Exhibit 4.03
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NSM STEEL (DELAWARE), INC.
NSM STEEL COMPANY, LTD.
as co-Issuers
12 3/4% Subordinated Second Mortgage Debentures Due 2009
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Guarantor
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INDENTURE
Dated as of March 1, 1998
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THE CHASE MANHATTAN BANK,
Trustee
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TABLE OF CONTENTS
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ARTICLE I Definitions and Incorporation by Reference.................1
SECTION 1.01 Definitions................................................1
SECTION 1.02 Other Definitions.........................................22
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.........23
SECTION 1.04 Rules of Construction.....................................23
SECTION 1.05 Business Day Certificate..................................24
ARTICLE II The Securities............................................24
SECTION 2.01 Form and Dating...........................................24
SECTION 2.02 Execution and Authentication..............................25
SECTION 2.03 Registrar and Paying Agent................................26
SECTION 2.04 Paying Agent to Hold Money in Trust.......................27
SECTION 2.05 Securityholder Lists......................................27
SECTION 2.06 Transfer and Exchange.....................................27
SECTION 2.07 Replacement Securities....................................28
SECTION 2.08 Outstanding Securities....................................29
SECTION 2.09 Temporary Securities......................................29
SECTION 2.10 Cancellation..............................................29
SECTION 2.11 Defaulted Interest........................................30
SECTION 2.12 CUSIP Numbers.............................................30
SECTION 2.13 Book-Entry Provisions for Global Securities...............30
SECTION 2.14 Special Transfer Provisions...............................32
ARTICLE III Redemption................................................36
SECTION 3.01 Notices to Trustee........................................36
SECTION 3.02 Selection of Securities to Be Redeemed....................36
SECTION 3.03 Notice of Redemption......................................36
SECTION 3.04 Effect of Notice of Redemption............................37
SECTION 3.05 Deposit of Redemption Price...............................37
SECTION 3.06 Securities Redeemed in Part...............................37
SECTION 3.07 Optional Redemption.......................................37
ARTICLE IV Covenants.................................................39
SECTION 4.01 Payment of Securities.....................................39
SECTION 4.02 Commission Reports........................................39
SECTION 4.03 Limitation on Indebtedness................................39
SECTION 4.04 Limitation on Restricted Payments.........................41
SECTION 4.05 Limitation on Liens.......................................44
SECTION 4.06 Limitation on Sales of Assets and Subsidiary Stock........44
SECTION 4.07 Offer to Repurchase Upon Failure to Attain Profitable
Operations .............................................46
(i)
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SECTION 4.08 Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries ................................46
SECTION 4.09 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries ......................47
SECTION 4.10 Change of Control.........................................47
SECTION 4.11 Compliance Certificate....................................48
SECTION 4.12 Further Instruments and Acts..............................48
SECTION 4.13 Limitation on Affiliate Transactions......................49
SECTION 4.14 Limitation on Sale Leaseback Transactions.................49
SECTION 4.15 Limitation on Issuances of Capital Stock..................49
SECTION 4.16 Limitation on Sales to nonCredit Qualified Purchasers.....50
SECTION 4.17 Line of Business..........................................50
SECTION 4.18 Ownership.................................................50
SECTION 4.19 Use of Proceeds...........................................50
SECTION 4.20 Additional Amounts........................................50
SECTION 4.21 Maintenance of Office or Agency...........................51
SECTION 4.22 Stay, Extension and Usury Laws............................52
SECTION 4.23 Insurance.................................................52
SECTION 4.24 Compliance with Statutes..................................52
SECTION 4.25 Corporate Existence.......................................53
SECTION 4.26 Independent Engineer......................................53
SECTION 4.27 Securities Cash Flow Sweep................................53
SECTION 4.28 Payment of Taxes..........................................53
SECTION 4.29 Intercompany Notes and Capital Contributions..............53
SECTION 4.30 Financial and Business Information........................53
SECTION 4.31 Inspection................................................56
SECTION 4.32 Other Covenants...........................................56
ARTICLE V Successor Company.........................................57
SECTION 5.01 Merger and Consolidation..................................57
ARTICLE VI Defaults and Remedies.....................................59
SECTION 6.01 Events of Default.........................................59
SECTION 6.02 Acceleration..............................................61
SECTION 6.03 Other Remedies............................................61
SECTION 6.04 Waiver of Past Defaults...................................62
SECTION 6.05 Control by Majority.......................................62
SECTION 6.06 Limitation on Suits.......................................62
SECTION 6.07 Rights of Holders to Receive Payment......................62
SECTION 6.08 Collection Suit by Trustee................................63
SECTION 6.09 Trustee May File Proofs of Claim..........................63
SECTION 6.10 Priorities................................................63
SECTION 6.11 Undertaking for Costs.....................................63
ARTICLE VII Trustee...................................................64
SECTION 7.01 Duties of Trustee.........................................64
SECTION 7.02 Rights of Trustee.........................................65
SECTION 7.03 Individual Rights of Trustee..............................66
(ii)
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SECTION 7.04 Trustee's Disclaimer......................................66
SECTION 7.05 Notice of Defaults........................................66
SECTION 7.06 Reports by Trustee to Holders.............................66
SECTION 7.07 Compensation and Indemnity................................66
SECTION 7.08 Replacement of Trustee....................................67
SECTION 7.09 Successor Trustee by Merger...............................68
SECTION 7.10 Eligibility; Disqualification.............................68
SECTION 7.11 Preferential Collection of Claims Against Issuers.........68
ARTICLE VIII Discharge of Indenture; Defeasance........................68
SECTION 8.01 Discharge of Liability on Securities; Defeasance..........68
SECTION 8.02 Conditions to Defeasance..................................69
SECTION 8.03 Application of Trust Money................................70
SECTION 8.04 Repayment to Issuers......................................71
SECTION 8.05 Indemnity for Government Obligations......................71
SECTION 8.06 Reinstatement.............................................71
ARTICLE IX Amendments................................................71
SECTION 9.01 Without Consent of Holders................................71
SECTION 9.02 With Consent of Holders...................................72
SECTION 9.03 Compliance with Trust Indenture Act.......................73
SECTION 9.04 Revocation and Effect of Consents and Waivers.............73
SECTION 9.05 Notation on or Exchange of Securities.....................73
SECTION 9.06 Trustee to Sign Amendments................................73
SECTION 9.07 Payment for Consent.......................................74
ARTICLE X Security Documents........................................74
SECTION 10.01 Collateral and Security Documents.........................74
SECTION 10.02 Release of Collateral.....................................75
SECTION 10.03 Certificates and Opinions.................................75
SECTION 10.04 Directions to Collateral Agent............................75
ARTICLE XI Subordination of Securities... ..........................76
SECTION 11.01 Agreement to Subordinate..................................76
SECTION 11.02 Liquidation, Dissolution, Bankruptcy......................76
SECTION 11.03 Default on Specified Senior Indebtedness of the Issuers...76
SECTION 11.04 Acceleration of Payment of Securities.....................77
SECTION 11.05 When Distribution Must Be Paid Over.......................77
SECTION 11.06 Subrogation...............................................77
SECTION 11.07 Relative Rights...........................................77
SECTION 11.08 Subordination May Not Be Impaired by Issuers..............78
SECTION 11.09 Rights of Trustee and Paying Agent........................78
SECTION 11.10 Distribution or Notice to Representative..................78
SECTION 11.11 Article XI Not to Prevent Events of Default or Limit
Right to Accelerate ....................................78
SECTION 11.12 Trust Moneys Not Subordinated.............................78
SECTION 11.13 Trustee Entitled to Rely..................................79
(iii)
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SECTION 11.14 Trustee to Effectuate Subordination.......................79
SECTION 11.15 Trustee Not Fiduciary for Holders of Specified Senior
Indebtedness ...........................................79
SECTION 11.16 Reliance by Holders of Specified Senior Indebtedness on
Subordination Provisions ...............................79
ARTICLE XII Guaranty of Securities, Indemnity.........................80
SECTION 12.01 Guaranty..................................................80
SECTION 12.02 Indemnity.................................................82
SECTION 12.03 Representation and Warranty...............................82
SECTION 12.04 Waiver of Subrogation.....................................82
ARTICLE XIII Subordination of Guaranty.................................83
SECTION 13.01 Agreement to Subordinate..................................83
SECTION 13.02 Liquidation, Dissolution, Bankruptcy......................83
SECTION 13.03 Default on Specified Senior Indebtedness of the Company...84
SECTION 13.04 Demand for Payment........................................84
SECTION 13.05 When Distribution Must Be Paid Over.......................85
SECTION 13.06 Subrogation...............................................85
SECTION 13.07 Relative Rights...........................................85
SECTION 13.08 Subordination May Not Be Impaired by the Company..........85
SECTION 13.09 Rights of Trustee and Paying Agent........................85
SECTION 13.10 Distribution or Notice to Representative..................86
SECTION 13.11 Article XIII Not to Prevent Defaults Under the Guaranty
or Limit Right to Demand Payment .......................86
SECTION 13.12 Trustee Entitled to Rely..................................86
SECTION 13.13 Trustee to Effectuate Subordination.......................86
SECTION 13.14 Trustee Not Fiduciary for Holders of Senior Indebtedness
of the Company .........................................86
SECTION 13.15 Reliance by Holders of Specified Senior Indebtedness of
the Company on Subordination Provisions ................87
ARTICLE XIV Miscellaneous.............................................87
SECTION 14.01 Trust Indenture Act Controls..............................87
SECTION 14.02 Notices...................................................87
SECTION 14.03 Communication by Holders with Other Holders...............88
SECTION 14.04 Certificate and Opinion as to Conditions Precedent........88
SECTION 14.05 Statements Required in Certificate or Opinion.............88
SECTION 14.06 When Securities Disregarded...............................88
SECTION 14.07 Rules by Trustee, Paying Agent and Registrar..............89
SECTION 14.08 Legal Holidays............................................89
SECTION 14.09 Governing Law.............................................89
SECTION 14.10 Waiver of Immunities......................................89
SECTION 14.11 Consent to Jurisdiction; Appointment of Agent for
Service of Process; Waiver of Jury Trial ...............89
SECTION 14.12 No Recourse Against Others................................90
SECTION 14.13 Successors................................................90
SECTION 14.14 Multiple Originals........................................90
(iv)
SECTION 14.15 Table of Contents; Headings...............................91
Exhibit A - Form of Initial Security with Guaranty
Exhibit B - Form of Exchange Security with Guaranty
Exhibit C - Form of Transferor Letter of Representation to be Delivered in
Connection with Transfers Pursuant to Regulation S
Exhibit D - Form of Transferor Letter of Representation to be Delivered in
Connection with Transfers Pursuant to Regulation S
Exhibit E - Form of Transferor Letter of Representation to be Delivered in
Connection with Transfers Pursuant to Regulation S
Exhibit F - Form of Transferor Letter of Representation to be Delivered in
Connection with Transfers Pursuant to 144A Global Security
Exhibit G - Form of Transferor Letter of Representation to be Delivered in
Connection with Transfers Pursuant to IAI Global Security
Exhibit H - Form of Exchange Certificate - Exchanges of U.S. Global Security
for Regulation S Global Security
Exhibit I - Form of Exchange Certificate - Exchanges of Regulation S Global
Security for U.S. Global Security
Exhibit J - Form of Exchange Certificate - Exchanges of U.S. Global Security
for Another U.S. Global Security
CROSS-REFERENCE TABLE
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TIA Section Indenture Section
310(a)(1)............................................ 7.10
(a)(2)............................................ 7.10
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(b)............................................... 7.08; 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
(c)............................................... 12.02
(d)............................................... 7.06
314(a)............................................... 4.02; 4.12; 12.02
(b)............................................... N.A.
(c)(1)............................................ 12.04
(c)(2)............................................ 12.04
(c)(3)............................................ N.A.
(d)............................................... N.A.
(e)............................................... 12.05
(f)............................................... 4.12
315(a)............................................... 7.01
(b)............................................... 7.05; 12.02
(c)............................................... 7.01
(d)............................................... 7.01
(e)............................................... 6.11
316(a) (last sentence)............................... 12.06
(a)(1)(A)......................................... 6.05
(a)(1)(B)......................................... 6.04
(a)(2)............................................ N.A.
(b)............................................... 6.07
317(a)(1)............................................ 6.08
(a)(2)............................................ 6.09
(b)............................................... 2.04
318(a)............................................... 12.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
(vi)
INDENTURE dated as of March 1, 1998, among NSM STEEL (DELAWARE),
INC., a Delaware corporation ("NSM (Del)"), NSM STEEL COMPANY, LTD., a company
incorporated under the laws of the Cayman Islands ("NSM Cayman" and, together
with NSM (Del), the "Issuers"), Nakornthai Strip Mill Public Company Limited, a
company incorporated under the laws of Thailand (the "Company") and The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Issuer's 12 3/4%
Subordinated Second Mortgage Debentures Due 2009 (the "Initial Securities") and,
if and when issued as provided in the Registration Rights Agreement of even date
herewith, the Issuer's 12 3/4 Subordinated Second Mortgage Series A Debentures
Due 2009 (the "Exchange Securities", and together with the Initial Securities,
the "Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01 Definitions.
"Accounts" means and includes: (i) the Notes DSR Account, (ii) the
Offshore Reserve Account, (iii) the Revenue Account, (iv) the Notes Sinking Fund
Account and (v) the Operating Account, and any sub-accounts of the foregoing as
described in the Security Sharing Agreement.
"Accreted Value" means, for any particular date of determination
(any such date being herein referred to as a "Specified Date"), the amount
provided below for each U.S.$1,000 principal amount at maturity of the
Securities outstanding:
(i) if the Specified Date occurs on one of the following Interest
Payment Dates, the Accreted Value will equal the amount set forth below:
Accreted
Interest Payment Value
August 1, 1998 ............................................. $ 821.70
February 1, 1999 ........................................... 825.10
August 1, 1999 ............................................. 828.90
February 1, 2000 ........................................... 832.90
August 1, 2000 ............................................. 837.30
February 1, 2001 ........................................... 842.10
August 1, 2001 ............................................. 847.20
February 1, 2002 ........................................... 852.70
August 1, 2002 ............................................. 858.70
February 1, 2003 ........................................... 865.20
Accreted
Interest Payment Value
August 1, 2003 ............................................. 872.30
February 1, 2004 ........................................... 879.90
August 1, 2004 ............................................. 888.10
February 1, 2005 ........................................... 897.00
August 1, 2005 ............................................. 906.60
February 1, 2006 ........................................... 917.00
August 1, 2006 ............................................. 928.30
February 1, 2007 ........................................... 940.50
August 1, 2007 ............................................. 953.60
February 1, 2008 ........................................... 967.90
August 1, 2008 ............................................. 983.30
February 1, 2009 ........................................... 1,000.00
(ii) if the Specified Date occurs before the first Interest Payment
Date, the Accreted Value will equal the sum of (1) the original issue
price of the Securities and (2) an amount equal to the product of (a) the
respective Accreted Value for the first Interest Payment Date less such
original issue price multiplied by (b) a fraction, the numerator of which
is the number of days from the Issue Date to the Specified Date, using a
360-day year of twelve 30-day months, and the denominator of which is the
number of days elapsed from the Issue Date to the first Interest Payment
Date, using a 360-day year of twelve 30-day months;
(iii) if the Specified Date occurs between two Interest Payment
Dates, the Accreted Value will equal the sum of (1) the respective
Accreted Value for the Interest Payment Date immediately preceding such
Specified Date and (2) an amount equal to the product of (i) the
respective Accreted Value for the immediately following Interest Payment
Date less the Accreted Value for the immediately preceding Interest
Payment Date multiplied by (ii) a fraction, the numerator of which is the
number of days from the immediately preceding Interest Payment Date to the
Specified Date, using a 360-day year of twelve 30-day months, and the
denominator of which is 180.
"Additional Assets" means any property or assets (other than
Indebtedness and Capital Stock) relating to the operation of the Mill and
purchased with the proceeds of an Asset Disposition.
"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 the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
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"Agency Agreement" means the agreement between NSM Steel Company,
Ltd. and NSM Steel (Delaware), Inc. dated as of the date hereof.
"Asset Disposition" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan) of shares of Capital Stock of (or
any other equity interests in) a Restricted Subsidiary or of any other property
or other assets (each referred to for the purposes of this definition as a
"disposition") by the Issuers, the Company or any Restricted Subsidiary
(including any disposition by means of a merger, consolidation or similar
transaction) other than (i) a disposition of inventory pursuant to a Project
Document or in the ordinary course of business, (ii) a disposition of obsolete
or worn-out equipment or equipment that is no longer useful in the conduct of
the business of the Issuers, the Company or a Restricted Subsidiary and that is
disposed of in each case in the ordinary course of business, and (iii)
transactions permitted under Section 5.01 of this Indenture. Notwithstanding
anything to the contrary contained above, a Restricted Payment made in
compliance with Section 4.04 shall not constitute an Asset Disposition.
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness, the quotient obtained by dividing (i) the sum of the
product of the numbers of years (rounded upwards to the nearest month) from the
date of determination to the dates of each successive scheduled principal
payment of such Indebtedness or redemption multiplied by the amount of such
payment by (ii) the sum of all such payments.
"Bank Credit Facility" means the Credit Facilities Agreement, dated
September 27, 1995, among the Company and The Industrial Finance Corporation of
Thailand, Thai Farmers Bank Public Company Limited, Siam City Bank Public
Company Limited, The Government Savings Bank, First Bangkok City Bank Public
Company Limited, Nakornthon Bank Public Company Limited, SCF Finance and
Securities Public Company Limited, Siam City Credit Finance and Securities
Public Company Limited, IFCT Finance and Securities Public Company Limited and
First City Investment Finance and Securities Public Company Limited.
"Board of Directors" means the board of directors of any of the
Issuers or the Company, as the context requires, or any duly authorized
committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Issuers or the Company to have been
duly adopted by such Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day which is not a legal holiday in the
State of New York or Thailand.
-3-
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with U.S. GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with U.S. GAAP and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date such lease may be terminated without
penalty.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof, (iii) certificates of
deposit, time deposits and Eurodollar time deposits with maturities of one year
or less from the date of acquisition, bankers' acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any Qualifying
Financial Institution, (iv) repurchase obligations for underlying securities of
the types described in clauses (ii) and (iii) entered into with any Qualifying
Financial Institution, (v) commercial paper rated A-1 or the equivalent thereof
by Moody's or S&P and in each case maturing within one year after the date of
acquisition, (vi) investment funds investing 95% of their assets in securities
of the types described in clauses (i)-(v) above, (vii) readily marketable direct
obligations issued by any state of the United States of America or any political
subdivision thereof having one of the two highest rating categories obtainable
from either Moody's or S&P and (viii) Indebtedness or preferred stock issued by
Persons with a rating of "A" or higher from S&P or "A-2" or higher from Moody's.
"Cash Flow Sweep Amount" means, with respect to any fiscal quarter
of the Company, an amount equal to (a) 50% of the Company's net income before
interest expense, taxes, depreciation and amortization for such quarter minus
(b) the sum of (i) the Company's accrued interest expense (other than
amortization of original issue discount and deferred debt issuance costs) for
such fiscal quarter, (ii) all scheduled principal payments made by the Company
on indebtedness during such fiscal quarter, (iii) the amount of taxes actually
paid by the Company during such fiscal quarter and (iv) the amount of budgeted
capital expenditures made by the Company during such fiscal quarter for the
maintenance of the Company's properties and assets; provided, however, that the
Cash Flow Sweep Amount in respect of any fiscal quarter shall not exceed the sum
of (x) U.S.$15 million and (y) the difference between (A) U.S.$45 million and
(B) the amount of each Cash Flow Sweep Account in the immediately preceding
three fiscal quarters; provided further, however, that the amount described in
(y) above shall be adjusted ratably during the first three complete fiscal
quarters following the Issue Date to take into account such shorter periods.
"Change of Control" means (i) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company; (ii) the Company ceasing to own
100% of capital stock of the Issuers (iii) a majority of the Board of Directors
of the Company shall consist of Persons who are not Continuing Directors; or
(iv) the acquisition by any Person or group of related Persons for purposes of
-4-
Section 13(d) of the Exchange Act of the power, directly or indirectly, to vote
or direct the voting of securities having more than 50% of the ordinary voting
power for the election of directors of the Company.
"Coal Supply Agreement" means the agreement between the Company and
SSM Coal BV dated October 16, 1996.
"Code" means the Internal Revenue Code of 1986, as amended.
"Co-Gen Facility" means a co-generation electric power plant to be
developed in conjunction with one or more affiliates of Enron Corp.
"Co-Gen Investment" means a loan by the Company to the entity that
will operate a cogeneration facility dedicated to the service of the Mill (i) in
an aggregate amount not to exceed U.S.$15.5 million and (ii) on financial terms
substantially identical to the terms of the Senior Notes.
"Collateral" means all the collateral described in the Security
Documents.
"Collateral Agent" means The Chase Manhattan Bank, acting as
collateral agent, and its permitted successors and assigns.
"Commission" means the Securities and Exchange Commission.
"Commodity Commitment" means any commodity future or forward
contract, commodity swap, exchange agreement or derivative or other similar
agreement or arrangement with respect to the commodities market, excluding put
options and similar arrangements and agreements held by the Company or any
Subsidiary.
"Company" means Nakornthai Strip Mill Public Company Limited.
"Consolidated Cash Flow" for any period for any Person means the
Consolidated Net Income for such period plus the following to the extent
deducted in calculating such Consolidated Net Income: (i) income tax expense,
(ii) Consolidated Interest Expense, (iii) depreciation expense, (iv)
amortization expense and (v) all other noncash items reducing Consolidated Net
Income (excluding any noncash item to the extent it represents an accrual of or
reserve for cash disbursements for any subsequent period prior to the Stated
Maturity of the Securities or amortization of a prepaid cash expense that was
paid in a prior period), in each case for such Person and its Subsidiaries for
such period. Notwithstanding the foregoing, the income tax expense, depreciation
expense and amortization expense of a Subsidiary shall be included in
Consolidated Cash Flow only to the extent (and in the same proportion) that the
net income of such Subsidiary was included in calculating Consolidated Net
Income.
"Consolidated Cash Interest Expense" means for any period for any
Person the Consolidated Interest Expense for such Person for such period less
any portion thereof not payable in cash.
-5-
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of Consolidated Cash Flow of the Company
for the period of the most recent four consecutive fiscal quarters ending prior
to the date of such determination and as to which financial statements of the
Company are available to (ii) Consolidated Interest Expense of the Company for
such four fiscal quarters; provided, however, that (A) if the Company has
incurred any Indebtedness since the beginning of such period and through the
date of determination of the Consolidated Coverage Ratio that remains
outstanding or if the transaction giving rise to the need to calculate
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both,
Consolidated Cash Flow and Consolidated Interest Expense for such period shall
be calculated after giving effect on a pro forma basis to (1) such Indebtedness
as if such Indebtedness had been incurred on the first day of such period
(provided that if such Indebtedness is incurred under a revolving credit
facility (or similar arrangement) only that portion of such Indebtedness that
constitutes the one-year projected average balance of such Indebtedness (as
determined in good faith by the Board of Directors of the Company) shall be
deemed outstanding for purposes of this calculation), and (2) the discharge of
any other Indebtedness repaid, repurchased, defeased or otherwise discharged
with the proceeds of such new Indebtedness as if such discharge had occurred on
the first day of such period, (B) if since the beginning of such period any
Indebtedness of any party has been repaid, repurchased, defeased or otherwise
discharged (other than Indebtedness under a revolving credit or similar
arrangement unless such revolving credit Indebtedness has been permanently
repaid and has not been replaced), Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such
Indebtedness had been repaid, repurchased, defeased or otherwise discharged on
the first day of such period and (C) if since the beginning of such period the
Company or any Subsidiary shall have made any Asset Disposition, Consolidated
Cash Flow for such period shall be reduced by an amount equal to the
Consolidated Cash Flow (if positive) attributable to the assets which are the
subject of such Asset Disposition for such period or Increased by an amount
equal to the Consolidated Cash Flow (if negative) attributable thereto for such
period, and Consolidated Interest Expense for such period shall be (1) reduced
by an amount equal to the Consolidated Interest Expense attributable to any
Indebtedness of the Issuers repaid, repurchased, defeased or otherwise
discharged in connection with such Asset Disposition for such period and (2)
increased by interest income, if any, attributable to the assets which are the
subject of such Asset Disposition for such period.
"Consolidated Interest Expense" means, for any period for any
Person, the total interest expense of such Person and its Subsidiaries
determined in accordance with U.S. GAAP, plus, to the extent not included in
such interest expense (i) interest expense attributable to Capitalized Lease
Obligations, (ii) amortization of debt discount, (iii) capitalized interest,
(iv) noncash interest expense, (v) commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and (vi) Interest actually paid by such Person or any such Subsidiary under any
Guarantee of Indebtedness or other obligation of any other Person and less (a)
to the extent included in such interest expense, the amortization of capitalized
debt issuance costs and (b) interest income.
"Consolidated Net Income" means, for any period for any specified
Person, the consolidated net income (loss) of such specified Person and its
Subsidiaries determined in accordance with U.S. GAAP; provided, however, that
there shall not be included in such Consolidated Net Income: (i) any net income
(loss) of any Person acquired by such Person or any of its Subsidi-
-6-
aries in a pooling of interests transaction for any period prior to the date of
such acquisition, (ii) any net income of any Subsidiary of such specified Person
if such Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Subsidiary, directly
or indirectly, to such specified Person except to the extent of the dividends or
distributions that may be paid during such period by such Subsidiary, (iii) any
gain or loss realized upon the sale or other disposition of any assets of such
specified Person or its Subsidiaries which are not sold or otherwise disposed of
in the ordinary course of business and any gain or loss realized upon the sale
or other disposition of any Capital Stock of any Person, (iv) any extraordinary
gain or loss, (v) the cumulative effect of a change in accounting principles,
(vi) the net income of any other Person, other than a Subsidiary of such
specified Person, except to the extent of the lesser of (A) dividends or
distributions paid to such specified Person or any of its Subsidiaries by such
other Person and (B) the net income of such other Person (but in no event less
than zero) shall be included and the net loss of such other Person shall be
included only to the extent of the aggregate Investment of such specified Person
or any of its Subsidiaries in such other Person and (vii) any noncash expenses
attributable to grants or exercises of employee stock options.
"Consolidated Net Worth" of any Person means the total of the
amounts shown on the balance sheet of such Person and its Subsidiaries,
determined on a consolidated basis in accordance with U.S. GAAP, as of the end
of the most recent fiscal quarter of such Person ending prior to the taking of
any action for the purpose of which the determination is being made and for
which financial statements are available (but in no event ending more than 135
days prior to the taking of such action), as (i) the par or stated value of all
outstanding Capital Stock of such Person plus (ii) paid in capital or capital
surplus relating to such Capital Stock plus (iii) any retained earnings or
earned surplus less (A) any accumulated deficit and (B) any amounts attributable
to Disqualified Stock.
"Continuing Director" of any Person means, as of the date of
determination, any Person who (i) was a member of the Board of Directors of such
Person on the Issue Date or (ii) was nominated for election or elected to the
Board of Directors of such Person with the affirmative vote of a majority of the
Continuing Directors of such Person who were members of such Board of Directors
at the time of such nomination or election.
"Credit Facilities" means the Bank Credit Facility, as such
agreement may be amended, supplemented or otherwise modified in writing from
time to time, including any agreement extending the maturity of, refunding,
Refinancing or replacing such agreement (but in no event shall the definition of
Credit Facilities include any amendment supplement or other modification or
agreement increasing the amount of borrowings available to the Company and its
Subsidiaries thereunder).
"Credit Party" means the Company or the Issuers or any Restricted
Subsidiary.
"Credit Qualified Purchaser" means a purchaser of goods from the
Company and its Subsidiaries (i) pursuant to the Off-Take Agreements, (ii) whose
account receivable is monetized on a non-recourse basis to the Company and its
Subsidiaries pursuant to the terms of the Working Capital Credit Facility, (iii)
which has an investment grade debt rating (or is a controlled
-7-
subsidiary of a company with an investment grade debt rating) or (iv) whose
account receivable is fully backed by a letter of credit from a Qualified
Financial Institution.
"Currency Agreement" means, in respect of any Person, any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
"Debenture Depositary Agreement" means the agreement of even date
herewith among the Issuers, the Company and The Chase Manhattan Bank as
Book-Entry Depositary.
"Default" means any event, act or condition which with notice or
passage of time or both would become an Event of Default.
"Definitive Securities" means Securities that are in the form of
Exhibit A or Exhibit B attached hereto that do not include the Global Securities
Legend or Schedule of Increases or Decreases in Global Security thereof.
"Depositary" means, with respect to the Global Securities, the
Person specified in Section 2.03 as the Depositary with respect to such
Securities, until a successor shall have been appointed and become such pursuant
to the applicable provisions of this Indenture, and thereafter, "Depositary"
shall mean or include such successor.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the first anniversary of the
Stated Maturity of the Securities; provided, however, that any Capital Stock
that would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require such Person to repurchase or redeem such
Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the first anniversary of the Stated Maturity of the
Securities shall not constitute Disqualified Stock of the "asset sale" or
"change of control" provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the provisions described
under Sections 4.06 and 4.10 of this Indenture.
"Downstream Finishing Facilities" means the Company's processing
facilities for the production of high-quality pickled and oiled, cold-rolled,
galvanized, and other value-added steel products.
"DRI Plant" means the Company's facility for the production of
direct reduced iron and co-generation power.
"Employment Agreement" means the agreement between the Company and
John W. Schultes dated as of the Issue Date.
-8-
"Equity Investment Proceeds" means any amounts received by the
Company as a result of the concurrent sale of equity as of the Issue Date net of
all related fees and expenses.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means the 12 3/4% Subordinated Second Mortgage
Debentures Due 2009 to be issued pursuant to this Indenture in connection with
the offer to exchange Securities for the Initial Securities that may be made by
the Issuers pursuant to the Registration Rights Agreement.
"Existing Arrangements" shall mean the contracts and other
agreements in effect on the Issue Date to the extent specified in Annex I to
this Indenture.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Global Security" means a Security that is in the form of Exhibit A
or Exhibit B hereto that includes the Global Securities Legend and Schedule of
Increases or Decreases in Global Security thereof.
"Global Securities Legend" means the legend set forth under such
caption in the form of Initial Security in Exhibit A hereto.
"Guaranty" means the Guarantee of the Securities by the Company
pursuant to, and as described in, Article XII.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity
Commitment.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Hot Mill" means the Company's compact strip production thin-slab
hot mill for steel melting, refining, casting and hot-rolling.
"Incur" means issue, assume, guarantee, incur or otherwise become
liable for. Notwithstanding the foregoing, in the event the Company shall have
obtained Profitable Operations and, thereafter, enters into any revolving credit
or multiple-draw term loan facility in
-9-
order to fund Phase III Construction Costs, the Company may treat all or any
portion of such revolving credit or multiple-draw term debt (subject to an
aggregate limit of U.S.$150 million) as being Incurred from and after any date
beginning the date that the revolving credit or multiple-draw term loan facility
commitment is extended to the Company, by furnishing notice thereof to the
Trustee, and any borrowings or reborrowings by the Company under such commitment
up to the amount of such commitment designated by the Company as Incurred shall
not be deemed to be new Incurrences of Indebtedness by the Company; provided,
however, that the undrawn portion of any such revolving or term debt shall be
deemed to be outstanding Indebtedness until such time as the commitment
thereunder is terminated.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if any)
in respect of indebtedness of such Person for borrowed money, (ii) the principal
of and premium (if any) in respect of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person in respect of letters of credit or other similar instruments
(including reimbursement obligations with respect thereto) (other than
obligations with respect to letters of credit securing obligations (other than
obligations described in clauses (i), (ii) and (v)) entered into in the ordinary
course of business of such Person to the extent that such letters of credit are
not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed
no later than the third business day following receipt by such Person of a
demand for reimbursement following payment on the letter of credit), (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services (except trade payables and accrued expenses incurred in the
ordinary course of business), which purchase price is due more than six months
after the date of placing such property in service or taking delivery and title
thereto or the completion of such services, (v) all Capitalized Lease
Obligations and all Attributable Indebtedness of such Person, (vi) all
indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person, (vii) all
Indebtedness of other Persons to the extent Guaranteed by such Person, (viii)
the amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or any Preferred Stock
of such Person or any of its Subsidiaries to the extent such obligation arises
on or before the Stated Maturity of the Securities (but excluding, in each case,
accrued dividends) and (ix) to the extent not otherwise included in this
definition, obligations under Currency Agreements, Interest Rate Agreements and
Commodity Commitments. The amount of Indebtedness of any Person at any date
shall be the outstanding principal amount of all unconditional obligations as
described above, as such amount would be reflected on a balance sheet prepared
in accordance with U.S. GAAP, and the maximum liability of such Person, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations described above at such date.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Independent Director" means a member of the board of directors of a
Person that is not an officer, employee or former officer or employee of such
Person or one of its Affiliates and, with respect to any transaction or series
of related transactions, a member of the board of directors who does not have
any material direct or indirect financial interest in or with respect to such
transaction or series of related transactions (including for such purpose the
interest of any
-10-
other Person with respect to whom such director is also a director, officer or
employee) who is qualified under the regulations prescribed by the Stock
Exchange of Thailand.
"Independent Engineer" means Hatch Associates, Ltd.
"Initial Securities" means the 12 3/4% Subordinated Second Mortgage
Debentures Due 2009, issued under this Indenture on or about the date hereof.
"Insolvency or Liquidation Proceeding" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith, relating to the
Issuers or the Company or any of their respective assets, or (ii) any
liquidation, dissolution or other winding up of the Issuers or the Company,
whether voluntary or involuntary or whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors or any other
marshaling of assets or liability of the Issuers or the Company.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Securities.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts payable on the balance sheet of such Person) or other
extension of credit (including by way of Guarantee or
similar arrangement, but excluding any debt or extension of credit
represented by a bank deposit other than a time deposit) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person.
"Iron Ore Fines Supply Agreement" means the agreement between the
Company and MMTC Limited dated February 6, 1997.
"Issue Date" means the date on which the Securities are originally
issued.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Majority Holders" means, at any time, the holder or holders of at
least a majority in aggregate principal amount of the then outstanding
Securities.
-11-
"Management Agreement" means the agreement between the Company and
Management Co. dated as of the Issue Date.
"Management Co." means NSM Management Company, LLC.
"Material" means material in relation to (a) the business,
operations, affairs, financial condition, assets or properties of the Company
and its Subsidiaries taken as a whole or (b) the ability of the Company to
perform its obligations under this Indenture, the Notes, the Securities, the
Security Documents, the Project Documents or (c) the validity or enforceability
of the Indenture or the Notes, the Securities, the Security Documents or the
Project Documents.
"Mechanical Completion" means the point in time when the DRI Plant,
the Hot Mill and the Downstream Finishing Facilities have been completed and
certified as complete by the Independent Engineer.
"Mill" means collectively the DRI Plant, the Hot Mill and the
Finishing Facilities.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received) therefrom, in each case net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses incurred, and
all taxes required to be paid or accrued as a liability under U.S. GAAP, as a
consequence of such Asset Disposition, (ii) all payments made on any
Indebtedness which is secured by any assets subject to such Asset Disposition in
accordance with the terms of any Lien upon such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition or by
applicable law, be repaid out of the proceeds from such Asset Disposition, (iii)
all distributions and other payments required to be made to any Person owning a
beneficial interest in assets subject to sale or minority interest holders in
Subsidiaries or joint ventures as a result of such Asset Disposition, (iv) the
deduction of appropriate amounts to be provided by the seller as a reserve, in
accordance with U.S. GAAP, against any liabilities associated with the assets
disposed of in such Asset Disposition; provided, however, that upon any
reduction in such reserves (other than to the extent resulting from payments of
the respective reserved liabilities), Net Available Cash shall be increased by
the amount of such reduction to reserves, and retained by the Issuers, the
Company or any Restricted Subsidiary after such Asset Disposition and (v) any
portion of the purchase price from an Asset Disposition placed in escrow
(whether as a reserve for adjustment of the purchase price, for satisfaction of
indemnities in respect of such Asset Disposition or otherwise in connection with
such Asset Disposition); provided, however, that upon the termination of such
escrow, Net Available Cash shall be increased by any portion of funds therein
released to the Issuers, the Company or any Restricted Subsidiary.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees
-12-
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result of such issuance or sale.
"Notes" means collectively the Senior Notes and the Senior
Subordinated Notes.
"Notes DSR Account" means an account maintained with the Collateral
Agent and established by the Company on or prior to the Issue Date into which
shall be deposited on the Issue Date, a portion of the Notes Net Proceeds,
together with a portion of the proceeds of the offering of the Securities, equal
to the sum of (i) the aggregate interest to be payable on the Senior Notes on
the first three interest payment dates in respect thereof, (ii) the aggregate
interest to be payable on the Senior Subordinated Notes on the first two
Interest Payment Dates and (iii) the aggregate interest to be payable on the
Securities on the first two interest payment dates in respect thereof.
"Notes Guaranties" means the Guarantees of the Notes by the Company
pursuant to, and as described in, the Senior Note Indenture and the Senior
Subordinated Note Indenture.
"Notes Net Proceeds" means the net proceeds from the sale of the
Notes less the portion thereof applied to pay in full all Indebtedness of the
Company required to be paid with such proceeds and to pay all fees and expenses
relating to the issuance of the Notes.
"Notes Sinking Fund Account" means an account maintained with the
Collateral Agent and established by the Company on or prior to the Issue Date
into which shall be deposited no later than the fifteenth day following the last
day of each fiscal quarter of the Company (based on the Company's fiscal year in
effect on the Issue Date), an amount equal to the Cash Flow Sweep Amount as well
as any amount required to be deposited therein under Section 4.32(e).
"Offering Memorandum" means a preliminary offering memorandum, a
supplement to the preliminary offering memorandum and an offering memorandum, as
supplemented as of March 2, 1998, together with any other document approved by
the Issuers for use in connection with the contemplated resale of the
Securities.
"Officer" means, in the case of NSM Steel Company, Ltd. and the
Company, any director thereof and, in the case of NSM Steel (Delaware), Inc.,
the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the President, any General Manager, the Treasurer or the Secretary.
"Officers' Certificate" means a certificate signed by two Officers.
"Offshore Reserve Account" means an account maintained with the
Collateral Agent and established by the Company on or prior to the Issue Date
into which shall be deposited on the Issue Date, the balance (not otherwise
deposited in the Notes DSR Account) of the Notes Net Proceeds, together with the
balance of the proceeds of the offering of the Securities and Equity Investment
Proceeds.
"Off-Take Agreements" collectively mean the agreements between the
Company and Preussag Handel GmbH and the Company and Klockner Steel Trading each
dated November
-13-
19, 1997, as such agreements may be amended, supplemented or otherwise modified
in writing from time to time.
"Operating Account" means an account or accounts maintained with the
Collateral Agent and established by the Company on or prior to the Issue Date
into which shall be deposited on the first day of each calendar month an amount
such that, immediately after giving effect to such deposit, the balance of such
account shall be equal to the sum of (i) the capital expenditures (including
Phase II Construction Costs to be paid by the Company to vendors in Thailand) of
the Company during that calendar month as estimated in advance in good faith by
the Company and (ii) any amount required to be paid during such calendar month
in connection with the Bank Credit Facility.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
the Issuers or the Trustee.
"Pari Passu", as applied to the ranking of any Indebtedness of a
Person in relation to other Indebtedness of such Person, means that each such
Indebtedness is not subordinated in right of payment to the same Indebtedness as
is the other, and is so subordinate to the same extent, and is not subordinate
in right of payment to each other or to any Indebtedness as to which the other
is not so subordinate.
"Permitted Foreign Investment" means, with respect to any Person, an
Investment by such Person in (i) cash and (ii) Cash Equivalents.
"Permitted Hedging Obligations" means (a) Indebtedness under Hedging
Obligations to the extent related to the Securities and any Refinancing
Indebtedness; and (b) Indebtedness under Commodity Commitments or Currency
Agreements entered into in the ordinary course of business in good faith as a
risk management or hedge against change in market conditions; provided, however,
that in the case of this clause (b) the aggregate amount of commodities
underlying all such Commodity Commitments on any date, for the Company and the
Restricted Subsidiaries, that mature or expire over any 12 month period may not
exceed the Company's expected requirements for such commodities over such 12
month period.
"Permitted Investments" means (i) investments in direct obligations
of the United States of America maturing within 90 days of the date of
acquisition thereof, (ii) investments in certificates of deposit maturing within
90 days of the date of acquisition thereof issued by a Qualifying Financial
Institution, (iii) investments in commercial paper given the highest rating by
S&P and Moody's and maturing not more than 90 days from the date of acquisition
thereof, (iv) Investments in Phase II Construction Costs, (v) the Co-Gen
Investment (less the amount of any Investment made pursuant to clause (viii)
below), (vi) Investments in transportation and downstream processing assets
using the proceeds of the repayment of the Cogen Investment provided that the
Securities are secured by a Lien on such assets that is senior to or pari passu
with any other Lien on such assets other than Liens securing the Notes and the
Credit Facilities, (vii) restructurings, swaps or other dispositions of the
Related Party Receivable; provided that (a) any such disposition shall result in
the receipt by the Company of tangible assets and (b) the
-14-
Securities shall be secured by a Lien on such assets that is senior to or pari
passu with any other Lien on such assets, other than Liens securing the Notes
and the Credit Facilities; and (viii) other investments in an aggregate amount
not to exceed the lesser of an amount equal to (a) the sum of all principal
repayments on the U.S.$15.5 million loan made by the Company in connection with
the Co-Gen Investment and (b) U.S.$15.5 million.
"Permitted Liens" means, with respect to any Person, (a) pledges or
deposits by such Person under workers' compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to
which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent, in
each case Incurred in the ordinary course of business; (b) Liens imposed by law,
such as carriers', warehousemen's and mechanics' Liens, in each case for sums
not yet due or being contested in good faith by appropriate proceedings or other
Liens arising out of judgments or awards against such Person with respect to
which such Person shall then be proceeding with an appeal or other proceedings
for review; (c) Liens for property taxes not yet subject to penalties for
non-payment or which are being contested in good faith by appropriate
proceedings; (d) Liens in favor of issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business provided, however, that such letters of credit
do not constitute Indebtedness; (e) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real property or
Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person; (f) Liens securing Indebtedness Incurred to finance the
construction, purchase or lease of, or repairs, improvements or additions to,
property of such Person; provided, however, that the Lien may not extend to any
other property owned by such Person or any of its Subsidiaries at the time the
Lien is Incurred, and the Indebtedness (other than any interest thereon) secured
by the Lien may not be Incurred more than 180 days after the later of the
acquisition, completion of construction, repair, improvement, addition or
commencement of full operation of the property subject to the Lien; (g) Liens to
secure the Notes, Securities, Guaranty and Notes Guaranties; (h) Liens securing
Indebtedness permitted under clause (b)(i) of Section 4.03 of this Indenture to
the extent such Liens (other than Liens on inventories) also secure, on an equal
and ratable basis, the Issuers' and the Company's obligations under the Senior
Subordinated Notes; (i) Liens existing on the Issue Date; (j) Liens on property
or shares of Capital Stock of another Person at the time such other Person
becomes a Subsidiary of such Person; provided, however, that such Liens are not
created, incurred or assumed in connection with, or in contemplation of, such
other Person becoming such a Subsidiary; provided further, however, that such
Lien may not extend to any other property owned by such Person or any of its
Subsidiaries; (k) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means of a
merger or consolidation with or into such Person or a Subsidiary of such Person;
provided, however, that such Liens are not created, incurred or assumed in
connec-
-15-
tion with, or in contemplation of, such acquisition; provided further, however,
that the Liens may not extend to any other property owned by such Person or any
of its Subsidiaries; (l) Liens securing Indebtedness or other obligations of a
Subsidiary of such Person owing to such Person or a wholly owned Subsidiary of
such Person; (m) Liens securing Hedging Obligations so long as such Hedging
Obligations relate to Indebtedness that is, and is permitted to be under this
Indenture, secured by a Lien on the same property securing such Hedging
Obligations; and (n) Liens to secure any Refinancing (or successive
Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (f), (i), (j) and (k); provided, however,
that (x) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements to or on such property) and (y) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (f), (i), (j) or
(k) at the time the original Lien became a Permitted Lien and (B) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement. For purposes of this
definition, the term "Indebtedness" shall be deemed to include interest on such
Indebtedness.
"Person" means any individual corporation, partnership, joint
venture, association, joint-stock Issuers, trust, unincorporated organization,
government or any agency or political subdivision hereof or any other entity.
"Phase II Completion" means the completion of the construction of
the Hot Mill, the DRI Plant and the Downstream Finishing Facilities.
"Phase II Construction Costs" mean construction costs associated
with the Hot Mill, the DRI Plant and the Downstream Finishing Facilities, in
each case certified as true and correct by the Independent Engineer.
"Phase III Construction Costs" mean construction costs incurred in
connection with the Mill after Phase II Completion.
"Post-Petition Interest" means all interest accrued or accruing
after the commencement of any Insolvency or Liquidation Proceeding (and interest
that would accrue but for the commencement of any Insolvency or Liquidation
Proceeding) in accordance with and at the contract rate (including, without
limitation, any rate applicable upon default) specified in the agreement or
instrument creating, evidencing or governing any Indebtedness, whether or not,
pursuant to applicable law or otherwise, the claim for such interest is allowed
as a claim in such Insolvency or Liquidation Proceeding.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"President and/or CEO" means John W. Schultes or his successor
appointed by Management Co.
-16-
"principal" of a Security means the principal of the Security plus
the premium, if any, payable on the Security that is due or overdue or is to
become due at the relevant time.
"Private Placement Legend" means the legend set forth under such
caption in the form of Initial Security in Exhibit A hereto.
"Profitable Operations" means the point in time at which
Consolidated Cash Flow for a consecutive six month period equals at least 200%
of Consolidated Interest Expense for such six month period, to the extent such
status has been demonstrated in a certificate of the General Manager delivered
to the Trustee and the Collateral Agent, accompanied by a certificate of the
Company's independent accountants confirming such results based on a review
conducted by such accountants.
"Project Documents" means and includes (i) the Offtake Agreements,
(ii) the SDI Agreement, (iii) the SDI License Agreement, (iv) the Management
Agreement, (v) the Shareholders Agreement, (vi) the Coal Supply Agreement, (vii)
the Iron Ore Fines Supply Agreement, (viii) the Working Capital Credit Facility,
(ix) the Agency Agreement, (x) the Employment Agreement, and (xi) the Sriracha
Harbor Agreement.
"Purchase Agreements" means the agreements for the purchase of the
Securities between the Issuers, the Company, and the Purchasers each dated March
12, 1998.
"Purchasers" has the meaning given in the Purchase Agreements.
"Public Equity Offering" means an offering to the public for cash by
the Issuers or the Company of its common stock, or options, warrants or rights
with respect to its common stock.
"Qualifying Domestic Financial Institution" means a financial
institution in Thailand having capital and surplus in excess of
U.S.$1,000,000,000.
"Qualifying Financial Institution" means a financial institution
that (i) is domiciled in the United States, the United Kingdom, France or
Germany, (ii) is located in New York, New York and (iii) has capital and surplus
in excess of U.S.$5,000,000,000.
"Redemption Date" means any date on which the Securities are
optionally redeemed pursuant to Section 3.07.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or incurred in compliance with the Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
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Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; provided further,
however, that Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company or (y) Indebtedness of
the Company or a Restricted Subsidiary that Refinances Indebtedness of an
Unrestricted Subsidiary.
"Registered Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Registrable Machinery" means machinery that qualifies for
registration pursuant to the Machinery Registration Act (Thailand) and that may
be mortgaged to secure a debt.
"Registration Rights Agreement" means the Registration Rights
Agreement dated March 12, 1998, by and between the Purchasers, the Issuers and
the Company, as such agreement may be amended, modified, or supplemented from
time to time in accordance with the terms thereof.
"Related Party Receivable" means the up to U.S.$50 million of
receivables owed to the Company by certain of its affiliates.
"Representative" means any trustee, agent or representative (if any)
for any issue of Specified Senior Indebtedness of the Company.
"Restricted Subsidiary" means, initially, each Subsidiary of the
Company existing on the date of the Indenture, and any other Subsidiary
designated from time to time by the Board of Directors of the Company as a
"Restricted Subsidiary" in accordance with this Indenture.
"Restricted Period" means the period of 40 consecutive days
beginning on and including the first day after the Issue Date.
"Revenue Account" means an account or accounts maintained with the
Collateral Agent and established by the Company on or prior to the Issue Date
into which shall be deposited (directly or through an intermediate account) all
sales proceeds, all insurance proceeds and all other amounts received by the
Company that are not otherwise required to be deposited in the Notes DSR Account
or the Offshore Reserve Account.
"S&P" means Standard & Poor's Rating Services, a division of
McGraw-Hill, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person.
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"SDI Agreement" means the agreement between NSM Management Company,
LLC and Steel Dynamics, Inc. dated as of the Issue Date.
"SDI License Agreement" means the agreement between the Company and
Steel Dynamics, Inc. dated as of the Issue Date.
"Securities" means, collectively, the Initial Securities and, when
and if issued as provided in the Registration Rights Agreement, the Exchange
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means all the agreements, charges, documents
and instruments governing or creating the security interests in the Collateral
for the benefit of the holders of the Securities, the Senior Notes, the Senior
Subordinated Notes and (except in respect of (iii) and (xi) below) the Bank
Credit Facility and shall in any event include (i) Security Sharing Agreement;
(ii) Land and Building Mortgage Agreement; (iii) Pledge of Offshore Reserve
Account and the Notes DSR Account; (iv) Machinery Pledge Agreement; (v)
Machinery Mortgage Agreement; (vi) Assignment or designation as co-beneficiary
of Insurance; (vii) Conditional Assignment of Project Documents; (viii)
Conditional Assignment or Pledge of the Note Sinking Fund Account and Revenue
Account; (ix) Conditional Assignment or Pledge of the Operating Account and
Revenue Account; (x) Pledge of Permitted Investments; (xi) Pledge of all issued
and outstanding shares of each of the Issuers; (xii) Assignment of Performance
Bonds; and (xiii) any other documents relating to the Collateral and executed in
connection with the foregoing.
"Security Sharing Agreement" means the Security Sharing Agreement
dated as of the Issue Date among the Issuers, the Company, certain Thai
financial institutions party to the Bank Credit Facility, the Trustee, the
trustees in respect of the Senior Notes and the Senior Subordinated Notes, the
Book-Entry Depositary, the book-entry depository for the Senior Notes and the
Senior Subordinated Notes and the Collateral Agent.
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company.
"Senior Guaranty" means the Guarantee of the Senior Notes by the
Company pursuant to, and as described in, the Senior Note Indenture.
"Senior Indebtedness" means, with respect to any Person, (i)
Indebtedness Incurred pursuant to the Credit Facilities, (ii) the Senior Notes,
(iii) the Senior Subordinated Notes and (iv) all indebtedness of such Person,
including interest thereon (including Post-Petition Interest), whether
outstanding on the Issue Date or thereafter Incurred, unless in the instrument
creating or evidencing the same or pursuant to which the same is outstanding it
is expressly provided that such obligations are not superior in right of payment
to the Securities or the applicable Guaranty; provided, however, that Senior
Indebtedness shall not include (1) any obligation of such Person to any
Subsidiary, (2) any liability for Federal, state, local or other taxes owed or
owing by such Person, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guaranties
thereof or instruments evidencing
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such liabilities), (4) any Indebtedness of such Person (other than the
Securities) which is expressly subordinate in right of payment to any other
Indebtedness of such Person, including any Subordinated Indebtedness, (5) any
obligations with respect to any Capital Stock, or (6) any Indebtedness Incurred
in violation of the Indenture.
"Senior Notes" means the 12% Senior Mortgage Notes Due 2006 of the
Issuers.
"Senior Note Indenture" means the indenture of even date herewith
entered into in connection with the issuance of the Senior Notes, among the
Issuers, the Company and the Trustee.
"Senior Subordinated Guaranty" means, the Guarantee of the Senior
Subordinated Notes by the Company pursuant to the Senior Subordinated Note
Indenture."
"Senior Subordinated Notes" means the 12 1/4% Senior Subordinated
Mortgage Notes due 2008.
"Senior Subordinated Note Indenture" means the indenture of even
date herewith entered into in connection with the Senior Subordinated Notes
among the Issuers, the Company and the Trustee.
"Shareholders' Agreement" means the agreement dated as of the Issue
Date between Steel Dynamics, Inc., Enron Corp., McDonald & Company Securities,
Inc., Sawardi Horrungruang and N.T.S. Steel Group (Plc.) Co., Ltd., and the
Company.
"Specified Senior Indebtedness" means, with respect to the Company
and its Restricted Subsidiaries, (i) Indebtedness of the Company or such
Restricted Subsidiaries represented by the Senior Notes, the Senior Subordinated
Notes and under the Credit Facilities and refinancings thereof with Senior
Indebtedness permitted by the Senior Note Indenture and the Subordinated Note
Indenture and under the Credit Facilities, as the case may be, to the extent the
instrument governing such Refinancing Indebtedness states that it shall be
Specified Senior Indebtedness, and (ii) Indebtedness of the Company Incurred
pursuant to the Senior Guaranty and the Senior Subordinated Guaranty, in the
case of each clause (i) and (ii), together with accrued and unpaid interest
(including Post-Petition Interest) in respect of such Indebtedness.
"Sriracha Harbor Agreement" means the agreement between Sriracha
Harbor Public Company Limited and the Company, relating to the use by the
Company, of the Sriracha Harbor port to be dated as of the Issue Date.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision.
"Subordinated Indebtedness" means Indebtedness of the Company, the
Issuers or a Restricted Subsidiary that is subordinated in right of payment to
the Senior Notes, or any applicable Guarantee of the Senior Notes; provided,
however, that the term "Subordinated
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Indebtedness" shall be deemed not to include the Senior Subordinated Notes, or
any applicable Guarantee of the Senior Subordinated Notes.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other Interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person. Unless otherwise specified herein, each reference
to a Subsidiary shall refer to a Subsidiary of the Issuers and the Company.
"Thai GAAP" means generally accepted accounting principals in
Thailand as in effect as of the date of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that, in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendments, the Trust Indenture
Act of 1939 as so amended.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the Private Placement Legend.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer this Indenture.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"U.S. GAAP" means generally accepted accounting principles in the
United States as in effect as of the date of the Indenture. All ratios and
computations based on U.S. GAAP contained in the Indenture shall be computed in
conformity with U.S. GAAP.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
(other than the Issuers) that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the manner provided
below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Lien
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on any property of, the Company or any other Subsidiary of the Company that is
not a Subsidiary of the Subsidiary to be so designated; provided, however, that
either (A) the Subsidiary to be so designated has total assets of $1,000 or less
or (B) if such Subsidiary has assets greater than $1,000, such designation would
be permitted in Section 4.04.
"Vendor Financing" means financing made available by vendors to
finance equipment and/or plant included in the Mill on extended pay terms.
"Wholly-Owned Restricted Subsidiary" means a Restricted Subsidiary
all the outstanding Capital Stock (other than directors' qualifying shares) of
which are owned by the Company or another Wholly-Owned Restricted Subsidiary.
"Working Capital Credit Facility" means the Credit Facility dated as
of the Issue Date between the Company and Banque Nationale de Paris, as such
agreement may be amended, supplemented, or otherwise modified in writing from
time to time (but in no event shall the definition of Working Capital Credit
Facility include any amendment, supplement or other modification increasing the
amount of borrowings available to the Company and its subsidiaries thereunder).
"Working Capital Requirements" means general corporate purposes,
including operating expenses, debt service and the Co-Gen Investments.
SECTION 1.02 Other Definitions.
Defined in
Term Section
"Additional Amounts" ....................................... 4.20(a)
"Affiliate Transaction" .................................... 4.13
"Agent Members" ............................................ 2.13(a)
"Authorized Agent" ......................................... 12.11(b)
"Bankruptcy Law" ........................................... 6.01
"bankruptcy provision" ..................................... 6.01
"Book-Entry Depositary" .................................... 2.13
"Collateral" ............................................... 10.02
"Company Collateral" ....................................... 10.01
"covenant defeasance option" ............................... 8.01(b)
"Custodian" ................................................ 6.01
"Definitive Registered Securities" ......................... 4.17(a)
"Event of Default" ......................................... 6.01
"IAIs" ..................................................... 2.01(b)
"IAI Global Security" ...................................... 2.01(b)
"legal defeasance option" .................................. 8.01(b)
"Legal Holiday" ............................................ 12.08
"Obligations" .............................................. 13.01
"Offer" .................................................... 4.06(b)
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"Offer Amount" ............................................. 4.06(c)
"Offer Period" ............................................. 4.06(c)
"Paying Agent" ............................................. 2.03
"Purchase Date" ............................................ 4.06(c)
"QIB Global Security" ...................................... 2.01(b)
"QIBs" ..................................................... 2.01(b)
"Reports" .................................................. 4.02
"Registrar" ................................................ 2.03
"Regulation S" ............................................. 2.01(b)
"Regulation S Global Security" ............................. 2.01(b)
"Restricted Payment" ....................................... 4.04
"Stage III Tender" ......................................... 4.07
"Successor Company" ........................................ 5.01
"Taxes" .................................................... 4.20(a)
"U.S. Global Securities" ................................... 2.01(b)
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers, the Company
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
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 Thai GAAP or U.S. GAAP;
(3) "or" is not exclusive;
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(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the Issuers dated such date prepared
in accordance with Thai GAAP or U.S. GAAP and accretion of principal on
such security shall be deemed to be the Incurrence of Indebtedness;
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater; and
(9) unless otherwise indicated, all references in this Indenture to
"$" mean United States dollars and all references to "Baht" mean Thai
Baht.
SECTION 1.05 Business Day Certificate. Within 15 days after the
Issue Date and thereafter, within 15 days prior to the end of each calendar year
while this Indenture remains in effect (with respect to the succeeding calendar
years), the Issuers shall, or shall cause the Collateral Agent to, deliver to
the Trustee an Officers' Certificate (or a written notice in the case of the
Collateral Agent) specifying the days on which banking institutions in Bangkok,
Thailand are authorized or required by law to close.
ARTICLE II
The Securities
SECTION 2.01 Form and Dating. (a) The Initial Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article II. Any Exchange Securities
and the Trustee's certificate of authentication shall be substantially in the
form of Exhibit B, which is incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article II. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Issuers or the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Issuers). Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in Exhibits A and B are part of the terms
of this Indenture. The Securities shall be issuable only in registered form
without coupons and only in denominations of $1 and integral multiples of US $1.
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(b) Global Securities. The Initial Securities are being offered and
sold by the Issuers to the Purchasers pursuant to the Purchase Agreements.
Initial Securities offered and sold to the Purchasers, as provided
in the Purchase Agreements, shall be issued initially in the form of a single
Global Security in global form without interest coupons substantially in the
form of Exhibit A hereto, with such applicable legends as are set forth in
Exhibit A hereto, except as otherwise permitted herein (the "IAI Global
Security"). On the Issue Date a similar Global Security, (the "144A Global
Security" and, together with the IAI Global Security, the "U.S. Global
Securities") in global form shall also be issued to accommodate offers and sales
of Securities in reliance on Rule 144A. The U.S. Global Securities shall be
deposited initially with the Book-Entry Depositary pursuant to the terms of the
Depositary Agreement, duly executed by the Issuers and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of each U.S.
Global Security may from time to time be increased or decreased by adjustments
made by annotation or endorsement thereon by the Trustee on behalf of the
Issuers (or by the issue of a further U.S. Global Security of the same type), in
connection with a corresponding decrease or increase in the aggregate principal
amount of the other U.S. Global Security or the Regulation S Global Security or
in consequence of the issue of Definitive Securities or additional U.S.
Securities, as hereinafter provided. The U.S. Global Securities and all other
Initial Securities evidencing the debt, or any portion of the debt, initially
evidenced by such U.S. Global Securities, other than Securities transferred or
exchanged upon certification as provided in Section 2.14(a)(i)(1), (2) or (6),
shall collectively be referred to herein as the "U.S. Securities".
Initial Securities offered and sold in reliance on Regulation S as
provided in the Purchase Agreements, shall be issued initially in the form of a
single Global Security in global form without interest coupons substantially in
the form of Exhibit A hereto, with such applicable legends as are set forth in
Exhibit A hereto, except as otherwise permitted herein, which shall be deposited
initially with the Book-Entry Depositary pursuant to the terms of the Debenture
Depositary Agreement, duly executed by the Issuers and authenticated by the
Trustee as hereinafter provided. Such Global Security shall be referred to
herein as the "Regulation S Global Security". The aggregate principal amount of
the Regulation S Global Security may from time to time be increased or decreased
by adjustments made by annotation or endorsement thereon by the Trustee on
behalf of the Issuers (or by the issue of a further Regulation S Global
Security), in connection with a corresponding decrease or increase in the
aggregate principal amount of a U.S. Global Security or in consequence of the
issue of Definitive Securities or additional Regulation S Securities, as
hereinafter provided. The Regulation S Global Security and all other Initial
Securities that are not U.S. Global Securities shall collectively be referred to
herein as the "Regulation S Securities".
SECTION 2.02 Execution and Authentication. One or more Officers
shall sign the Securities for the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
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A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery (1)
Initial Securities for original issue in an aggregate principal amount at
maturity of $53,133,016, and (2) Exchange Securities for issue only in a
Registered Exchange Offer, pursuant to the Exchange and Registration Rights
Agreement for Initial Securities for a like principal amount of Initial
Securities exchanged pursuant thereto, in each case upon a written order of the
Issuers signed by one Officer thereof. Such order shall specify the amount of
the Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated, whether the Securities are to be Initial
Securities or Exchange Securities whether the Securities shall bear the Private
Placement Legend, or such other information as the Trustee may reasonably
request. The aggregate principal amount at maturity of Securities outstanding at
any time may not exceed $53,133,016 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuers to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by an authorized officer of the
Trustee, a copy of which shall be furnished to the Issuers, and the Trustee
shall notify the Holders of the name and address of any agent not a party to
this Indenture. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities 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 any
Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.03 Registrar and Paying Agent. The Issuers shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Issuers may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Issuers shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Issuers shall notify
the Trustee of the name and address of any such agent. The Issuers may remove
any Paying Agent, Registrar or co-registrar without prior notice to any Holder.
If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant
to Section 7.07.
The Issuers initially appoint the Trustee as Registrar and Paying
Agent in connection with the Securities.
The Issuers initially appoint The Depository Trust Company to act as
Depositary with respect to the Global Securities.
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The Issuers may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided, however,
that no such removal shall become effective until (1) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Issuers and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (2) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (1) above and shall otherwise comply with TIA ss.312(a).
The Registrar or Paying Agent may resign at any time upon written notice.
The Paying Agent shall comply with all withholding tax, information
reporting and backup withholding tax requirements under the United States
Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury
Regulations issued thereunder in respect of any payment on, or in respect of,
the Securities (including, without limitation, furnishing to the Holders and
collecting Internal Revenue Service ("IRS") Forms 1001, 4224, W-8 or W-9 (or any
successor forms), as the case may be, and filing IRS Forms 1042 and 1042-S with
respect thereto). As promptly as possible after the payment of any withholding
tax, the Paying Agent shall deliver to each Holder appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such Holders may reasonably request from time to time.
SECTION 2.04 Paying Agent to Hold Money in Trust. Prior to 10:00
A.M., New York City time, on each due date of the principal, interest and
Additional Amounts, if any, on any Security, the Issuers shall deposit with the
Paying Agent a sum sufficient to pay such principal, interest and Additional
Amounts, if any, then so becoming due. The Issuers shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest on the
Securities and shall notify the Trustee of any default by the Issuers in making
any such payment. The Issuers at any time may require a Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
Any money deposited with any Paying Agent in trust for the payment
of principal, interest or Additional Amounts, if any, on any Security and
remaining unclaimed for two years after such principal and interest has become
due and payable shall be paid to the relevant Issuer at its request; and the
Securityholders shall thereafter, as unsecured general creditors, look only to
the Issuers for payment thereof, and all liability of the Paying Agent with
respect to such money shall thereupon cease.
SECTION 2.05 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders and shall otherwise comply with
TIA ss.312(a). If the Trustee is not the Registrar, the Issuers shall furnish,
or cause the Registrar to furnish, to the Trustee, in writing at least five
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 Securityholders.
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SECTION 2.06 Transfer and Exchange. The Securities shall be issued
in registered form and the transfer of the Securities shall be registerable only
upon the surrender of a Security for registration of transfer. When a Security
is presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if its
requirements therefor are met. When Securities are presented to the Registrar or
a co-registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if its requirements therefor are met. To permit registration of
transfers and exchanges, the Issuers shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-registrar's request. The
Issuers may require payment by the Holder of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Issuers shall not be required to make and
the Registrar need not register transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days
before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Issuers, the Company, the Trustee, the Paying Agent, the Registrar
or any co-registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and, subject to the record date provisions of this
Indenture, interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Issuers,
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with any transfer
or exchange pursuant to Section 2.06 (other than in respect of the Exchange
Offer, except as otherwise provided in the Registration Rights Agreement).
All Securities issued upon any registration of transfer or exchange
pursuant to this Section 2.06 will evidence the same debt and will be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such registration of transfer or exchange.
SECTION 2.07 Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Security if the Trustee's
requirements therefor are met, such that the Holder (i) provides evidence to the
satisfaction of the Issuers or the Trustee within a reasonable time after such
Holder has notice of such loss, destruction or wrongful taking and the Registrar
does not register a transfer prior to receiving such notification, (ii) makes
such a request to the Issuers or the Trustee prior to the Security being
acquired by a bona fide purchaser and (iii) satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Issuers, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee
to protect the Issuers, the Trustee, the Paying Agent, the Registrar and any
co-registrar from any loss that any of them may suffer if a Security is
replaced. The Issuers and the Trustee may charge the Holder for their expenses
in replacing a Security. In the event any such mutilated, lost, destroyed or
wrongfully taken Security
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has become or is about to become due and payable, the Issuers in their
discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of the
Issuers.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.08 Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding because
the Issuers or an Affiliate of the Issuers holds the Security.
If a Security is replaced pursuant to Section 2.07, such replaced
Security ceases to be outstanding unless the Trustee and the Issuers receive
proof satisfactory to them that such replaced Security is held by a bona fide
purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may be,
and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after the date such Securities (or portions thereof) cease to be outstanding
and interest on them ceases to accrue.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Issuers or any of their Affiliates shall be disregarded, except
that, for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which a Trust
Officer of the Trustee knows or has reason to know are so owned shall be
disregarded.
SECTION 2.09 Temporary Securities. Until Definitive Securities are
ready for delivery, the Issuers may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
Definitive Securities but may have variations that the Issuers consider
appropriate for temporary Securities. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate Definitive Securities and
deliver them in exchange for temporary Securities at the office or agency of the
Issuers, without charge to the Holder.
SECTION 2.10 Cancellation. The Issuers at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to the Registrar or
Paying Agent for registration of transfer, exchange, payment or cancellation.
The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment or cancellation and shall dispose of
canceled Securities in accordance with its customary procedures unless otherwise
directed by written direction of an
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Officer of the Issuers. The Issuers may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for cancellation.
The Trustee shall not authenticate Securities in place of canceled Securities
other than pursuant to the terms of this Indenture.
SECTION 2.11 Defaulted Interest. If the Issuers default in a payment
of interest on the Securities, the Issuers shall pay the defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Issuers shall pay the defaulted interest to, in the case of
Definitive Securities, the Persons who are Securityholders or, in the case of a
Global Security, to the Holder thereof on a subsequent special record date. The
Issuers shall fix or cause to be fixed any such special record date and payment
date to the reasonable satisfaction of the Trustee and shall promptly mail or
cause to be mailed to each Securityholder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
The Issuers may make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Issuers to
the Trustee of the proposed payment pursuant to this paragraph, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.12 CUSIP Numbers. The Issuers in issuing the Securities
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, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities 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 Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Issuers will promptly notify the Trustee of any
change in the CUSIP numbers.
SECTION 2.13 Book-Entry Provisions for Global Securities. (a) Each
Global Security initially shall be registered in the name of The Chase Manhattan
Bank as Book-Entry Depositary ("Book-Entry Depositary") pursuant to the terms of
the Debenture Depositary Agreement. The Book-Entry Depositary will issue one or
more certificateless depositary interests to the Depositary. Upon confirmation
by the Depositary that the Book-Entry Depositary has custody of the Global
Security and upon acceptance by the Depositary of the certificateless depositary
interest pursuant to the applicable letter of representations, the Depositary
will record a beneficial interest in such Global Security. Each Global Security
shall be delivered to the Book-Entry Depositary. Beneficial interests in the
Global Securities may be held indirectly through members of or participants in
("Agent Members") the Depositary (including Cedel and Euroclear in the case of
the Regulation S Global Security).
Agent Members shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depositary, or the Book-Entry
Depositary, or under such Global Security, and the Book-Entry Depositary may be
treated by the Issuers, the Company, the Trustee and any agent of the Issuers,
the Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever, except as otherwise provided herein. Notwithstanding the
foregoing, nothing herein shall prevent the Issuers, the Company, the Trustee or
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any agent of the Issuers, the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Book-Entry
Depositary or shall impair, as between the Book-Entry Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of a non-certificated depositary interest in a Global
Security shall be limited to transfers of such non-certificated depositary
interest in a Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary (and Agent Member, if applicable) and the provisions of
Sections 2.06 and 2.14. Definitive Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security if (i) the Depositary notifies the Issuers that it is unwilling or
unable to continue as Depositary for such Global Security or the Depositary
ceases to be a clearing agency registered under the Exchange Act, at a time when
the Depositary is required to be so registered in order to act as Depositary,
and in each case a successor depositary is not appointed by the Issuers within
90 days of such notice, or (ii) Book-Entry Depositary notifies the Issuers that
it is unwilling or unable to continue as Book-Entry Depositary and a successor
book-entry depositary is not appointed by the Issuers within 90 days of such
notice or (iii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depositary or the Trustee to permit
such transfers.
(c) Any Initial Securities which are presented to the Registrar for
exchange pursuant to the Exchange Offer shall be exchanged for Exchange
Securities of equal principal amount upon surrender to the Registrar of the
Initial Securities to be exchanged; provided, however, that the Initial
Securities so surrendered for exchange shall be duly endorsed and accompanied by
a letter of transmittal or written instrument of transfer in form satisfactory
to the Issuers, the Trustee and the Registrar duly executed by the Holder
thereof or his attorney who shall be duly authorized in writing to execute such
document. Whenever any Initial Securities are so surrendered for exchange, the
Issuers shall execute, and the Trustee shall authenticate and deliver to the
Holder the same aggregate principal amount of Exchange Securities as those
Initial Securities that have been surrendered.
(d) The registered holder of a Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities. Whenever all of a
Global Security is exchanged for one or more Definitive Securities, it shall be
surrendered by the Holder thereof to the Trustee for cancellation. Whenever a
part of a Global Security is exchanged for one or more Definitive Securities the
Global Security shall be surrendered by the Holder thereof to the Trustee who
shall cause an adjustment to be made to Schedule A of such Global Security such
that the principal amount of such Global Security will be equal to the portion
of such Global Security not exchanged and shall thereafter return such Global
Security to such Holder. All Definitive Securities issued in exchange for a
Global Security or any portion thereof shall be registered in such names as the
Depositary, after conferring with the Registrar, shall instruct the Trustee.
Every Security authenticated and delivered in exchange for or in lieu of a
Global Security, or any portion thereof, pursuant to Section 2.14(a), 2.14(b) or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security or a
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Definitive Security. A Global Security may not be exchanged for a Definitive
Security other than as provided in this Section 2.13(b).
(e) Holders of Initial Securities (or holders of interests therein)
and prospective purchasers designated by such Holders (or holders of interests
therein) will have the right to obtain from the Issuers or the Company upon
request by such Holders (or holders of interests therein) or prospective
purchasers, during any period in which the Issuers or the Company is not subject
to Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant
to 12g3-2(b) under the Exchange Act, the information required by paragraph
d(4)(i) of Rule 144A in connection with any transfer or proposed transfer of
such Securities.
SECTION 2.14 Special Transfer Provisions. (a) Provisions Applicable
Solely to Initial Securities. The following procedures and restrictions shall
not apply with respect to Initial Securities transferred or exchanged for the
account of a Person who is not an Affiliate of the Issuers at the time of the
transfer or exchange and has not been an Affiliate during the preceding three
months, provided a period of at least two years has elapsed since the later of
the date the Initial Securities were acquired from the Issuers or from an
Affiliate of the Issuers.
(i) Notwithstanding any other provisions of this Indenture or the
Securities, transfers and exchanges of interests in an Initial Global
Security of the kinds described in clauses (1) through (5) below and
exchanges of interests in Initial Global Securities or of other Initial
Securities as described in clauses (6) through (9) below, shall be made
only in accordance with this Section 2.14(a), and all transfers of an
interest in the Regulation S Global Security shall comply with clause (10)
below.
(1) Transfers of U.S. Global Security to Regulation S Global
Security During the Restricted Period. If the holder of a beneficial
interest in a U.S. Global Security wishes at any time during the
Restricted Period to transfer such interest to a Person who wishes
to take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected, subject
to the rules and procedures of the Depositary, the Euroclear
Operator and Cedel, to the extent applicable (the "Applicable
Procedures"), only in accordance with the provisions of this Section
2.14(a)(i)(1). Upon receipt by the Book-Entry Depositary of a
certificate in substantially the form set forth in Exhibit C given
by the transferor, the Book-Entry Depositary shall present the
Initial Global Securities to the Trustee on behalf of the Issuers to
reduce the principal amount of the U.S. Global Security and to
increase the principal amount of the Regulation S Global Security,
by the principal amount of the beneficial interest in the U.S.
Global Security to be so transferred, by annotation thereon.
(2) Transfers of U.S. Global Security to Regulation S Global
Security After the Expiration of the Restricted Period. If the
holder of a beneficial interest in the U.S. Global Security wishes
at any time after the expiration of the Restricted Period to
transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this
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Section 2.14(a)(i)(2). Upon receipt by the Book-Entry Depositary of
a certificate in substantially the form set forth in Exhibit D given
by the transferor, the Book-Entry Depositary shall present the
Initial Global Securities to the Trustee on behalf of the Issuers to
reduce the principal amount of the U.S. Global Security, and to
increase the principal amount of the Regulation S Global Security,
by the principal amount of the beneficial interest in the U.S.
Global Security to be so transferred, by annotation thereon.
(3) Transfers of Regulation S Global Security to U.S. Global
Security. If the holder of a beneficial interest in the Regulation S
Global Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a
beneficial interest in a U.S. Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance
with this Section 2.14(a)(i)(3). Upon compliance with the Applicable
Provisions, the Book-Entry Depositary shall present the Initial
Global Securities to the Trustee on behalf of the Issuers to reduce
the principal amount of the Regulation S Global Security, and to
increase the principal amount of the applicable U.S. Global
Security, by the principal amount of the beneficial interest in the
Regulation S Global Security to be so transferred, by annotation
thereon; provided, however, that, prior to the expiration of the
Restricted Period, such transfer shall be made only if, in addition,
the Book Entry Depositary has received a certificate in
substantially the form set forth in Exhibit E given by the
transferor (and, in the case of a transfer to the IAI Global
Security, a signed letter from the transferee in substantially the
form set forth in Annex A thereto)
(4) Transfers of IAI Global Security to Rule 144A Global
Security. If the holder of a beneficial interest in the IAI Global
Security (whether during the Restricted Period or after the
expiration of the Restricted Period) wishes to transfer such
interest to a Person who wishes to take delivery thereof in the form
of a beneficial interest in the Rule 144A Global Security, such
transfer may be effected, subject to the Applicable Procedures, only
in accordance with this Section 2.14(a)(i)(4). Upon receipt by the
Book-Entry Depositary of a certificate in substantially the form set
forth in Exhibit F given by the transferor, the Book-Entry
Depositary shall present the Initial Global Securities to the
Trustee on behalf of the Issuers to reduce the principal amount of
the IAI Global Security from which such transfer is to be made, and
to increase the principal amount of the Rule 144A Global Security,
by the principal amount of the beneficial interest in the IAI Global
Security to be so transferred, by annotation thereon.
(5) Transfers of Rule 144A Global Security to IAI Global
Security. If the holder of a beneficial interest in the Rule 144A
Global Security (whether during the Restricted Period or after the
expiration of the Restricted Period) wishes to transfer such
interest to a Person who wishes to take delivery thereof in the form
of a beneficial interest in the IAI Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in
accordance with this Section 2.14(a)(i)(5). Upon receipt by the
Book-Entry Depositary of a certificate
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in substantially the form set forth in Exhibit G given by the
transferor and a signed letter from the transferee substantially in
the form set forth in Annex A thereto, the Book-Entry Depositary on
behalf of the Issuers shall present the Initial Global Securities to
the Trustee to reduce the principal amount of the Rule 144A Global
Security from which such transfer is to be made, and to increase the
principal amount of the IAI Global Security, by the principal amount
of the beneficial interest in the Rule 144A Global Security to be so
transferred, by annotation thereon.
(6) Exchanges of U.S. Global Security for Regulation S Global
Security. If the holder of a beneficial interest in a U.S. Global
Security wishes at any time to exchange such interest for a
beneficial interest in the Regulation S Global Security, such
exchange may be effected, subject to the Applicable Procedures, only
in accordance with the provisions of this Section 2.14(a)(i)(6).
Upon receipt by the Book-Entry Depositary of a certificate in
substantially the form set forth in Exhibit H, given by the holder
of the beneficial interest, the Book-Entry Depositary shall present
the Initial Global Securities to the Trustee on behalf of the
Issuers to reduce the principal amount of such U.S. Global Security,
and to increase the principal amount of the Regulation S Global
Security, by the principal amount of the beneficial interest in such
U.S. Global Security to be so exchanged, by annotation thereon.
(7) Exchanges of Regulation S Global Security for U.S. Global
Security. If the holder of a beneficial interest in the Regulation S
Global Security wishes at any time to exchange such interest for a
beneficial interest in a U.S. Global Security, such exchange may be
effected, subject to the Applicable Procedures, only in accordance
with the provisions of this Section 2.14(a)(i)(7). Upon receipt by
the Book-Entry Depositary of a certificate in substantially the form
set forth in Exhibit I, given by the holder of the beneficial
interest, the Book-Entry Depositary shall present the Initial Global
Securities to the Trustee on behalf of the Issuers or its agent to
reduce the principal amount of the Regulation S Global Security, and
to increase the principal amount of the applicable U.S. Global
Security, by the principal amount of the beneficial interest in the
Regulation S Global Security to be so exchanged, by annotation
thereon.
(8) Exchanges of U.S. Global Security for another U.S. Global
Security. If the holder of a beneficial interest in a U.S. Global
Security wishes at any time to exchange such interest for a
beneficial interest in the other U.S. Global Security, such exchange
may be effected, subject to the Applicable Procedures, only in
accordance with the provisions of this Section 2.14(a)(i)(8). Upon
receipt by the Book-Entry Depositary of a certificate in
substantially the form set forth in Exhibit J given by the holder of
the beneficial interest (and including, in the case of an exchange
into the IAI Global Security, a signed letter substantially in the
form set forth in Annex A thereto), the Book-Entry Depositary shall
present the Initial Global Securities to the Trustee on behalf of
the Issuers to reduce the principal amount of the U.S. Global
Security to be exchanged, and to increase the principal
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amount of the other U.S. Global Security, by the principal amount of
the beneficial interest in the U.S. Global Security to be so
exchanged, by annotation thereon.
(9) Other Exchanges. In the event that an Initial Global
Security or any portion thereof is exchanged for Initial Securities
in definitive form pursuant to Section 2.13(b) hereof, such
Definitive Securities may in turn be exchanged (on transfer or
otherwise) for other Definitive Securities and only in accordance
with such procedures, which shall be substantially consistent with
the provisions of clauses (1) through (8) above and (10) below)
(including the certification requirements intended to ensure that
transfers and exchanges of beneficial interests in an Initial
Security comply with Rule 144A or Regulation S, as the case may be)
and any Applicable Procedure as may from time to time be adopted by
the Issuers and the Registrar.
(10) Interests in Regulation S Global Security to be Held
Through the Euroclear Operator or Cedel. Until the expiration of the
Restricted Period, interests in the Regulation S Global Security may
be held only through the Euroclear Operator and Cedel; provided,
however, that this clause (10) shall not prohibit any transfer in
accordance with Section 2.14(a)(i)(3).
(ii) Each Initial Security issued hereunder shall, upon issuance,
bear the legend set forth on the form of the Security attached hereto as
Exhibit A and such legend shall not be removed from such Initial Security
except as provided in the next sentence. The legend required for an
Initial Security may be removed from an Initial Security if there is
delivered to the Issuers such satisfactory evidence, which may include an
opinion of independent counsel licensed to practice law in the State of
New York, as may be reasonably required by the Issuers, that neither such
legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Security will not violate the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the direction of the Issuers, shall authenticate
and deliver in exchange for such Security another Security or Securities
having an equal aggregate principal amount that does not bear such legend.
If such a legend required for an Initial Security has been removed from an
Initial Security as provided above, no other Security issued in exchange
for all or any part of such Security shall bear such legend, unless the
Issuers have reasonable cause to believe that such other Security is a
"restricted security" within the meaning of Rule 144 and instructs the
Trustee to cause a legend to appear thereon.
(b) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it shall transfer such Security only as
provided in this Indenture.
The Registrar shall retain in accordance with its customary
procedures copies of all letters, notices and other written communications
received pursuant to Section 2.14. The Issuers shall have the right to inspect
and make copies of all such letters, notices or other written
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communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
ARTICLE III
Redemption
SECTION 3.01 Notices to Trustee. If the Issuers elect to redeem
Securities pursuant to paragraph 5 of the Securities, they shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Issuers shall give each notice to the Trustee provided for in
this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Issuers to the effect that such redemption will comply with
the conditions herein. Any such notice may be canceled at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect.
SECTION 3.02 Selection of Securities to Be Redeemed. If a partial
redemption is made pursuant to Section 3.07(a) or with the proceeds of a Public
Equity Offering pursuant to Section 3.07(b), the Trustee shall select the
Securities to be redeemed only on a pro rata basis (to the extent practicable)
or by lot, unless such method is otherwise prohibited by applicable legal and
securities exchange requirements, if any. The Trustee shall make the selection
from outstanding Securities not previously called for redemption. The Trustee
may select for redemption portions of the principal of Securities that have
denominations larger than $1. Securities and portions of them the Trustee
selects shall be in amounts of $1 or a whole multiple of $1. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Issuers
promptly (and, in any event, at least 30 days prior to redemption) of the
Securities or portions of Securities to be redeemed.
SECTION 3.03 Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities, the Issuers shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
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(5) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers and principal amounts of the particular Securities
to be redeemed;
(6) that, unless the Issuers default in making such redemption
payment, interest on Securities (or portion thereof) called for redemption
ceases to accrue on and after the redemption date;
(7) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed;
(8) the CUSIP number, if any, printed on the Securities being
redeemed; and
(9) 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
Securities.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense. In such event, the
Issuers shall provide the Trustee with the information required by this Section
at least 40 days (unless a shorter period shall be acceptable to the Trustee)
prior to the redemption date.
SECTION 3.04 Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest, if any, to the redemption
date; provided that installments of interest due on an interest payment date
that is on or prior to the redemption date shall be payable to the
Securityholder of the redeemed Securities registered on the relevant record
date. Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05 Deposit of Redemption Price. Prior to 10:00 A.M., New
York City time, on the Business Day immediately preceding the redemption date,
the Issuers shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed on the
redemption date other than Securities or portions of Securities called for
redemption that have been delivered by the Issuers to the Trustee for
cancellation.
SECTION 3.06 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Issuers shall execute and the Trustee
shall authenticate for the Holder (at the Issuers' expense) a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07 Optional Redemption. (a) Except as set forth in the
next two paragraphs, the Securities may not be redeemed prior to February 1,
2003. On and after that date, the Issuers may redeem the Securities in whole at
any time or in part from time to time at the following redemption prices
(expressed in percentages of principal amount at maturity), plus accrued
interest to the redemption date (subject to the right of Holders of record on
the relevant
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record date to receive interest due on the relevant Interest Payment Date), if
redeemed during the 12-month period beginning on or after February 1 of the
years set forth below:
Redemption
Period Price
2003 106.3750%
2004 104.2500
2005 103.1875
2006 and thereafter 100.0000%
(b) Notwithstanding the foregoing, at any time prior to February 1,
2001, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount at maturity of Securities with the net cash proceeds
of one or more Public Equity Offerings, at a redemption price (expressed as a
percentage of principal amount at maturity thereof) of 112.75% plus accrued
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date); provided, however, that after any such redemption the
aggregate principal amount at maturity of the Securities outstanding must equal
or exceed $35,000,000.
(c) The Securities may be redeemed at the option of the Issuers, in
whole but not in part, or paid in full but not in part prior to maturity at the
option of the Company, upon not less than 30 nor more than 60 days' notice given
as provided in Section 3.03, at any time at 103% of the Accreted Value thereof,
plus accrued and unpaid interest to the date fixed for such payment if, as a
result of any change in or amendment to the laws, regulations or governmental
policy having the force of law of the Cayman Islands or Thailand (or of any
political subdivision or taxing authority thereof or therein) or any execution
of or amendment to, any treaty or treaties affecting taxation of which the
Cayman Islands or Thailand (or such political subdivision or taxing authority)
is a party, which becomes effective on or after the date of the Indenture (i)
(A) the Issuers are required, or would be required on the next succeeding
Interest Payment Date, to pay Additional Amounts in respect of payments on the
Securities in excess of the 15% withholding requirement as of the Closing Date
as a result of the imposition of Taxes imposed by the Cayman Islands or Thailand
(or any political subdivision or taxing authority of either jurisdiction); (B)
the Company is, or on the next succeeding interest payment date would be, unable
for reasons outside of its control, to procure payment by the Issuers and, with
respect to any payment due, or to become due, under the Securities or the
Guaranty, the Company is required, or would be required on the next succeeding
Interest Payment Date, to pay Additional Amounts as a result of the imposition
of Taxes by the Cayman Islands or Thailand or (C) with respect to any payment to
an Issuer to enable an Issuer to make any payments under the Securities, the
Company or NSM Cayman is, or on the next Interest Payment Date would be,
required to deduct or withhold Taxes imposed by the Cayman Islands or Thailand
(or any political subdivision or taxing authority of either jurisdiction) and
(ii) the payment of such Additional Amounts cannot be avoided by the use of any
reasonable measures available to the Issuers or the Company that do not require
undue effort or costs (including, without limitation, the Company making
payments directly to holders under the Guaranty). In addition, the Issuers or
the Company, as the case may be, will also pay to holders on the redemption date
any Additional Amounts which would otherwise be payable;
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provided, however, that no such notice of redemption shall be given earlier than
90 days prior to the earliest date on which the Issuers or the Company, as the
case may be, would be obligated to pay such Additional Amounts if a payment in
respect of the Securities or a Guaranty were then due.
Prior to the publication of the notice of redemption in accordance
with the foregoing, the Issuers or the Company shall deliver to the Trustee an
Officers' Certificate stating that (x) the Issuers are or the Company is
entitled to effect such redemption based on a written opinion of counsel or
written advice of a nationally recognized independent tax counsel, such opinion
or advice being reasonably acceptable to the Trustee, that the condition
referred to in either of subclauses (A) or (B) or (C) of clause (i) of the
immediately preceding paragraph is satisfied as a result of such change,
amendment or executed or amended treaty and (y) the condition described in (ii)
of the immediately preceding paragraph is satisfied. Such notice, once delivered
by the Issuers or the Company to the Trustee, will be irrevocable.
ARTICLE IV
Covenants
SECTION 4.01 Payment of Securities. The Issuers shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Issuers shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02 Commission Reports. The Company and the Issuers will
furnish the Trustee and provide to the holders of the Securities, within 15 days
after it files them with the Commission, copies of the reports (the "Financial
Statements") and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Company and the Issuers file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act ("Reports"). In
the event that the Company and the Issuers are not required to file such reports
with the Commission pursuant to the Exchange Act, the Issuers will nevertheless
deliver Exchange Act information (including quarterly, annual and periodic
reports) to the holders of the Securities within 15 days after they would have
been required to file it with the Commission.
SECTION 4.03 Limitation on Indebtedness. (a) Neither the Issuers or
the Company shall Incur, nor shall the Company permit any Restricted Subsidiary
to Incur, directly or
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indirectly, any Indebtedness on or after the Issue Date unless on the date of
such Incurrence and after giving effect thereto the Consolidated Coverage Ratio
would be greater than 3.0:1.0.
(b) Notwithstanding the foregoing paragraph (a), the Issuers or the
Company may Incur on or after the Issue Date the following Indebtedness:
(i) Indebtedness of the Company Incurred pursuant to the Credit
Facilities;
(ii) Indebtedness represented by the Securities and the Notes;
(iii) Indebtedness of the Company Incurred pursuant to Vendor
Financing; provided, however, that the aggregate principal amount of all
Vendor Financing Incurred pursuant to this clause (iii) (other than any
such Indebtedness pursuant to Existing Arrangements) does not exceed
U.S.$10 million at any time outstanding;
(iv) Indebtedness of the Issuers represented by Capitalized Lease
Obligations, or purchase money obligations, in each case Incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of the Mill or Refinancing Indebtedness
Incurred to refinance any such purchase price or cost of construction or
improvement, in each case (other than Refinancing Indebtedness) Incurred
no later than 90 days after the date of such acquisition or the date of
completion of such construction or improvement; provided, however, that
the principal amount of any Indebtedness Incurred pursuant to this clause
(iv) shall not exceed U.S.$10 million at any time outstanding;
(v) Indebtedness (A) in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Company to its
customers in the ordinary course of its business, (B) in respect of
performance bonds or similar obligations of the Company for or in
connection with pledges, deposits or payments made or given in the
ordinary course of business in connection with or to secure statutory,
regulatory or similar obligations, including obligations under health,
safety or environmental obligations and (C) arising from guarantees to
suppliers, lessors, licensees, contractors, franchisees or customers of
obligations (other than Indebtedness) incurred in the ordinary course of
business,
(vi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business in an amount
not to exceed U.S.$5 million at any time; provided that such Indebtedness
is extinguished within two business days of its Incurrence;
(vii) Indebtedness of the Company under the Working Capital Credit
Facility, as such facility may be amended and/or supplemented from time to
time; provided in each case that any indebtedness under such facility as
amended or supplemented is secured only by accounts receivable of the
Company,
(viii) Indebtedness of the Company consisting of Permitted Hedging
Obligations;
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(ix) Indebtedness outstanding on the Issue Date;
(x) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (ii), (vii), or (ix) or
this clause (x); and
(xi) Indebtedness in an aggregate principal amount which, together
with all other Indebtedness of the Company, the Issuers and the Restricted
Subsidiaries outstanding on the date of Incurrence (other than
Indebtedness permitted by paragraph (a) or clauses (i) through (x) above),
does not exceed U.S.$20 million.
(c) Notwithstanding the foregoing, neither the Issuers nor the
Company may incur any Indebtedness if such Indebtedness is expressly subordinate
in right of payment to any Specified Senior Indebtedness unless such
Indebtedness is expressly subordinated in right of payment to the Securities to
at least the same extent as such Specified Senior Indebtedness.
(d) Notwithstanding the foregoing, neither the Company nor the
Issuers shall Incur any Indebtedness pursuant to the foregoing paragraph (b) if
the proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Indebtedness unless such Indebtedness shall be subordinated to the
Securities to at least the same extent as such Subordinated Indebtedness.
(e) For purposes of determining compliance with the foregoing
covenant, (i) in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness described above, the Company, in its
sole discretion, will classify such item of Indebtedness at the time of its
Incurrence and shall only be required to include the amount and type of such
Indebtedness in one of the above clauses, and (ii) an item of Indebtedness may
be divided and classified in more than one of the types of Indebtedness
described above.
SECTION 4.04 Limitation on Restricted Payments. (a) Neither the
Issuers or the Company will, nor will the Company permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend or make any other distribution or
payment on or in respect of its Capital Stock (including dividends or
distributions of the Capital Stock of any Restricted Subsidiary), or make
any other payment to the direct or indirect holders (in their capacities
as such) of its Capital Stock (other than dividends or distributions
payable in shares of its Capital Stock (other than Disqualified Stock) or
in options, warrants or other rights to acquire such Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any of its Capital Stock or any Capital Stock of
any of its Affiliates (other than Capital Stock of any Wholly-Owned
Restricted Subsidiary or Capital Stock of a Person that is, or immediately
following such repurchase will become, a Wholly-Owned Restricted
Subsidiary) or options, warrants or other rights to acquire such Capital
Stock;
(iii) make any principal payment on, or repurchase, redeem, defease,
retire or otherwise acquire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated Indebtedness;
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(iv) Incur, create or assume any guarantee of Indebtedness of any
Affiliate of the Company (other than a Wholly-Owned Restricted Subsidiary
of the Company) except as permitted under the Section 4.03(a);
(v) make any Investment in any Person (other than any Permitted
Investments); or
(vi) designate any Restricted Subsidiary as an Unrestricted
Subsidiary;
(any of the payments described in paragraphs (i) through (vi) above, other than
any such action that is a Permitted Payment (as defined below), collectively,
"Restricted Payments") unless (x) with respect to payments to be made in the
period prior to December 31, 2001 the Company has achieved Profitable
Operations, and (y) at the time of and after giving effect to the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, as determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution), (1) no Default or Event of
Default shall have occurred and be continuing; (2) immediately before and
immediately after giving effect to such transaction on a pro forma basis, the
Issuers or the Company could Incur U.S.$1.00 of additional Indebtedness under
the provisions of Section 4.03(a); and (3) the aggregate amount of all such
Restricted Payments declared or made after the date of this Indenture does not
exceed the sum of:
(A) 50% of the aggregate cumulative Consolidated Net Income of the
Company and its Restricted Subsidiaries accrued during the period (treated
as a single accounting period) beginning on the first day of the Company's
fiscal quarter commencing prior to the date of this Indenture and ending
on the last day of the Company's last fiscal quarter ending prior to the
date of the Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, 100% of such loss (treating a
loss as a negative number));
(B) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company from the issuance or sale (other than to any of
its Restricted Subsidiaries) of its Capital Stock (other than Disqualified
Stock) or any options, warrants or rights to purchase such Capital Stock;
(C) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company (other than from any of its Restricted
Subsidiaries) upon the exercise of any options or warrants to purchase
Capital Stock (other than Disqualified Stock) of the Company; and
(D) U.S.$10 million.
(b) Notwithstanding the foregoing, and, in the case of clauses (i)
through (iv) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions will not prohibit the following actions
(clauses (i) through (iv) being referred to as "Permitted Payments"):
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(i) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would be permitted by the provisions of paragraph (a) of this
section and such payment will be deemed to have been paid on (and included
in the calculation of the amount of Restricted Payments) such date of
declaration for purposes of the calculation required by paragraph (a) of
this section;
(ii) the repurchase, redemption or other acquisition or retirement
of any shares of Capital Stock of the Company in exchange for (including
any such exchange pursuant to the exercise of a conversion right or
privilege in connection with which cash is paid in lieu of the issuance of
fractional shares or scrip), or out of the Net Cash Proceeds of a
substantially concurrent issue and sale for cash (other than to a
Restricted Subsidiary) of other Capital Stock (other than Disqualified
Stock) of the Company; provided that the Net Cash Proceeds from the
issuance of such shares of Capital Stock (other than Disqualified Stock)
are excluded from clauses (3)(B) and (3)(C) of paragraph (a) of this
section, and such repurchases, redemptions or acquisitions shall be
excluded from the calculation of the amount of Restricted Payments;
(iii) any repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the net proceeds of, a
substantially concurrent issuance and sale for cash (other than to any
Restricted Subsidiary of the Company) of any Capital Stock (other than
Disqualified Stock) of the Company; provided that the Net Cash Proceeds
from the issuance of such Capital Stock (other than Disqualified Stock)
are excluded from clauses (3)(B) and (3)(C) of paragraph (a) of this
section, and such repurchases, redemptions, defeasances, retirements or
acquisitions shall be excluded from the calculation of the amount of
Restricted Payments; and
(iv) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any
Subordinated Indebtedness (other than Disqualified Stock) or Pari Passu
Indebtedness (a "refinancing") through the issuance of new Subordinated
Indebtedness of the Company; provided that any such new Subordinated
Indebtedness (1) shall be in a principal amount that does not exceed the
principal amount so refinanced (or, if the Subordinated Indebtedness so
refinanced provides for an amount less than the principal amount thereof
to be due and payable upon a declaration or acceleration thereof, then
such lesser amount as of the date of determination), plus the amount of
any premium required to be paid in connection with such refinancing
pursuant to the terms of such refinanced Indebtedness and any reasonable
out-of-pocket expenses of the Company incurred in connection with such
refinancing; (2) has an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the Securities; (3) has a
Stated Maturity for its final scheduled principal payment later than the
Stated Maturity for the final scheduled principal payment of the
Securities and (4) is expressly subordinated in right of payment to the
Securities at least to the same extent as the Indebtedness to be
refinanced.
For purposes of this Section, if the Board of Directors designates a
Restricted Subsidiary as an Unrestricted Subsidiary, or a Restricted Subsidiary
is deemed to be so
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designated, a "Restricted Payment" shall be deemed to have been made in an
amount equal to the fair value of the Investment of the Company and its other
Restricted Subsidiaries in such Restricted Subsidiary as determined by the Board
of Directors with the concurrence of a majority of the Independent Directors
(there being at least one Independent Director), whose good-faith determination
shall be conclusive. If a particular Restricted Payment involves a noncash
payment, including a distribution of assets, then such Restricted Payment shall
be deemed to be in an amount equal to the fair market value of the noncash
portion of such Restricted Payment as determined by the Board of Directors,
whose good-faith determination shall be conclusive.
SECTION 4.05 Limitation on Liens. Neither the Issuers nor the
Company will affirm or permit to exist any Lien of any kind securing any Pari
Passu Indebtedness or Subordinated Indebtedness of the Issuers or the Company
(including any assumption, guarantee or other liability with respect thereto by
any Subsidiary) upon any property or assets (including any intercompany notes)
of the Issuers or the Company or any Subsidiary owned on the date of the
Indentures or acquired after the date of the Indentures, or any income or
profits therefrom, other than Permitted Liens.
SECTION 4.06 Limitation on Sales of Assets and Subsidiary Stock. (a)
The Company shall not, and shall not permit either of the Issuers or any
Restricted Subsidiary to, make any Asset Disposition unless (i) the Company, the
Issuers or such Restricted Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the fair market value, as determined in good
faith by the Company's Board of Directors (including as to the value of all
non-cash consideration), of the shares and assets subject to such Asset
Disposition, (ii) at least 80% of the consideration thereof received by the
Company, the Issuers or such Restricted Subsidiary is in the form of cash or
Cash Equivalents, (iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied: (A) if at the time of the Asset Disposition
the Company has not yet achieved Profitable Operations, pro rata to a mandatory
offer by the Issuers and the Company to purchase Securities at 101% of the
Accreted Value thereof on the date of purchase, plus accrued and unpaid interest
and Additional Amounts, if any, thereon, and the repayment of principal and
accrued and unpaid interest, if any, under the Bank Credit Facility and (B) if
at the time of the Asset Disposition the Company has achieved Profitable
Operations, at the Company's option either to (1) the investment in or
acquisition of Additional Assets within 365 days from the later of such Asset
Disposition and the receipt of such Net Available Cash or (2) pro rata to a
mandatory offer by the Issuers and the Company to purchase Securities at 101% of
the Accreted Value thereof on the date of purchase plus accrued and unpaid
interest and Additional Amounts, if any, thereon, and the repayment of principal
and accrued and unpaid interest, if any, under the Bank Credit Facility;
provided that the Issuers and the Company shall be required to purchase
Indebtedness pursuant to clause (2) to the extent of the balance of such Net
Available Cash after application in accordance with clause (1). The Issuers
shall not be required to make an offer to purchase Securities pursuant to this
covenant if the Net Available Cash available therefor (after application of the
proceeds as provided in clause (A)) is less than U.S.$10 million for any
particular Asset Disposition (which lesser amounts shall be carried forward for
purposes of determining whether an offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition). Notwithstanding the
foregoing provisions, Net Available Cash shall not be required to be applied in
accordance herewith to the extent that the aggregate
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Net Available Cash from all Asset Dispositions which are not applied in
accordance with this covenant at any time does not exceed U.S.$10 million.
Notwithstanding the foregoing, to the extent the Senior Note
Indenture and the Senior Subordinated Note Indenture limits the repurchase of
Securities, the Issuers shall not be required to make an offer hereunder for the
repurchase of Securities.
For the purposes of this Section 4.06, the following will be deemed
to be cash: (x) the assumption by transferee of Senior Indebtedness of the
Company, the Issuers or any Restricted Subsidiary and the release of the
Company, the Issuers or any Restricted Subsidiary from all liability on such
Senior Indebtedness in connection with such Asset Disposition and (y) securities
received by the Company, the Issuers or any Restricted Subsidiary from the
transferee that are promptly (and in any event within 60 days) converted by the
Company, the Issuers or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Securities pursuant to Section 4.06(a)(iii)(A) or (B)(2), the Issuers shall
be required to purchase Securities tendered by the Holders pursuant to an offer
by the Company for the Securities (the "Offer") at a purchase price (the
"Purchase Price") of 101% of the Accreted Value thereof on the date of purchase,
plus accrued and unpaid interest and Additional Amounts, if any, thereon to the
Purchase Date (as defined below) in accordance with the procedures (including
prorationing in the event of oversubscription) set forth in Section 4.06(c).
(c) (1) Promptly, and in any event within 10 days after the Issuers
become obligated to make an Offer, the Issuers shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Securities purchased by the
Issuers either in whole or in part (subject to prorationing as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of $1
of principal amount, at the Purchase Price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice
(the "Purchase Date") and shall contain such information concerning the business
of the Issuers which the Issuers in good faith believes will enable such Holders
to make an informed decision (which at a minimum shall include (i) the most
recently filed annual report (including audited consolidated financial
statements) of the Issuers and any other information provided by the Issuers to
its public shareholders generally on an annual basis, the most recently filed
Reports, and any current reports of the Issuers filed subsequent to such Report,
other than current reports describing Asset Dispositions otherwise described in
the offering materials (or corresponding successor reports), (ii) a description
of material developments in the Issuers' business subsequent to the date of the
latest of such reports, and (iii) if material, appropriate pro forma financial
information) and all instructions and materials necessary to tender Securities
pursuant to the Offer, together with the address referred to in clause (3).
(2) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided above, the Issuers shall deliver to the
Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer
Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (iii) the compliance
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of such allocation with the provisions of Section 4.06(a). On such date, the
Issuers shall also irrevocably deposit with the Trustee or with the Paying Agent
an amount equal to the Offer Amount to be invested at the written direction of
the Issuers in Cash Equivalents and to be held for payment in accordance with
the provisions of this Section. Upon the expiration of the period for which the
Offer remains open (the "Offer Period"), the Issuers shall deliver to the
Trustee for cancellation the Securities or portions thereof that have been
properly tendered to and are to be accepted by the Issuers. The Trustee (or the
Paying Agent, if not the Trustee) shall, on the Purchase Date, mail or deliver
payment to each tendering Holder in the amount of the purchase price. In the
event that the aggregate purchase price of the Securities delivered by the
Issuers to the Trustee is less than the Offer Amount, the Trustee shall deliver
the excess to the Issuers promptly after the expiration of the Offer Period for
application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Issuers at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Issuers receives not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered by the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities surrendered by
Holders exceeds the Offer Amount, the Issuers shall select the Securities to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuers so that only Securities in denominations of $1, or
integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(4) At the time the Issuers deliver Securities to the Trustee which
are to be accepted for purchase, the Issuers shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Issuers
pursuant to and in accordance with the terms of this Section. A Security shall
be deemed to have been accepted for purchase at the time the Trustee, directly
or through an agent, mails or delivers payment therefor to the surrendering
Holder.
(d) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.07 Offer to Repurchase Upon Failure to Attain Profitable
Operations. (a) If the Company does not achieve Profitable Operations prior to
December 31, 2001, the Issuers shall be required to use any amounts in the
Offshore Reserve Account to undertake an offer to purchase Securities (and, at
the Company's election, the Notes) pro rata at 100% of the Accreted Value
thereof on the date of purchase, plus accrued and unpaid interest and Additional
Amounts, if any, thereon ("Stage III Tender").
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(b) The Issuers will be required to conduct a Stage III Tender and
to purchase tendered Securities in accordance with the procedures set forth in
Section 4.10(b), (c), (d) and (e).
SECTION 4.08 Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries. Neither the Issuers nor the Company will permit (i) any
Restricted Subsidiary to issue any Capital Stock (other than to the Issuers or
the Company or any Wholly Owned Restricted Subsidiary ) or (ii) any Person
(other than the Issuers or the Company or a Wholly Owned Restricted Subsidiary)
to acquire any Capital Stock of any Restricted Subsidiary from the Issuers or
the Company or any Restricted Subsidiary, except upon the sale of all of the
outstanding Capital Stock of such Restricted Subsidiary owned by the Issuers or
the Company or another Restricted Subsidiary and the designation of such
Subsidiary as an Unrestricted Subsidiary; provided, however, that the Issuers or
the Company or a Restricted Subsidiary may issue or sell common stock of a
Restricted Subsidiary to a Person that is not an Affiliate of the Company so
long as, on or prior to the consummation of such issuance or sale, such
Restricted Subsidiary issues and delivers a supplemental indenture to the
Indentures providing for the guarantee of the Securities, which guarantee shall
be a senior obligation of such Restricted Subsidiary.
SECTION 4.09 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries. Neither the Issuers or the Company will, and
the Company will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary to (a)
pay dividends or make any other distribution on its Capital Stock to the Issuers
or the Company or any other Restricted Subsidiary, (b) pay any Indebtedness owed
to the Issuers or the Company or any other Restricted Subsidiary, (c) make any
Investment in the Issuers or the Company or (d) transfer any of its properties
or assets to the Issuers or the Company or any Restricted Subsidiary, except (i)
any encumbrance or restriction pursuant to or in connection with the Bank Credit
Facility or the Securities as in effect on the Issue Date, (ii) any encumbrance
or restriction, with respect to a Restricted Subsidiary that is not a Restricted
Subsidiary of the Company on the date of this Indenture, in existence at the
time such Person becomes a Restricted Subsidiary of the Company and not Incurred
in connection with, or in contemplation, of, such Person becoming a Restricted
Subsidiary, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Issuers or the Company or any
Restricted Subsidiary and (iv) any encumbrance or restriction existing under any
agreement effecting a Refinancing of Indebtedness referred to in clause (i),
(ii) or (iii) above or this clause (iv); provided that the terms and conditions
of any such encumbrances or restrictions are not materially less favorable to
the Holders than those under or pursuant to the agreement evidencing such
Refinancing, Indebtedness so extended, renewed, refinanced or replaced.
SECTION 4.10 Change of Control. (a) Upon the occurrence of a Change
of Control, each Holder shall have the right to require that the Issuers
repurchase all or any part of such Holder's Securities at a purchase price in
cash equal to 101% of the Accreted Value thereof on the date of purchase, plus
accrued and unpaid interest and Additional Amounts, if any, to date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date), in
accordance with the terms contemplated in Section 4.10(b); provided, however,
that prior to repurchasing any Securities pursuant to this
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Section 4.10(a), the Issuers shall (i) repay in full the Senior Notes and the
Senior Subordinated Notes or (ii) otherwise obtain the requisite consent under
the Senior Notes and the Senior Subordinated Notes to permit the repurchase of
the Securities.
(b) Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Issuers to repurchase such Holder's Securities at
a price in cash equal to 101% of the Accreted Value thereof on the date of
purchase, plus accrued and unpaid interest and Additional Amounts, if any,
to the date of repurchase (subject to the right of Holders of record on a
record date to receive interest due on the relevant interest payment
date);
(2) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(3) the procedures determined by the Issuers, consistent with this
Section, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the Company
under this Section shall be delivered to the Trustee for cancellation, and the
Company shall pay the purchase price, plus accrued and unpaid interest, if any,
to the Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws or regulations are applicable
in connection with the repurchase of Securities pursuant to this Section. To the
extent that the provisions of any securities laws or regulations conflict with
provisions of this Section, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 4.11 Compliance Certificate. The Issuers and the Company
shall deliver to the Trustee within 90 days after the end of each fiscal year of
the Issuers and the Company an Officers' Certificate stating that in the course
of the performance by the signers of their duties as Officers of the Issuers and
the Company they would normally have knowledge of any Default and whether or not
the signers know of any Default that occurred during such period. If they do,
the certificate shall describe the Default, its status and what action the
Company is
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taking or proposes to take with respect thereto. The Company also shall comply
with Section 314(a)(4) of the TIA.
SECTION 4.12 Further Instruments and Acts. Upon request of the
Trustee, the Issuers shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture, the Security Documents and each other
agreement delivered in connection herewith or therewith.
SECTION 4.13 Limitation on Affiliate Transactions. Neither the
Issuers nor the Company will, and the Company will not permit any Restricted
Subsidiary to, directly or indirectly, enter into or conduct any transaction or
series of related transactions (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with or for the benefit of any
Affiliate of the Company (an "Affiliate Transaction") unless: (a) the terms of
such Affiliate Transaction are no less favorable to the Issuers or the Company
or such Restricted Subsidiary, as the case may be, than those that could be
obtained at the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate; (b) in the event such Affiliate Transaction
involves an aggregate amount in excess of U.S.$5 million, the terms of such
transaction have been approved by a majority of the members of the Board of
Directors of such Person and by a majority of the disinterested members of such
Board, if any (and such majority or majorities, as the case may be, determines
that such Affiliate Transaction satisfies the criteria in (a) above); and (c) in
the event such Affiliate Transaction involves an aggregate amount in excess of
U.S.$10 million, such Person has received a written opinion from an independent
investment banking firm or other similar expert of nationally recognized
standing that such Affiliate Transaction (i) is fair to the Issuers or the
Company or such Restricted Subsidiary, as the case may be, from a financial
point of view, or (ii) complies with the requirements of clause (a) above.
The foregoing paragraph shall not apply to (a) any Restricted
Payment permitted to be made pursuant to Section 4.04, (b) loans or advances to
employees in the ordinary course of business of the Company and/or any
Subsidiary in aggregate amount outstanding not to exceed U.S.$l million at any
time, (c) indemnification agreements with, and the payment of fees and
indemnities to, directors, officers and employees of the Company or any
Subsidiary, in each case in the ordinary course of business, (d) transactions
pursuant to agreements in existence on the Issue Date which (x) are described in
the Offering Memorandum or (y) otherwise, in the aggregate, are immaterial to
the Issuers, the Company and the Restricted Subsidiaries taken as a whole, (e)
any employment, noncompetition or confidentiality agreements entered into with
its employees in the ordinary course of business, (f) the issuance of Capital
Stock (other than Disqualified Stock) of the Issuers to the Company, and (g)
sublease arrangements on commercial terms covering shared space.
SECTION 4.14 Limitation on Sale Leaseback Transactions. Neither the
Issuers nor the Company shall, and the Company shall not permit any Restricted
Subsidiary to, enter into any Sale/Leaseback Transaction with respect to any
property unless (i) the Issuers, the Company or such Restricted Subsidiary would
be entitled to (A) Incur Indebtedness in an amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction pursuant to Section
4.03 and (B) create a Lien on such property securing such Attributable
Indebtedness pursuant to Section 4.05, (ii) the net proceeds received by the
Issuers, the Company or any Restricted
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Subsidiary in connection with such Sale/Leaseback Transaction are at least equal
to the fair value (as determined by the Board of Directors) of such property and
(iii) the proceeds of such transaction are applied in compliance with Section
4.06.
SECTION 4.15 Limitation on Issuances of Capital Stock. Neither the
Issuers nor any Restricted Subsidiary will issue any Capital Stock to any Person
other than to the Company.
SECTION 4.16 Limitation on Sales to non-Credit Qualified Purchasers.
Until the earlier of the third anniversary of the Issue Date and the date upon
which the Company achieves Profitable Operations, the Company shall not permit
the aggregate amount of the accounts receivable of it and its subsidiaries from
non-Credit Qualified Purchasers to exceed U.S.$10 million at any one time
outstanding.
SECTION 4.17 Line of Business. The Company will not, and will not
permit the Issuers or any Subsidiary to, engage in any business other than its
ownership of the Mill and the assets and liabilities of the Mill and any
business ancillary or reasonably related thereto.
SECTION 4.18 Ownership. The Company will at all times own 100% of
the Capital Stock of the Issuers.
SECTION 4.19 Use of Proceeds. The Issuers and the Company shall
apply the proceeds from the sale of the Securities in the manner described in
the Offering Memorandum and establish and maintain the Accounts (as defined in
the Security Sharing Agreement) pursuant to the Security Sharing Agreement.
SECTION 4.20 Additional Amounts. (a) All payments made by the
Issuers under or with respect to the Securities and by the Company under the
Guaranty will be made free and clear of and without withholding or deduction for
or on account of any present or future taxes, levies, duties, fees, assessments
or other governmental charges of whatever nature ("Taxes") imposed, levied,
collected or assessed by or on behalf of any taxing authority within the Cayman
Islands or Thailand, unless the Issuers are or the Company is, as the case may
be, required to withhold or deduct or if the Issuers are or the Company is
otherwise required to pay any amount for or on account of Taxes imposed by a
taxing authority within the Cayman Islands or Thailand from or in respect of any
payment made under or with respect to the Securities or the Guaranty, in which
case the Issuers or the Company, as the case may be, will pay such additional
amounts ("Additional Amounts") as may be necessary so that the net amount
received by each holder and beneficial owner of Securities (including Additional
Amounts) after such withholding or deduction or other payment of Taxes will not
be less than the amount the holder and beneficial owner would have received if
such Taxes had not been withheld or deducted or paid; provided, however, that no
Additional Amounts will be payable with respect to a payment made to a holder of
Securities with respect to any Tax: (i) which would not have been imposed,
payable or due but for the existence of any present or former connection between
the holder (or the beneficial owner of, or person ultimately entitled to obtain
an interest in, such Securities) and the Cayman Islands or Thailand, as the case
may be, other than the mere holding of the Securities; (ii) which would not have
been imposed, payable or due if the Securities are held in definitive registered
form ("Definitive Registered Securities") and the presentation of Definitive
Registered Securities for
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payment had occurred within 30 days after the date such payment was due and
payable or was provided for, whichever is later, except for Additional Amounts
with respect to Taxes that would have been imposed had the holder presented the
Security for payment within such 30-day period; (iii) that is an estate,
inheritance, gift, sales, transfer, personal property or similar Tax; (iv) that
is imposed or withheld by reason of the failure of the holder or beneficial
owner of a Security to comply, at the reasonable request of the Issuers or the
Company, as the case may be, with certification, information or other reporting
requirements concerning the nationality, residence or identity of the holder or
such beneficial owner if such compliance is required or imposed by a statute,
treaty, regulation or administrative practice of the taxing jurisdiction as a
precondition to exemption from all or part of such Tax; (v) if the beneficial
owner of, or person ultimately entitled to obtain an interest in, such
Securities had been the holder of the Securities and would not be entitled to
the payment of Additional Amounts; or (vi) payable otherwise than by withholding
from payments on or in respect of any Security.
(b) The Issuers or the Company, as the case may be, will also (i)
make such withholding or deduction and (ii) remit the full amount deducted or
withheld to the relevant authority in accordance with applicable law. The
Issuers or the Company, as the case may be, will make reasonable efforts to
obtain certified copies of tax receipts evidencing the payment of any Taxes so
deducted or withheld from each taxing authority imposing such Taxes. The Issuers
or the Company, as the case may be, will furnish to the holders of the
Securities, within 60 days after the date the payment of any Taxes so deducted
or withheld is due pursuant to applicable law, either certified copies of tax
receipts evidencing such payment by the Issuers or the Company, as the case may
be, or, if such receipts are not obtainable, other evidence of such payments by
the Issuers or the Company.
(c) In addition, the Issuers or the Company, as the case may be,
will, upon written request of each holder of Securities (subject to the
exclusions set forth in (i), (ii), (iii), (iv), (v) and (vi) of paragraph (a)
above), and provided that reasonable supporting documentation is provided,
reimburse each such holder for the amount of any Taxes levied or imposed by the
Cayman Islands or Thailand and paid by such holder as a result of payments made
under or with respect to the Securities or under the Guaranty. Any payment
pursuant to this section shall be an Additional Amount.
(d) At least 30 days prior to each date on which any payment under
or with respect to the Securities or under the Guaranty is due and payable, if
the Issuers or the Company will be obligated to pay Additional Amounts with
respect to such payment, the Issuers or the Company will deliver to the Trustee
an Officers' Certificate stating the fact that such Additional Amounts will be
payable and the amounts so payable and will set forth such other information
necessary to enable the Trustee to pay such Additional Amounts to the holders of
Securities on the payment date. Whenever in this Indenture or in the Securities
there is mentioned, in any context, the payment of amounts based upon the
principal of, premium, if any, interest or of any other amount payable under or
with respect to any Security or either Guaranty such mention shall be deemed to
include mention of the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
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(e) In addition, the Issuers will pay any stamp, issue,
registration, documentary, value added or other similar taxes and other duties
(including interest and penalties) payable in the Cayman Islands or in Thailand
(or any political subdivision or taxing authority of either jurisdiction) and in
the United States in respect of the creation, issue, offering, execution or
enforcement of the Securities, the Guaranty or any documentation with respect
thereto.
SECTION 4.21 Maintenance of Office or Agency. (a) The Issuers shall
maintain in the Borough of Manhattan, in 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 Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Issuers in
respect of the Securities, this Indenture and the Guaranty may be served. The
Issuers shall give prior written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
(b) The Issuers may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Issuers of their obligation to maintain an office or
agency in the Borough of Manhattan, in the City of New York for such purposes.
The Issuers shall give prior 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.
(c) The Issuers hereby designate the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
SECTION 4.22 Stay, Extension and Usury Laws. Each of the Issuers and
the Company covenants (to the extent it may lawfully do so) that it shall not at
any time insist upon, plead or in any manner whatsoever claim or take the
benefit or advantage of, any stay, 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 (including, but not limited to, the payment of the
principal of or interest on the Securities); and the Issuers and the Company (to
the extent that they may lawfully do so) hereby expressly waive all benefit or
advantage of any such law, and covenant that they shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.23 Insurance. The Company shall as soon as practicable
after the Issue Date obtain, and thereafter at all times maintain in full force
and effect insurance in such amounts, covering such risks and liabilities and
with such deductibles or self-insured retentions as are in accordance with
normal industry practice. The Company shall furnish when obtained and annually
thereafter to the Collateral Agent a summary of the insurance carried by it
together with certificates of insurance and other evidence of such insurance, if
any, naming the Collateral Agent as an additional insured and/or loss payee.
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SECTION 4.24 Compliance with Statutes. The Company shall, and shall
cause each Subsidiary to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
Thailand or foreign, in respect of the conduct of its business and the ownership
of its property other than those the non-compliance with which would not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of the
Company and its Subsidiaries taken as a whole.
SECTION 4.25 Corporate Existence. Subject to Section 5.01, the
Company and the Issuers shall do or cause to be done all things necessary to
preserve and keep in full force and effect their corporate existence, in
accordance with their respective organizational documents (as the same may be
amended from time to time) and the rights (charter and statutory), licenses and
franchises of the Company and the Issuers.
SECTION 4.26 Independent Engineer. Not later than the 90th day
following the Issue Date, the Company shall have hired (and thereafter shall at
all times retain) the Independent Engineer to perform the duties set forth
herein together with such other duties as the Company and such Independent
Engineer may agree.
SECTION 4.27 Securities Cash Flow Sweep. No later than the fifteenth
day following the last day of each fiscal quarter of the Company (as the
Company's fiscal year is in effect on the Issue Date), the Company shall deposit
into the Notes Sinking Fund Account an amount equal to the Cash Flow Sweep
Amount.
SECTION 4.28 Payment of Taxes. The Company will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, all
material taxes, assessments and governmental charges levied or imposed upon the
Company or the Issuers or upon the income, profits or property of the Company or
the Issuers; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings, and against which adequate reserves are being
maintained.
SECTION 4.29 Intercompany Notes and Capital Contributions. (a) On
the Issue Date, the Company shall issue an intercompany note or notes to the
Issuers obligating the Company to make payments in respect of such intercompany
note or notes on any date and in the same amount that any payment (whether a
payment of principal when due at Stated Maturity, upon optional redemption, upon
required repurchase, upon declaration or otherwise or a payment in respect of
any interest) is due on the Securities; provided, however, if after the Issue
Date the Issuers and the Company determine in good faith that such an
intercompany note obligation will result in a material adverse tax consequence
to the Issuers or the Company, the Issuers and the Company may cancel such
intercompany note obligation and the Company shall thereafter comply with clause
(b) below.
(b) In the event that at any time the intercompany note referenced
in the preceding sentence has been canceled or otherwise declared inoperative or
unenforceable, then on or prior to any Interest Payment Date in respect of any
Security, or any date upon which any payment of
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principal of any Security is required to be made when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise, the Company shall make a cash contribution to NSM Cayman in the
amount of such interest or principal payment, as the case may be.
SECTION 4.30 Financial and Business Information. The Company shall
deliver to the Trustee:
(a) Monthly Statements -- within 30 days after the end of each
fiscal month of the Company, duplicate copies of,
(1) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal month, and
(2) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such fiscal month
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with Thai GAAP applicable to monthly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments.
(b) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate copies
of,
(1) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(2) a consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case of the second and
third quarters) for the portion of the fiscal year ending with such
quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with Thai GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified above
of copies of the Company's Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the Securities
and Exchange Commission shall be deemed to satisfy the requirements of
this Section 4.28(b);
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(c) Annual Statements -- within 100 days after the end of each
fiscal year of the Company, duplicate copies of,
(1) a consolidated and consolidating balance sheet of the
Company and its Subsidiaries, as the end of such year, and
(2) a consolidated and consolidating statements of income,
changes in shareholders' equity and cash flows of the Company and
its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with Thai GAAP, and accompanied
(i) by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall
state that such financial statements present fairly, in all material
respects, the financial position of the companies being reported
upon and their results of operations and cash flows and have been
prepared in conformity with Thai GAAP, and that the examination of
such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards,
and that such audit provides a reasonable basis for such opinion in
the circumstances, and
(ii) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making their
audit, they have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if they are aware
that any such condition or event then exists, specifying the nature
and period of the existence thereof (it being understood that such
accountants shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Default or Event of Default
unless such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing
standards or did not make such an audit),
provided that the delivery within the time period specified above of the
Company's Annual Report on Form 10-K for such fiscal year (together with
the Company's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Commission, together with the
accountant's certificate described in clause (ii) above, shall be deemed
to satisfy the requirements of this Section 4.30(c);
(d) Budgets -- Prior to the commencement of each fiscal year of the
Company, budgets of the Company and its Subsidiaries for such fiscal year
in reasonable detail as customarily prepared by management of the Company;
(e) Requested Information -- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Company
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or its Subsidiaries to perform their respective obligations hereunder and
under the Notes as from time to time may be reasonably requested by the
Trustee.
(f) Certification -- Each set of financial statements delivered to
the Trustee pursuant to this Section 4.30 shall be accompanied by a
certificate of a Senior Financial Officer setting forth a statement that
such officer has reviewed the relevant terms hereof and has made, or
caused to be made, under his or her supervision, a review of the
transactions and conditions of the Company and its Subsidiaries from the
beginning of the monthly, quarterly or annual period covered by the
statements then being furnished to the date of the certificate and that
such review shall not have disclosed the existence during such period of
any condition or event that constitutes a Default or an Event of Default
or, if any such condition or event existed or exists (including, without
limitation, any such event or condition resulting from the failure of the
Companies or any Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof and what action the
Company or its Subsidiaries shall have taken or proposes to take with
respect thereto.
SECTION 4.31 Inspection. The Company shall permit the
representatives of each holder of Securities that is an Institutional Investor:
(a) No Default - if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the
Company, to visit the principal executive office of the Company, to
discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its independent
public accountants, and (with the consent of the Company, which consent
will not be unreasonably withheld) to visit the other offices and
properties of the Company and each Subsidiary, all at such reasonable
times and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Company to visit and inspect any of the offices or
properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the Company
and its Subsidiaries), all at such times and as often as may be requested.
SECTION 4.32 Other Covenants. (a) The Company will not consent to
the amendment of Sections 4.1 and 5.3 of the Shareholders Agreement.
(b) The Company will deposit into the Notes DSR Account on or prior
to the Issue Date an amount equal to the aggregate interest to be payable
on the Securities on the first two interest payment dates in respect
thereof.
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(c) The Majority Holders shall be entitled, at each annual meeting
of stockholders or special meeting to elect directors, to elect one member
of the Board of Directors of the Company. The Company shall take all
action necessary for one member of the Board of Directors to be elected by
the Majority Holders at each annual meeting of stockholders or special
meeting to elect directors. The Majority Holders shall notify the Company
of the name of the member of the Board of Directors selected by the
Majority Holders pursuant to this Section 4.32(b). Notwithstanding the
foregoing, for so long as John Hancock Mutual Life Insurance Co.
("Hancock") or any of its Affiliates are Holders of any of the Securities,
then Hancock shall be entitled to exercise such nomination rights.
(d) The Company shall cause to be deposited in the Offshore
Sub-Account all non-Baht revenue, including all proceeds from the sale of
goods and services, all insurance proceeds, all proceeds from the Working
Capital Credit Facility and all other amounts received by the Company that
are otherwise not required to be deposited in the Notes DSR Account or the
Offshore Reserve Account. Amounts held in the Offshore Sub-Account may be
used by the Company for payments and other uses permitted by the
Indentures but (other than payments of interest on the Senior Notes, the
Senior Subordinated Notes and the Securities or deposits into the Notes
Sinking Fund Account) only to the extent all other amounts on deposit in
the US$ Revenue Account and Baht Revenue Account (both as defined in the
Security Sharing Agreement) are insufficient to make such payments.
(e) Commencing with the first fiscal quarter of the Company ending
after the first anniversary of the Issue Date, and for each fiscal quarter
thereafter, the Company will deposit into the Notes Sinking Fund Account
the greater of $15 million or one-fourth the amount of $ U.S. denominated
interest on indebtedness of the Company or the Issuers due in the fiscal
year in which such fiscal quarter falls; provided, however, that any
amounts so deposited may be withdrawn at any time in order to pay interest
and/or principal on any $ U.S. denominated indebtedness of the Company or
the Issuers or, in the event that the Company reasonably believes that it
or the Issuers is about to default on any Baht denominated indebtedness,
to pay interest and/or principal on such Baht denominated indebtedness. By
way of clarification, notwithstanding the fact that Section 2.3(c) of
Annex A to the Security Sharing Agreement would otherwise allow the
Company to do so, the Company agrees that it shall not withdraw funds from
the Notes Sinking Fund Account solely as a result of obtaining Profitable
Operations, and shall only withdraw funds therefrom if otherwise permitted
hereunder and under the terms of the Security Sharing Agreement.
(f) Upon any discharge of any one or more of the Credit Facilities,
the Senior Notes or the Senior Subordinated Notes, the Issuers and the
Company hereby agree to enter into such conforming changes to the Security
Documents as shall be reasonably satisfactory to the Trustee in order to
confirm the rights provided to the Holders (including the second priority
interests granted thereunder), which conforming changes shall mutatis
mutandis give effect to the discharge of the Credit Facilities, the Senior
Notes or the Senior Subordinated Notes, as applicable.
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ARTICLE V
Successor Company
SECTION 5.01 Merger and Consolidation. The Company shall not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless: (i) the resulting,
surviving or transferee Person (the "Successor Company") shall be a corporation
organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia or Thailand, and the Successor Company (if
not the Company) shall expressly assume, by indenture supplemental to this
Indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company, including the obligations under
this Indenture, the Security Sharing Agreement and the Security Documents; (ii)
immediately after giving effect to such transaction on a pro forma basis (and
treating any Indebtedness which becomes an obligation of the Successor Company
as a result of such transaction as having been Incurred by the Successor Company
at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing (or would result therefrom); (iii) immediately after
giving effect to such transaction on a pro forma basis (and treating any
Indebtedness which becomes an obligation of the Successor Company as a result of
such transaction as having been Incurred by the Successor Company at the time of
such transaction), the Successor Company would be able to incur an additional
U.S.$1.00 of Indebtedness pursuant to the first paragraph of Section 4.03; (iv)
immediately after giving effect to such transaction on a pro forma basis (and
treating any Indebtedness which becomes an obligation of the Successor Company
or any Restricted Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or such Restricted Subsidiary at the time of
such transaction), the Successor Company shall have Consolidated Net Worth in an
amount which is not less than the Consolidated Net Worth of the Company
immediately prior to such transaction; (v) the Successor Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the holders of
the Securities will not recognize income, gain, or loss for United States
Federal income tax purposes as a result of such transaction, and will be subject
to United States Federal income tax on the same amounts and at the same times as
would be the case as if the transaction had not occurred, and there will be no
additional Thai Taxes and no Taxes of any other jurisdiction imposed on any
payments made pursuant to the Securities or the Guaranty; and (vi) each of the
Company and the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indentures comply with this
Indenture, and this Indenture (including the Guaranty), the Security Sharing
Agreement, the Security Documents, and the Securities remain and will be in full
force and effect against all applicable parties and the Liens with respect to
the Collateral (which shall be first priority perfected Liens unless otherwise
contemplated by the Security Documents) continue in full force and effect.
The Successor Company shall be the successor to the Company and
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture, but the predecessor Company in the case of
a conveyance, transfer or lease shall not be released from the obligation to pay
the principal of and interest on the Securities.
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The Issuers shall not consolidate or merge with or into any other
Person, or convey, transfer or lease all or substantially all its assets to any
other Person, and all of its outstanding Capital Stock shall at all times be
owned by the Company free and clear of all Liens (other than Liens securing the
Securities, the Senior Notes and the Debentures).
ARTICLE VI
Defaults and Remedies
SECTION 6.01 Events of Default. Each of the following constitutes an
"Event of Default":
(a) a default in any payment of interest on any Security when due
(whether or not such payment is prohibited by the provisions of Article
XI), or the failure of the Company to make any required capital
contribution in respect of a payment of interest on any Security pursuant
to Section 4.29, in each case continued for 30 days;
(b) a default in the payment of principal of any Security when due
at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise (whether or not such payment is
prohibited by Article XI) or the failure of the Company to make any
required capital contribution in respect of a principal payment on any
Security pursuant to Section 4.29;
(c) the failure by the Issuers or the Company to comply with its
obligations under Section 5.01;
(d) the failure by the Issuers or the Company to comply for 30 days
after notice with any of their respective obligations under Article IV
(other than Section 4.29 and other than a failure to purchase Securities
pursuant to Section 4.06, 4.07 or 4.10 which shall constitute an Event of
Default under clause (b) above), other than as specified in clause (a),
(b) or (c) above;
(e) the failure by the Issuers or the Company to comply for 60 days
after notice with their respective agreements contained in the Indenture
(other than those referred to in clause (a), (b), (c) and (d) above);
(f) the Guaranty ceases to be in full force and effect (except as
contemplated by the terms thereof) or the Company denies or disaffirms its
obligations under the Guaranty;
(g) Indebtedness of the Company, the Issuers or any Restricted
Subsidiary is not paid within any applicable grace period after final
maturity or is accelerated by the holders thereof because of a default and
the total amount of such Indebtedness unpaid or accelerated exceeds U.S.$5
million (or its foreign currency equivalent at the time) and such default
shall not have been cured or such acceleration rescinded after a 10-day
period;
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(h) the Company, the Issuers or any Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it
in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(iv) makes a general assignment for the benefit of its
creditors;
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company, the Issuers or any
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company, the Issuers or any
Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Company, the
Issuers or any Subsidiary;
(j) any judgment or decree for the payment of money in excess of
U.S.$5 million (or its foreign currency equivalent) (to the extent not
covered by insurance) is rendered against the Company, the Issuers or any
Subsidiary and such judgment or decree shall remain undischarged or
unstayed for a period of 60 days after such judgment becomes final and
nonappealable (the "judgment default provision");
(k) any Account or amount therein is not maintained as required or
any drawing under or deposit into any Account is not made when required to
be made and in any such case such failure continues unremedied for five
Business Days (or, in the case of a failure to find or maintain any
required amount in, or to make a drawing under, the Notes DSR Account, 30
days) (the "account provision");
(l) the Security Documents shall cease to grant the holders any of
the material collateral or rights purported to be granted thereunder or
the Company shall fail to increase the Mortgaged Amounts (as defined in
the Security Documents) when required pursuant to the Security Documents
(the "security provision"); or
(m) after giving effect to the anticipated receipt and application
of any insurance proceeds the Mill is abandoned in whole or in substantial
part or is destroyed or made permanently inoperable in whole or in
substantial part (the "abandonment provision").
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However, a Default under clauses (d) or (e) will not constitute an
Event of Default until the Trustee or the holders of 25% in principal amount at
maturity of the outstanding Securities, notify the Issuers (with a copy to the
Trustee if given by the holders) of the Default and such default is not cured
within the time specified in clause (d) or (e) after receipt of such notice. The
written notice must specify the Default, demand that it be remedied and state
that the notice is a "Notice of Default".
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar U.S. Federal, state or local law for the relief of debtors or any
comparable or similar foreign laws (including any Thai law) relating to
bankruptcy, receivership, liquidation, dissolution or similar proceeding. The
term "Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
The Issuers shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default and of any event which with the giving of notice or the
lapse of time would become an Event of Default under clause (a), (d), (e), (g),
(j) or (k), its status and what action the Issuers is taking or proposes to take
with respect thereto.
SECTION 6.02 Acceleration. If an Event of Default (other than an
Event of Default with respect to clauses (h) or (i) of Section 6.01 occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount at
maturity of the outstanding Securities by notice to the Issuers and the Trustee
(if the notice is given by the holders) may declare the Accreted Value of, and
accrued and unpaid interest, if any, on all the Securities to be due and
payable. Upon such a declaration, such Accreted Value and accrued and unpaid
interest shall be due and payable immediately. If an Event of Default with
respect to the Securities pursuant to clauses (h) and (i) of Section 6.01
(together, the "bankruptcy provision") occurs, the Accreted Value of, and
accrued and unpaid interest on, such Securities will become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any holders. The Holders of a special majority of 60% in principal amount of
the outstanding Securities by notice to the Trustee may rescind an acceleration
and its consequences if (i) the rescission would not conflict with any judgment
or decree, (ii) all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration and (iii) all amounts due to the Trustee under Section 7.07 have
been paid. No such rescission shall affect any subsequent Default or Event of
Default or impair any right consequent thereto. Upon any such acceleration,
Securityholders holding a majority and principal amount at maturity of the
Securities shall have the right under the Security Documents to vote to cause
the Trustee to direct the Collateral Agent to act thereunder. Except as directed
by the Securityholders, the Trustee shall have no responsibility before or after
an Event of Default to foreclose or take any other action with respect to the
Collateral or the Security Documents.
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 of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Defaults. The Majority Holders by notice to
the Trustee may waive an existing Default and its consequences except (i) a
Default in the payment of the principal of or interest on a Security or (ii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Securityholder affected. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
SECTION 6.05 Control by Majority. The Majority Holders may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06 Limitation on Suits. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity 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 of security or indemnity; and
(5) the Holders of a majority in principal amount of the outstanding
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and
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liquidated damages and interest on the Securities held by such Holder, on or
after the respective due dates expressed in the Securities, 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) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
SECTION 6.09 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Issuers, any Subsidiary or
the Company, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10 Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: subject to Articles XI and XIII, to Securityholders for
amounts due and unpaid on the Securities for principal and interest,
ratably, and any liquidated damages without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal, any liquidated damages and interest, respectively;
THIRD: any other amounts to the Securityholders hereunder, under the
Purchase Agreements, the Security Documents, and under any other documents
delivered in connection herewith or therewith, which amounts shall be
shared pro rata (based on amount owed) among all Securityholders owed any
such amounts; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment
to Securityholders pursuant to this Section.
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 Trustee, a court in its discretion may
require the filing by any party litigant in the
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suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a suit by Holders of more than 10% in principal amount of the Securities.
ARTICLE VII
Trustee
SECTION 7.01 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture 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, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
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(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02 Rights of Trustee. Subject to Section 7.01: (a) The
Trustee may rely on any document 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) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuers or the Company, personally or by agent or attorney.
(g) The Trustee shall not be charged with knowledge of any Default
or Event of Default unless either a Trust Officer of the Trustee assigned to the
Corporate Trust Department of the Trustee (or any successor division or
department of the Trustee) shall have actual knowledge of such Default or Event
of Default or written notice of such Default or Event of Default shall have been
given to the Trustee by the Company or any Holder.
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(h) Except as expressly provided in Section 10.04, the Trustee shall
at no time have any responsibility or liability for or with respect to the
legality, validity or enforceability of any Collateral or any arrangement or
agreement between the Collateral Agent and any Person with respect thereto, or
the perfection or priority of any security interest created in any of the
Collateral or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Collateral following any Event of
Default. The Trustee shall have no responsibility for the maintenance of any
Account or the investment of any funds deposited therein or the release of any
funds therefrom.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuers or their Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, the Securities, the Guaranty, any Collateral or any Account, it
shall not be accountable for the Issuers' use of the proceeds from the
Securities, and it shall not be responsible for any statement of the Issuers in
this Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05 Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 30 days after it is known to a Trust
Officer or written notice of it is received by the Trustee. Except in the case
of a Default in payment of principal of, premium (if any) or interest on any
Security (including payments pursuant to the mandatory redemption provisions of
such Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06 Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Issuers agree to notify promptly the Trustee whenever
the Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07 Compensation and Indemnity. The Issuers and the Company
jointly and severally agree to pay to the Trustee from time to time reasonable
compensation for its services as set forth in a separate fee letter. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers and the Company jointly and severally
agree to reimburse the Trustee upon request for all reasonable out-of-pocket
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expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Issuers and the Company, jointly and
severally shall indemnify the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by it without negligence
or bad faith on its part in connection with the administration of this trust and
the performance of its duties hereunder. The Trustee shall notify the Issuers of
any claim for which it may seek indemnity promptly upon obtaining actual
knowledge thereof; provided that any failure so to notify the Issuers shall not
relieve the Issuers or the Company of its indemnity obligations hereunder. The
Issuers shall defend the claim and the indemnified party shall provide
reasonable cooperation at the Issuers' expense in the defense. Such indemnified
parties may have separate counsel and the Issuers shall pay the fees and
expenses of such counsel. The Issuers need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own willful misconduct, negligence or bad faith.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest and any liquidated damages on particular Securities.
The Issuers' payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of an Event of Default specified in Section 6.01(h) or (i) with
respect to the Issuers, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign at any
time by so notifying the Issuers; provided that such resignation shall not be
effective until a successor is appointed. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Issuers shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 of this Indenture
or fails to qualify as Book-Entry Depositary pursuant to Section 3.07 of
the Debenture Depositary Agreement;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuers shall promptly appoint a successor
Trustee (subject to the preceding paragraph).
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA ss. 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuers are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11 Preferential Collection of Claims Against Issuers. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
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ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01 Discharge of Liability on Securities; Defeasance. (a)
When (i) the Issuers deliver to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article III hereof
and the Issuers irrevocably deposit with the Trustee funds or U.S. Government
Obligations on which payment of principal and interest when due will be
sufficient to pay at maturity or upon redemption all outstanding Securities,
including interest thereon to maturity or such redemption date (other than
Securities replaced pursuant to Section 2.07), and if in either case the Issuers
pay all other sums payable hereunder by the Issuers, then this Indenture shall,
subject to Section 8.01(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Issuers accompanied by an Officers' Certificate and an Opinion of Counsel and at
the cost and expense of the Issuers.
(b) Subject to Sections 8.01(c) and 8.02, the Issuers at any time
may terminate (i) all of their obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) their obligations under Article IV
(other than those in Sections 4.01, 4.11, 4.21 and 4.29), Sections 5.01(iii) and
5.01(iv) and the operation of Section 6.01(d) (except with respect to Sections
4.01, 4.11, 4.21 and 4.29), 6.01(g), 6.01(h) (with respect to Subsidiaries of
the Issuers only), 6.01(i) (with respect to Subsidiaries of the Issuers only),
6.01(j), 6.01(k) and 6.01(l) ("covenant defeasance option"). The Issuers may
exercise their legal defeasance option notwithstanding their prior exercise of
their covenant defeasance option. If the Issuers exercise their legal defeasance
option or their covenant defeasance option, the Company shall be released from
all of its obligations with respect to its Guaranty and all the Collateral will
be released.
If the Issuers exercise their legal defeasance option, payment of
the Securities may not be accelerated because of an Event of Default. If the
Issuers exercise their covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(d)
(except with respect to Section 4.01, 4.11, 4.21 and 4.29), 6.01(e), 6.01(f),
6.01(g), 6.01(h) (with respect only to the Company and its Subsidiaries other
than the Issuers only), 6.01(i) (with respect to Subsidiaries of the Issuers
only), 6.01(j), 6.01(k) or 6.01(l) or because of the failure of the Issuers to
comply with (iii) and (iv) of Section 5.01.
Upon satisfaction of the conditions set forth herein and upon
request of the Issuers, the Trustee shall acknowledge in writing the discharge
of those obligations that the Issuers terminate.
(c) Notwithstanding clauses (a) and (b) above, the Issuers'
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter, the
Issuers' obligations in Sections 7.07, 8.04 and 8.05 shall survive.
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SECTION 8.02 Conditions to Defeasance. The Issuers may exercise
their legal defeasance option or its covenant defeasance option only if:
(1) the Issuers irrevocably deposit in trust with the Trustee money
in the form of U.S. dollars or U.S. Government Obligations for the payment
of principal and interest on the Securities to maturity or redemption, as
the case may be;
(2) the Issuers deliver to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment of the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case may be;
(3) 123 days, or such longer period as may be relevant under any
applicable foreign Bankruptcy Laws, pass after the deposit is made and
during the 123-day or such applicable other period no Default specified in
Section 6.01(h) or (i) with respect to the Issuers occurs which is
continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Issuers;
(5) the Issuers deliver to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(6) in the case of the legal defeasance option, the Issuers shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuers have received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable federal income tax or Thailand tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Securityholders will not recognize income,
gain or loss for Federal income or Thailand tax purposes as a result of
such defeasance and will be subject to federal income or Thailand tax on
the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Issuers shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for Federal income
or Thailand tax purposes as a result of such covenant defeasance and will
be subject to Federal income and Thailand 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; and
(8) the Issuers deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
VIII have been complied with.
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Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03 Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04 Repayment to Issuers. The Trustee and the Paying Agent
shall promptly turn over to the Issuers upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Issuers upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Issuers for payment as general creditors.
SECTION 8.05 Indemnity for Government Obligations. The Issuers shall
jointly and severally pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06 Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article VIII 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 Issuers' obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Issuers have made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Issuers shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01 Without Consent of Holders. The Issuers, the Company
and the Trustee may amend this Indenture, any Security Documents, the Securities
or the Guaranty without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
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(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add further Guaranties with respect to the Securities or to
further secure the Securities;
(5) to add to the covenants of the Issuers for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Issuers or any Securityholder;
(6) to comply with any requirements of the Commission in connection
with qualifying this Indenture under the TIA;
(7) to make any change that does not adversely affect the rights of
any Securityholder; or
(8) to provide for the issuance of the Exchange Securities, which
shall have terms substantially identical in all material respects to the
Initial Securities (except that the transfer restrictions contained in the
Initial Securities shall be modified or eliminated, as appropriate), and
which shall be treated, together with any outstanding Initial Securities,
as a single issue of securities.
After an amendment under this Section becomes effective, the Issuers
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.02 With Consent of Holders. The Issuers, the Company and
the Trustee may amend this Indenture, any Security Documents, the Securities or
the Guaranty without notice to any Securityholder but with the written consent
of the Majority Holders. However, without the consent of each Securityholder
affected, an amendment, supplement or waiver may not:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the stated rate of or extend the stated time for payment
of interest or any liquidated damages on any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may be redeemed or repurchased in
accordance with Article III;
(5) make any Security payable in money other than that stated in the
Security;
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(6) impair the right of Holder to receive payment of principal of
and interest on such Holder's Securities on or after the due dates
therefor or to institute suit for the enforcement of any payment of or
with respect to such Holder's Securities;
(7) make any change in Section 6.04 or 6.07 or this Section; or
(8) release the Guaranty, all or substantially all of the Collateral
or the requirement to maintain any Account.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Issuers
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.03 Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective once the requisite number of consents are
received by the Issuers or the Trustee.
The Issuers may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05 Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Issuers or the Trustee so determines, the Issuers
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security
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that reflects the changed terms. Failure to make the appropriate notation or to
issue a new Security shall not affect the validity of such amendment.
SECTION 9.06 Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating, in addition to
the requirements of Section 12.04, that such amendment is authorized or
permitted by this Indenture that such amendment is the legal, valid and binding
obligation of the Issuers and the Company enforceable against them in accordance
with its terms, subject to customary exceptions, and complies with the
provisions hereof (including Section 9.03).
SECTION 9.07 Payment for Consent. Neither the Issuers nor any
Affiliate of the Issuers shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Security Documents
SECTION 10.01 Collateral and Security Documents. (a) To secure the
due and punctual payment of the obligations of the Issuers and the Company under
this Indenture and the Securities, the Issuers, the Company, the Trustee and the
Collateral Agent have entered into the Security Documents to create the security
interests and related matters. The Trustee, the Issuers and the Company hereby
acknowledge and agree that the Collateral Agent holds the Collateral in trust
for the benefit of the Holders and the Trustee and the other parties secured
under the Security Documents pursuant to the terms of the Security Documents.
(b) Each Holder, by accepting a Security, agrees to all of the terms
and provisions of the Security Documents, as the same may be amended from time
to time pursuant to the provisions of the Security Documents and this Indenture,
and authorizes and directs the Collateral Agent to perform its obligations and
exercise its rights under the Security Documents in accordance therewith;
provided, however, that if any provisions of the Security Documents limit,
qualify or conflict with the duties imposed by the provisions of the TIA, the
TIA will control.
(c) As more fully set forth in, and subject to the provisions of,
the Security Documents, the Holders, and the Trustee on behalf of such Holders,
have rights in and to the Collateral which are second in priority and
subordinated to the rights created in favor of the creditors under the Bank
Credit Facility and the holders of the Notes.
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(d) As set forth in and governed by the Security Documents, the
Collateral as now or hereafter constituted shall be held for the benefit of the
Secured Creditors (as defined in the Security Documents) with the preference,
priority or distinction set forth in the Security Documents. As among the
Holders, the Collateral shall be held for the equal and ratable benefit of the
Holders without preference, priority or distinction of any thereof over any
other.
SECTION 10.02 Release of Collateral. Collateral may be released from
the security interest created by the Security Documents at any time or from time
to time in accordance with the provisions of the Security Documents. The release
of any Collateral from the terms hereof and of the Security Documents or the
release of, in whole or in part, the Liens created by the Security Documents,
will not be deemed to impair the Lien on the Collateral in contravention of the
provisions hereof if and to the extent the Collateral or Liens are released
pursuant to the applicable Security Documents and pursuant to the terms of this
Article 10. The Trustee and each of the Holders acknowledge that a release of
Collateral or a Lien strictly in accordance with the terms of the Security
Documents and of this Article 10 will not be deemed for any purpose to be an
impairment of the Lien on the Collateral in contravention of the terms of this
Indenture. To the extent applicable, the Company and each obligor on the
Securities shall cause ss. 314(d) of the TIA relating to the release of property
or securities from the Lien hereof and of the Security Documents to be complied
with. Any certificate or opinion required by ss. 314(d) of the TIA may be made
by an officer of the Company, except in cases which ss. 314(d) of the TIA
requires that such certificate or opinion be made by an independent person.
SECTION 10.03 Certificates and Opinions. (a) The Issuers and the
Company shall deliver to the Trustee:
(i) promptly after the execution and delivery of this Indenture, an
Opinion of Counsel either stating that in the opinion of such counsel the
Indenture and the Security Documents (including financing statements or
other instruments) have been properly recorded and filed so as to make
effective the security interest intended to be created for the benefit of
the Securityholders, and reciting the details of such action, or stating
that in the opinion of such counsel no such action is necessary to make
such Lien effective; and
(ii) on or before March 1 of each year, an Opinion of Counsel either
stating that in the opinion of such counsel such action has been taken
with respect to the recording, filing, re-recording and re-filing of the
Indenture and the Security Documents (including financing statements or
other instruments) as is necessary to maintain the security interest
intended to be created thereby for the benefit of the Securityholders, and
reciting the details of such action, or stating that in the opinion of
such counsel no such action is necessary to maintain such Lien.
(b) The Company shall comply with TIA ss. 314(d), relating to, among
other matters, the release of Collateral from the Lien of the Security Documents
and Officers' Certificates or other documents regarding fair value of the
Collateral, to the extent such provisions are applicable. Any certificate or
opinion required by TIA ss. 314(d) may be executed and delivered by an Officer
of the Company to the extent permitted by TIA ss. 314(d).
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SECTION 10.04 Directions to Collateral Agent. Except during the
continuance of an Event of Default, the Trustee in directing the Collateral
Agent to take or refrain from taking actions under the Security Documents may
rely on an Officers' Certificate and Opinion of Counsel delivered to it by the
Company to the effect that the action to be taken or not taken does not
adversely affect the interests of the Securityholders or impair the security of
the Securityholders in contravention of the provisions of the Security Documents
or this Indenture.
ARTICLE XI
Subordination of Securities
SECTION 11.01 Agreement to Subordinate. The Issuers agree, and each
Securityholder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities is subordinated in right of payment to the extent and in the
manner provided in this Article XI, to the prior payment in full in cash or cash
equivalents of all Specified Senior Indebtedness of the Issuers and that the
subordination is for the benefit of and enforceable by the holders of such
Specified Senior Indebtedness. The Securities shall in all respects rank pari
passu with all other Senior Indebtedness of the Issuers and only Indebtedness of
the Issuers which is Specified Senior Indebtedness shall rank senior to the
Securities in accordance with the provisions set forth herein. All provisions of
this Article XI shall be subject to Section 11.12.
SECTION 11.02 Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of the Issuers to creditors upon a total or
partial liquidation or a total or partial dissolution of the Issuers or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Issuers or their property:
(1) holders of Specified Senior Indebtedness of the Issuers shall be
entitled to receive payment in full in cash or cash equivalents of such
Specified Senior Indebtedness before Securityholders shall be entitled to
receive any payment of principal of, interest on or any other amount
payable in respect of the Securities; and
(2) until such Specified Senior Indebtedness is paid in full in cash
or cash equivalents, any distribution to which Securityholders would be
entitled but for this Article XI shall be made to holders of such
Specified Senior Indebtedness as their interests may appear, except that
Securityholders may receive shares of stock and any debt securities that
are subordinated to such Specified Senior Indebtedness, and to any debt
securities received by holders of Specified Senior Indebtedness of the
Issuers, to at least the same extent as the Securities are subordinated to
Specified Senior Indebtedness of the Issuers.
SECTION 11.03 Default on Specified Senior Indebtedness of the
Issuers. The Issuers may not pay the principal of, interest on or any other
amount payable in respect of the Securities or make any deposit pursuant to
Section 8.01 and may not repurchase, redeem or defease any Securities
(collectively, "pay the Securities") if (i) any Specified Senior Indebtedness of
the Issuers is not paid when due or (ii) any other default on such Specified
Senior Indebtedness occurs and the maturity of such Specified Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such acceleration
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has been rescinded or (y) such Specified Senior Indebtedness has been paid in
full; provided, however, that the Issuers may pay the Securities without regard
to the foregoing if the Issuers and the Trustee receive written notice approving
such payment from the Representative of such Specified Senior Indebtedness with
respect to which either of the events set forth in clause (i) or (ii) of this
sentence has occurred and is continuing. During the continuance of any default
(other than a default described in clause (i) or (ii) of the preceding sentence)
with respect to any Specified Senior Indebtedness of the Issuers pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or after the
expiration of any applicable grace periods, the Issuers may not pay the
Securities for a period (a "Payment Blockage Period") commencing upon the
receipt by the Issuers and the Trustee of written notice (a "Blockage Notice")
of such default from the Representative of such Specified Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated (i) by
written notice to the Trustee and the Issuers from the Person or Persons who
gave such Blockage Notice, (ii) because the Specified Senior Indebtedness has
been repaid in full or (iii) because the default giving rise to such Blockage
Notice is no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section), unless the holders of Specified Senior
Indebtedness of the Issuers or the Representative of such holders shall have
accelerated the maturity of such Specified Senior Indebtedness, the Issuers may
resume payments on the Securities after such Payment Blockage Period. The
Securities shall not be subject to more than one Payment Blockage Period in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Specified Senior Indebtedness of the Issuers during such period. For purposes
of this Section, no default or event of default which existed or was continuing
on the date of the commencement of any Payment Blockage Period with respect to
the Specified Senior Indebtedness initiating such Payment Blockage Period shall
be, or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Specified Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days.
SECTION 11.04 Acceleration of Payment of Securities. If payment of
the Securities is accelerated because of an Event of Default, the Issuers or the
Trustee shall promptly notify the holders of the Specified Senior Indebtedness
of the Issuers (or their Representative) of the acceleration.
SECTION 11.05 When Distribution Must Be Paid Over. If a distribution
is made to Securityholders that because of this Article XI should not have been
made to them, the Securityholders who receive the distribution shall hold it in
trust for holders of Specified Senior Indebtedness of the Issuers and pay it
over to them as their interests may appear.
SECTION 11.06 Subrogation. After all Specified Senior Indebtedness
of the Issuers is paid in full in cash or cash equivalents and until the
Securities are paid in full, the Securityholders shall be subrogated to the
rights of holders of such Specified Senior Indebtedness to receive distributions
applicable to such Specified Senior Indebtedness. A distribution made under this
Article XI to holders of such Specified Senior Indebtedness which otherwise
would
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have been made to Securityholders is not, as between the Issuers and
Securityholders, a payment by the Issuers on such Specified Senior Indebtedness.
SECTION 11.07 Relative Rights. This Article XI defines the relative
rights of Securityholders and holders of Specified Senior Indebtedness of the
Issuers. Nothing in this Indenture shall:
(1) impair, as between the Issuers and Securityholders, the
obligation of the Issuers, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Specified Senior Indebtedness of the Issuers to
receive distributions otherwise payable to Securityholders.
SECTION 11.08 Subordination May Not Be Impaired by Issuers. No right
of any holder of Specified Senior Indebtedness of the Issuers to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Issuers or by its failure to comply with
this Indenture.
SECTION 11.09 Rights of Trustee and Paying Agent. Notwithstanding
Section 11.03, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article XI. The Issuers, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
however, that, if the holders of Specified Senior Indebtedness of the Issuers
have a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Specified Senior Indebtedness of the Issuers with the same rights it would have
if it were not Trustee. The Registrar and co-registrar and the Paying Agent may
do the same with like rights. The Trustee shall be entitled to all the rights
set forth in this Article XI with respect to any Specified Senior Indebtedness
of the Issuers which may at any time be held by it, to the same extent as any
other holder of such Specified Senior Indebtedness; and nothing in Article 7
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XI shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 11.10 Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Specified Senior
Indebtedness of the Issuers, the distribution may be made and the notice given
to their Representative (if any).
SECTION 11.11 Article XI Not to Prevent Events of Default or Limit
Right to Accelerate. The failure to make a payment pursuant to the Securities by
reason of any provision
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in this Article XI shall not be construed as preventing the occurrence of a
Default or Event of Default. Nothing in this Article XI shall have any effect on
the right of the Securityholders or the Trustee to accelerate the maturity of
the Securities.
SECTION 11.12 Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 hereunder by the
Trustee for the payment of principal of and interest on the Securities shall not
be subordinated to the prior payment of any Specified Senior Indebtedness or
subject to the restrictions set forth in this Article XI, and none of the
Securityholders shall be obligated to pay over any such amount to the Issuers or
any holder of Specified Senior Indebtedness of the Issuers or any other creditor
of the Issuers.
SECTION 11.13 Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article XI, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 11.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representative for the holders of Specified
Senior Indebtedness of the Issuers for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such
Specified Senior Indebtedness, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XI. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Specified Senior Indebtedness of the Issuers to participate in any payment or
distribution pursuant to this Article XI, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Specified Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article XI and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article XI.
SECTION 11.14 Trustee to Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Specified Senior Indebtedness of the Issuers as provided in this Article XI and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 11.15 Trustee Not Fiduciary for Holders of Specified Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Specified Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Securityholders or the
Issuers or any other Person, money or assets to which any holders of Specified
Senior Indebtedness of the Issuers shall be entitled by virtue of this Article
XI or otherwise.
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SECTION 11.16 Reliance by Holders of Specified Senior Indebtedness
on Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any
Specified Senior Indebtedness of the Issuers, whether such Specified Senior
Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such
Specified Senior Indebtedness and such holder of such Specified Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Specified Senior Indebtedness.
ARTICLE XII
Guaranty of Securities, Indemnity
SECTION 12.01 Guaranty. (a) The Company, as principal obligor and
not merely as surety, hereby irrevocably and unconditionally guarantees to each
Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, that: (i) principal of, premium, if any,
and interest on the Securities (including any Additional Amounts payable in
respect thereof) will be promptly paid in full when due, subject to any
applicable grace period, whether on the relevant Stated Maturity, on an interest
payment date, by acceleration, by call for redemption or upon repurchase or
purchase pursuant to Article 3, Sections 4.06, 4.07 or 4.10 or otherwise and
interest on the overdue principal and premium, if any, and purchase price and
interest on any interest, to the extent lawful (in each case Post-Petition
Interest relating to the Issuers or the Company), on the Securities and all
other amounts payable under the Securities and obligations of the Issuers to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed when the same shall become due and payable, whether on the relevant
maturity date, upon acceleration, by call for redemption, upon repurchase or
purchase pursuant to a Change of Control, any Asset Disposition, any repurchase
of Securities pursuant to Section 4.07 or otherwise, all in accordance with the
terms hereof and thereof; and (ii) in case of any extension of time of payment
or renewal of any Securities or of any 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, subject to any applicable grace period, whether at
maturity, on an interest payment date, by acceleration, required repurchase or
otherwise. All payments under this Guaranty shall be made in United States
Dollars.
(b) All payments made by the Company under the Guaranty with respect
to the Securities will be made in United States Dollars free and clear of and
without withholding or deduction for or on account of any present or future
Taxes imposed or levied by or on behalf of Thailand (or any political
subdivision or taxing authority of Thailand), unless the Company is required to
withhold or deduct such Taxes by law or by the interpretation or administration
thereof. In the event that payments under the Guaranty are subject to
withholding or deduction for or on account of any present or future Taxes
imposed by Thailand (or any political subdivision or taxing authority of or in
Thailand), the Company shall pay Additional Amounts in such amounts and to the
extent set forth in Section 4.20(a).
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(c) The Company hereby agrees that its obligations hereunder shall
be unconditional and irrevocable, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture or the obligations of the
Issuers hereunder or thereunder, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Securities with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuers,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(d) The Company hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuers, any right to require a proceeding first against the Issuers, any
right to pursue or exhaust its legal or equitable remedies against the Issuers
(including any right which the Company may have to require the seizure and sale
of the assets of the Issuers to satisfy the outstanding principal of, interest
on or any other amounts payable under each Note prior to recourse against the
Company or its assets), protest, notice and all demands whatsoever and covenants
that the Guaranty will not be discharged except by complete performance of the
obligations contained in the Securities and this Indenture. If any
Securityholder or the Trustee is required by any court or otherwise to return to
the Issuers, the Company, or any custodian, trustee, liquidator or other similar
official acting in relation to the Issuers or the Company any amount paid by the
Issuers or the Company to the Trustee or such Securityholder, the Guaranty to
the extent theretofore discharged, shall be reinstated in full force and effect.
(e) The Company agrees that, as between the Company, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article VI
for the purposes of the Guaranty, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Section 6.02, such obligations (whether or not then due and
payable) shall forthwith become due and payable by the Company for the purposes
of the Guaranty.
(f) The Company also agrees, to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holders in enforcing any rights under the Guaranty.
(g) The Company hereby waives, in favor of the Holders and the
Trustee, any and all of its rights, protections, privileges and defenses
provided by law to a guarantor and in particular any applicable provisions of
the Thailand Civil Code and:
(i) waives any right of set-off which the Company may have against
the registered Holder of a Security in respect of any amounts which are or
may become payable by the registered Holder of a Security to the Issuers;
(ii) agrees that the Company is still under an obligation to make
payment to the registered Holder of a Security or the Trustee under this
Guaranty upon demand by the registered Holder of a Security even though
the registered Holder of a Security has not made any demand upon the
Issuers, the Trustee or the Collateral Agent or taken any steps
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or proceedings against the Issuers to seize and sell its assets or
property to recover the secured indebtedness or, if such steps or
proceedings are taken, the registered Holder of a Security is otherwise
unable to satisfy the Indebtedness under this Indenture from such assets
or property;
(iii) relinquishes any right or privilege which it may have to
demand from any court that the registered Holder of a Security or the
Trustee should split or apportion the Indebtedness under this Indenture
either proportionately or otherwise against the Company and any other
person who has given any Guaranty or other security to the registered
Holder of a Security in respect of the Indebtedness under this Indenture;
(iv) agrees that (subject to the other provisions of this Guaranty)
the Company shall not be entitled to claim from the Issuers any
compensation or release in respect of the obligations and liabilities of
the Company under this Guaranty in circumstances where the Company has not
made any actual payment under this Guaranty;
(v) agrees that the Company shall not make use of any of the
exceptions or defenses against the registered Holder of a Security or the
Trustee which are or may be available to the Issuers and which concerns
the Indebtedness under this Indenture;
(vi) agrees that the Company shall still be bound by and liable
under this Guaranty even though due to the fault of the registered Holder
of a Security or the Trustee, the Company can no longer be subrogated to
the rights, security interests and other privileges of the registered
Holder of a Security against the Issuers;
(vii) agrees that the Company shall not have the right to demand the
Issuers to repay the Indebtedness under this Indenture to the registered
Holder of a Security, or to release the Company from its liability under
this Guaranty in circumstances where the registered Holder of a Security
has granted any time or other indulgence to the Issuers.
SECTION 12.02 Indemnity. (a) The Company hereby irrevocably and
unconditionally agrees as a primary obligor to indemnify (the "Indemnity") fully
the Holders of the Securities and the Trustee for and against any amounts owed
by the Issuers in respect of the Securities and this Indenture that otherwise
would be payable under the Guaranty in the event that the Guaranty is for any
reason deemed to be unenforceable. Except as otherwise indicated herein or as
the context may otherwise require, all references herein and in the Securities
shall be deemed to constitute references to the Indemnity.
(b) The obligations of the Company assumed under this Indenture with
respect to the Indemnity are independent undertakings and constitute the
Company's own debt and obligation, as meant by or in accordance with any
applicable provisions of the Thailand Civil Code, separate from the Guaranty
contained in Section 12.01, not accessory to any of the Security Documents, and
with respect to which Indemnity of any such provision of the Thailand Civil Code
does not therefore apply.
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SECTION 12.03 Representation and Warranty. The Company hereby
represents and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of the
Guaranty and the Indemnity, and to constitute the same legal, valid and binding
obligations of the Company enforceable in accordance with their respective
terms, have been done and performed and have happened in compliance with all
applicable laws.
SECTION 12.04 Waiver of Subrogation. The Company hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
the Issuers that arise from the existence, payment, performance or enforcement
of the Company's obligations under the Guaranty, the Indemnity and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, any right to participate in any
claim or remedy of any Holder of Securities against the Issuers whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuers, directly or indirectly, in cash or other property or by setoff or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to the Company in violation of the preceding
sentence and the Securities shall not have been paid in full, such amount shall
have been deemed to have been paid to the Company for the benefit of, and held
in trust for the benefit of, the Holders of the Securities, and shall forthwith
be paid to the Trustee for the benefit of such Holders to be credited and
applied upon the Securities, whether matured or unmatured, in accordance with
the terms of this Indenture. The Company acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the waiver set forth in this Section 12.04 is knowingly
made in contemplation of such benefits.
ARTICLE XIII
Subordination of Guaranty
SECTION 13.01 Agreement to Subordinate. The Company agrees, and each
Securityholder by accepting a Security agrees, that the obligations of the
Company under the Guaranty (the "Obligations") are subordinated in right of
payment, to the extent and in the manner provided in this Article XIII, to the
prior payment in full in cash or cash equivalents of all Specified Senior
Indebtedness of the Company and that the subordination is for the benefit of and
enforceable by the holders of such Specified Senior Indebtedness. The
Obligations of the Company shall in all respects rank pari passu with all other
Senior Indebtedness of the Company and only Indebtedness of the Company which is
Specified Senior Indebtedness shall rank senior to the Guaranty in accordance
with the provisions set forth herein.
SECTION 13.02 Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of the Company to creditors upon a total or
partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Specified Senior Indebtedness of the Company shall be
entitled to receive payment in full of such Specified Senior Indebtedness
in cash or cash
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equivalents before Securityholders shall be entitled to receive any
payment pursuant to any Obligations of the Company; and
(2) until the Specified Senior Indebtedness of the Company is paid
in full in cash or cash equivalents, any distribution to which
Securityholders would be entitled but for this Article XIII shall be made
to holders of such Specified Senior Indebtedness of the Company as their
interests may appear, except that Securityholders may receive shares of
stock and any debt securities of the Company that are subordinated to
Specified Senior Indebtedness, and to any debt securities received by
holders of Specified Senior Indebtedness of the Company, to at least the
same extent as the Obligations of the Company are subordinated to
Specified Senior Indebtedness of the Company.
SECTION 13.03 Default on Specified Senior Indebtedness of the
Company. The Company may not make any payment pursuant to any of its Obligations
or repurchase, redeem or otherwise retire or defease any Securities or other
Obligations (collectively, "pay its Guaranty") if (i) any Specified Senior
Indebtedness of the Company is not paid when due or (ii) any other default on
Specified Senior Indebtedness of the Company occurs and the maturity of such
Specified Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Specified Senior Indebtedness has
been paid in full; provided, however, that the Company may pay its Guaranty
without regard to the foregoing if the Company and the Trustee receive written
notice approving such payment from the Representative of the Specified Senior
Indebtedness with respect to which either of the events set forth in clause (i)
or (ii) of this sentence has occurred and is continuing. During the continuance
of any default (other than a default described in clause (i) or (ii) of the
preceding sentence) with respect to any Specified Senior Indebtedness of the
Company pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may
not pay its Guaranty for a period (a "Guaranty Payment Blockage Period")
commencing upon the receipt by the Trustee (with a copy to the Company) of
written notice (a "Guaranty Blockage Notice") of such default from the
Representative of the holders of such Specified Senior Indebtedness specifying
an election to effect a Guaranty Payment Blockage Period and ending 179 days
thereafter (or earlier if such Guaranty Payment Blockage Period is terminated
(i) by written notice to the Trustee and the Company from the Person or Persons
who gave such Guaranty Blockage Notice, (ii) because the default giving rise to
such Guaranty Blockage Notice is no longer continuing or (iii) because such
Specified Senior Indebtedness has been repaid in full). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section), unless the holders
of Specified Senior Indebtedness giving such Guaranty Blockage Notice or the
Representative of such holders shall have accelerated the maturity of such
Specified Senior Indebtedness, the Company shall resume payments pursuant to its
Obligations after the end of such Guaranty Payment Blockage Period. The Guaranty
shall not be subject to more than one Guaranty Payment Blockage Period in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Specified Senior Indebtedness of the Company during such period. For purposes
of this Section, no default or event of default which existed or was continuing
on the date of the commencement of any Guaranty Payment Blockage Period with
respect to the Specified Senior Indebtedness initiating such Guaranty Payment
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Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Guaranty Payment Blockage Period by the Representative of such
Specified Senior Indebtedness, whether or not within a period of 360 consecutive
days, unless such default or event of default shall have been cured or waived
for a period of not less than 90 consecutive days.
SECTION 13.04 Demand for Payment. If a demand for payment (upon
receipt of the requisite information from the Company) is made on the Company
pursuant to Article XIII, the Company or the Trustee shall promptly notify the
holders of Specified Senior Indebtedness (or their Representatives) of the
Company of such demand.
SECTION 13.05 When Distribution Must Be Paid Over. If a distribution
is made to Securityholders that because of this Article XIII should not have
been made to them, the Securityholders who receive the distribution shall hold
it in trust for holders of the relevant Specified Senior Indebtedness and pay it
over to them or their Representative as their interests may appear.
SECTION 13.06 Subrogation. After all Specified Senior Indebtedness
of the Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Specified
Senior Indebtedness to receive distributions applicable to Specified Senior
Indebtedness. A distribution made under this Article XIII to holders of such
Specified Senior Indebtedness which otherwise would have been made to
Securityholders is not, as between the Company and Securityholders, a payment by
the Company on such Specified Senior Indebtedness.
SECTION 13.07 Relative Rights. This Article XIII defines the
relative rights of Securityholders and holders of Specified Senior Indebtedness
of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay its
Obligations to the extent set forth in Article XIII; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by the Company under its Obligations,
subject to the rights of holders of Specified Senior Indebtedness of the
Company to receive distributions otherwise payable to Securityholders.
SECTION 13.08 Subordination May Not Be Impaired by the Company. No
right of any holder of Specified Senior Indebtedness of the Company to enforce
the subordination of the Obligations of the Company shall be impaired by any act
or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 13.09 Rights of Trustee and Paying Agent. Notwithstanding
Section 13.03, the Trustee or Paying Agent may continue to make payments
pursuant to the Guaranty and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a
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Trust Officer of the Trustee receives written notice satisfactory to it that
payments may not be made under this Article XIII. The Company, the Trustee, the
Registrar or co-registrar, the Paying Agent, a Representative or a holder of
Specified Senior Indebtedness of the Company may give the notice; provided,
however, that, if an issue of Specified Senior Indebtedness of the Company has a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Specified Senior Indebtedness of the Company with the same rights it would have
if it were not Trustee. The Registrar and co-registrar and the Paying Agent may
do the same with like rights. The Trustee shall be entitled to all the rights
set forth in this Article 12 with respect to any Specified Senior Indebtedness
of the Company which may at any time be held by it, to the same extent as any
other holder of such Specified Senior Indebtedness of the Company; and nothing
in Article 7 shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article 12 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.07.
SECTION 13.10 Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Specified Senior
Indebtedness of the Company, the distribution may be made and the notice given
to their Representative (if any).
SECTION 13.11 Article XIII Not to Prevent Defaults Under the
Guaranty or Limit Right to Demand Payment. The failure to make a payment
pursuant to the Guaranty by reason of any provision in this Article shall not be
construed as preventing the occurrence of a default under the Guaranty. Nothing
in this Article XIII shall have any effect on the right of the Securityholders
or the Trustee to make a demand for payment on the Company pursuant to Article
XIII.
SECTION 13.12 Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article XIII, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 13.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representative for the holders of Specified
Senior Indebtedness of the Company for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XIII. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Specified Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article XIII, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Specified Senior Indebtedness of
the Company held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article XIII, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 12.
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SECTION 13.13 Trustee to Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Specified Senior Indebtedness of the Company as provided in this Article XIII
and appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 13.14 Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Company. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Specified Senior Indebtedness of the Company
and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or any other Person, money or assets to which any
holders of such Specified Senior Indebtedness shall be entitled by virtue of
this Article XIII or otherwise.
SECTION 13.15 Reliance by Holders of Specified Senior Indebtedness
of the Company on Subordination Provisions. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Specified Senior Indebtedness of the Company, whether such Specified Senior
Indebtedness was created or acquired before or after the issuance of the
Security, to acquire and continue to hold, or to continue to hold, such
Specified Senior Indebtedness and such holder of Specified Senior Indebtedness
shall be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Specified
Senior Indebtedness.
ARTICLE XIV
Miscellaneous
SECTION 14.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 14.02 Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
(a) if to the Issuers:
c/o Nakornthai Strip Mill Public Company Limited
Chonburi Industrial Estate (Bowin)
358 Moo 6
Highway 331
Bowin, Sriracha, Chonburi 20230
Thailand
Attention: John W. Schultes
if to the Trustee:
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The Chase Manhattan Bank
Global Trust Services
450 West 33rd Street, 15th Floor
New York, New York 10001-2697
Attention: Valerie Dunbar
The Issuers or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be
mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 14.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or refrain
from taking any action under this Indenture, the Issuers and the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form reasonably satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 14.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual 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;
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(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 14.06 When Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Issuers or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuers shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 14.07 Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 14.08 Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 14.09 Governing Law. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY. THE VARIOUS AGREEMENTS CREATING AND GOVERNING THE COLLATERAL
WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK AND THAILAND.
SECTION 14.10 Waiver of Immunities. To the extent that the Issuers
or the Company or any of their respective properties, assets or revenues may
have or may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any such legal action, suit
or proceeding, from setoff or counterclaim, from the competent jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any competent jurisdiction in which proceedings
may at any time be commenced, with respect to its obligations under the
Securities, this Indenture, the Guaranty or any of the transactions contemplated
hereby
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or thereby, the Issuers and the Company hereby irrevocably and unconditionally
waives and agrees not to plead or claim, any such immunity and consent to such
relief and enforcement.
SECTION 14.11 Consent to Jurisdiction; Appointment of Agent for
Service of Process; Waiver of Jury Trial. (a) The Issuers and the Company agree
that any suit, action or proceeding against Issuers or the Company arising out
of or relating to the Securities, this Indenture, the Guaranty or any of the
transactions contemplated hereby or thereby may be instituted in any state or
U.S. federal court in the Borough of Manhattan, in the City of New York, and any
appellate court from any thereof, and each of them irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding. The
Issuers and the Company irrevocably waive, to the fullest extent permitted by
law, any objection to any suit, action, or proceeding that may be brought in
connection with the Securities, this Indenture, the Guaranty or any of the
transactions contemplated hereby or thereby, in such courts whether on the
grounds of venue, residence or domicile or on the ground that any such suit,
action or proceeding has been brought in an inconvenient forum. The Issuers and
the Company agree that final judgment in any such suit, action or proceeding
brought in such court shall be conclusive and binding upon the Issuers or the
Company, as the case may be, and may be enforced in any court to the
jurisdiction of which the Issuers or the Company, as the case may be, is subject
by a suit upon such judgment; provided that service of process is affected upon
the Issuers or the Company, as the case may be, in the manner provided by this
Section 14.11.
(b) The Issuers and the Company irrevocably appoints CT Corporation
System, with offices on the date hereof at 1633 Broadway, New York, New York
10019, as its authorized agent (the "Authorized Agent"), upon whom process may
be served in any suit, action or proceeding arising out of or relating to the
Securities, this Indenture, the Guaranty or the transactions contemplated hereby
or thereby which may be instituted in any state or U.S. Federal court in the
Borough of Manhattan, The City of New York, New York, and expressly accepts the
non-exclusive jurisdiction of any such court in respect of any such suit, action
or proceeding. Each of the Issuers and the Company hereby represents and
warrants that the Authorized Agent has accepted such appointment and has agreed
to act as said agent for service of process, and the Issuers and the Company
agree to take any and all action, including the filing of any and all documents
that may be necessary to continue such respective appointment in full force and
effect for a period of ten years from the date of this Indenture. Service of
process upon the Authorized Agent shall be deemed, in every respect, effective
service of process upon the Issuers and the Company. Notwithstanding the
foregoing, any action involving the Issuers or the Company arising out of or
relating to the Securities, this Indenture, the Guaranty or the transactions
contemplated hereby or thereby may be instituted in any court of competent
jurisdiction in any other jurisdiction.
(c) Each of the parties to this Indenture hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to the Securities, this Indenture, any Guaranty or the
transactions contemplated hereby or thereby.
SECTION 14.12 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Issuers shall not have any liability
for any obligations of the Issuers under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such
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obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 14.13 Successors. All agreements of the Issuers and the
Company in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 14.14 Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 14.15 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
NSM STEEL (DELAWARE), INC.
By: /s/ John W. Schultes
---------------------------
Name: John W. Schultes
Title: President/CEO
NSM STEEL COMPANY, LTD.
By: /s/ John W. Schultes
---------------------------
Name: John W. Schultes
Title: President/CEO
NAKORNTHAI STRIP MILL PUBLIC COMPANY
LIMITED
By /s/ John W. Schultes
---------------------------
Name: John W. Schultes
Title: President/CEO
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Valerie Dunbar
---------------------------
Name: Valerie Dunbar
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On December 4, 1997, before me personally came ______________, to me
known, who, being by me duly sworn, did depose and say that he is the
_______________ of United States Trust Company of New York, a New York banking
corporation and that he signed his name thereto on behalf of such corporation.
----------------------------
Notary Public in and for
the State of New York
Name:
-----------------------
My commission expires:
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