
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Re: 6.500% Senior Notes due 2024
Reference is hereby made to the Indenture, dated as of April 14, 2004 (the
"Indenture"), between International Steel Group Inc., as issuer (the "Company"),
and The Bank of New York, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $ aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. Broker-Dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
1
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will 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 are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
_____________________________________
[Insert Name of Accredited Investor]
By: __________________________________
Name:
Title:
Dated:
2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject
to the provisions in the Indenture dated as of April 14, 2004 (the "Indenture")
among International Steel Group Inc., (the "Company"), the Guarantors party
thereto and The Bank of New York, as trustee (the "Trustee"), (a) the due and
punctual payment of the principal of, premium, if any, and Special Interest, if
any, and interest on, the Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal of and interest on the Notes, if any, if lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms 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 will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Subsidiary Guarantee and the
Indenture are expressly set forth in Article 10 of the Indenture and reference
is hereby made to the Indenture for the precise terms of the Subsidiary
Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall
be bound by such provisions (b) authorizes and directs the Trustee, on behalf of
such Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however,
that the Indebtedness evidenced by this Subsidiary Guarantee shall cease to be
so subordinated and subject in right of payment upon any defeasance of this Note
in accordance with the provisions of the Indenture.
Capitalized terms used but not defined herein have the
meanings given to them in the Indenture.
[NAME OF GUARANTOR(S)]
By: __________________________________
Name:
Title:
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EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of ________________, 200__, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of International Steel Group Inc. (or its permitted
successor), a Delaware corporation (the "Company"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and
____________________, as trustee under the Indenture referred to below (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of April 14, 2004 providing
for the issuance of 6.500% Senior Notes due 2014 (the "Notes");
WHEREAS, the Indenture provides that, under certain
circumstances, the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary
hereby agrees to provide an unconditional Guarantee on the terms and subject to
the conditions set forth in the Subsidiary Guarantee and in the Indenture
including but not limited to Article 10 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or
future director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental 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.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
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5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE
OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
6. COUNTERPARTS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are
for convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _____________________________
Name:
Title:
INTERNATIONAL STEEL GROUP, INC.
By: _____________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By: _____________________________
Authorized Signatory
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SCHEDULE I
GUARANTORS
ISG Acquisition Inc.
ISG Cleveland Inc.
ISG Hennepin Inc.
ISG Indiana Harbor Inc.
ISG Warren Inc.
ISG Riverdale Inc.
ISG Plate LLC
ISG Piedmont LLC
ISG Burns Harbor LLC
ISG Sparrows Point LLC
ISG Steelton LLC
ISG Lackawanna LLC
ISG Railways Inc.
ISG/EGL Holding Company
ISG Cleveland Works Railway Company
ISG South Chicago & Indiana Harbor Railway Company
ISG Venture Inc.
ISG Sales Inc.
ISG Cleveland West Inc.
ISG Cleveland West Properties Inc.
ISG Technologies Inc.
ISG Real Estate Inc.
ISG Hibbing Inc.
Hibbing Taconite Holding Inc.
ISG Plate Services LLC
ISG Sparrows Point Services LLC
ISG Burns Harbor Services LLC
ISG Lackawanna Services LLC
ISG Steelton Services LLC
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