SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.6
SECOND
SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”), dated as of
, 2007, by and between MITTAL STEEL USA INC., a Delaware corporation (f/k/a International Steel
Group Inc.) (the “Company”), MITTAL STEEL COMPANY N.V., a company organized under the laws
of The Netherlands (the “Parent”), and THE BANK OF NEW YORK, as Trustee (the
“Trustee”). All capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in that certain Indenture (the “Indenture”), dated as of April
14, 2004, among the Company, the Trustee and the other Guarantors party thereto.
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee the Indenture,
providing for the issuance of the Notes, as supplemented by that certain First Supplemental
Indenture, dated as of August 23, 2004;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company and the Trustee may amend or
supplement the Indenture with the written consent of the Holders of at least a majority in
principal amount of the Notes then outstanding voting as a single class;
WHEREAS, the Holders of at least a majority in principal amount of the Notes outstanding
voting as a single class have consented in writing to the amendment of Sections 1.01 and 4.03 of
the Indenture, and the Company and Trustee now wish to amend the Indenture as set forth in this
Supplemental Indenture in accordance therewith;
WHEREAS, the Parent offered to fully and unconditionally guarantee the Company’s payment
obligations under the Notes and the Indenture on a senior, unsecured basis, if the proposed
amendments to the Indenture set forth herein became effective; and
WHEREAS, the Parent wishes to issue its guarantee of the Company’s payment obligations under
the Notes and the Indenture.
NOW, THEREFORE, each party agrees as follows for the benefit of the other parties and for the
equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE 1.
AMENDMENTS
Section 1.01 Article One of the Indenture is hereby amended by adding the following additional
definitions to Section 1.01 of the Indenture in their proper alphabetical locations:
“Parent” means, as of , 2007, Mittal Steel Company N.V., a company organized
under the laws of The Netherlands, or any other Person who thereafter is or becomes the beneficial
owner, directly or indirectly, of more than 50% of the total voting stock or total common equity of
the Company.
“Parent Guarantee” means an unconditional Guarantee by a Parent, on a senior unsecured basis,
of all monetary obligations of the Company under this Indenture and any outstanding Notes.
Section 1.02 Article Four of the Indenture is hereby amended by adding the following paragraph
as a new Section 4.03(c):
(c) Notwithstanding anything to the contrary contained in Sections 4.03(a) and 4.03(b),
if the Parent (i) executes and delivers a Parent Guarantee and (ii) otherwise complies with
TIA § 314(a), the Company shall have no obligations pursuant to Sections 4.03(a) and
4.03(b).
ARTICLE 2.
PARENT GUARANTEE
Section 2.01 Simultaneously with the execution of this Supplemental Indenture, the Parent
shall execute and deliver a guarantee of the Company’s payment obligations under the Notes and the
Indenture in substantially the form set forth in Exhibit A hereto.
ARTICLE 3.
MISCELLANEOUS
Section 3.01 This Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Indenture with respect to the Notes and, as provided in the Indenture, this
Supplemental Indenture forms a part thereof with respect to the Notes. Except as herein modified,
the Indenture is in all respects ratified and confirmed with respect to the Notes and all the
terms, provisions and conditions thereof shall be and remain in full force and effect with respect
to the Notes and every Holder of Notes shall be bound hereby. Except as expressly otherwise
defined, the use of the terms and expressions herein is in accordance with the definitions, uses
and constructions contained in the Indenture.
Section 3.02 If any provision of this Supplemental Indenture limits, qualifies or conflicts
with any other provision hereof or of the Indenture that is required to be included in the
Indenture by any of the provisions of the TIA, such required provision shall control.
Section 3.03 If any provision of this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 3.04 This Supplemental Indenture will be governed by and construed in accordance with
the law of the State of New York without giving effect to applicable principles of conflicts of law
to the extent that the application of the laws of another jurisdiction would be required thereby.
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Section 3.05 This parties may sign any number of copies of this Supplemental Indenture. Each
signed copy will be an original, but all of them together represent the same agreement.
Section 3.06 The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Company and the Parent.
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be executed as of
the date first above written.
| MITTAL STEEL USA INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| MITTAL STEEL COMPANY N.V. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| THE BANK OF NEW YORK, as Trustee | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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EXHIBIT A
FORM OF PARENT GUARANTEE
GUARANTEE dated as of , 2007 by MITTAL STEEL COMPANY N.V., a company organized
under the laws of The Netherlands (the “Parent Guarantor”), in favor of each Holder of the
6.500% Senior Notes due 2014 (the “Notes”) issued by the Company under the Indenture and
THE BANK OF NEW YORK, a New York banking corporation, as trustee under the Indenture (the
“Trustee”). Defined terms used herein shall have the respective meanings given thereto in
Article I.
RECITAL
The Company, the Guarantors and the Trustee have entered into the Indenture providing, among
other things, for the issuance of the Notes. The Parent Guarantor now proposes in connection with
the transactions contemplated by the Second Supplemental Indenture to guarantee the payment of the
Notes and the other obligations of the Company under the Indenture and the Notes.
ARTICLE 1
DEFINITIONS
“Business Day” has the meaning given thereto in the Indenture.
“Company” means Mittal Steel USA Inc. (formerly, International Steel Group Inc.), a
Delaware corporation, and any and all successors thereto.
“Guarantors” has the meaning given thereto in the Indenture.
“Holders” has the meaning given thereto in the Indenture.
“Indebtedness” has the meaning given thereto in the Indenture.
“Indenture” means the Indenture dated as of April 14, 2004, as supplemented as of
August 23, 2004, among the Company, the Guarantors named therein and the Trustee, as it may be
further amended, restated or supplemented from time to time (including, without limitation, as
amended and supplemented on the date hereof under the Second Supplemental Indenture).
“Notes” have the meaning given thereto in the Preamble.
“Parent Guarantor” has the meaning given thereto in the Preamble, and its respective
successors and assigns.
“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
“Registrar” has the meaning given thereto in the Indenture.
“Second Supplemental Indenture” means the Second Supplemental Indenture dated as of
, 2007 between the Company and the Trustee.
“Special Interest” has the meaning given thereto in the Indenture.
ARTICLE 2
GUARANTEE OF NOTES
SECTION 2.01 Guarantee.
(a) The Parent Guarantor hereby unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of any other provision of this
Guarantee, the Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:
(i) the principal of, premium, if any, and Special Interest, if any, and
interest on, the Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption, or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee under this Guarantee, the Indenture or the
Notes will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Parent Guarantor will be obligated to pay the same immediately.
The Parent Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) The Parent Guarantor hereby agrees that, to the fullest extent permitted by
applicable law, its obligations hereunder are unconditional, irrespective of the validity,
regularity or enforceability of any other provision of this Guarantee, the Notes, or the
Indenture, the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a Parent Guarantor.
The Parent Guarantor hereby waives, to the fullest extent permitted by applicable law,
diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands
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whatsoever and covenants that this Guarantee shall
not be discharged except by complete performance of the obligations contained in the Notes,
the Indenture and this Guarantee.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Parent Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Parent Guarantor, any amount paid
either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
will be reinstated in full force and effect.
(d) The Parent Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. The Parent Guarantor further agrees
that, as between it, on the one hand, and the Holders and the Trustee, on the other hand,
(1) the maturity of the obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Indenture, such obligations (whether or not due
and payable) will forthwith become due and payable by the Parent Guarantor for the purposes
of this Guarantee.
SECTION 2.02 Ranking of Guarantee.
The obligations of the Parent Guarantor under this Guarantee will be a general unsecured
obligation of the Parent Guarantor, will be equal in right of payment with any existing and future
senior unsecured Indebtedness of the Parent Guarantor and will be senior in right of payment to any
existing or future subordinated Indebtedness of the Parent Guarantor.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01 Notices.
Any notice or communication by the Parent Guarantor or the Trustee to the other is duly given
if in writing and delivered in Person or mailed by first-class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the other’s address.
If to the Parent Guarantor:
Mittal Steel Company N.V.
Xxxxxxxx 00
Xxx Xxxxxxxxxxx
Telecopier Number: x00-00-000-0000
Attention: Company Secretary
Xxxxxxxx 00
Xxx Xxxxxxxxxxx
Telecopier Number: x00-00-000-0000
Attention: Company Secretary
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with a copy to:
Mittal Steel USA Inc.
0 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Telecopier Number: (000) 000-0000
Attention: Secretary
0 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Telecopier Number: (000) 000-0000
Attention: Secretary
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx XX 00000
Telecopier: (000) 000-0000
Attention: Corporate Trust Administration
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx XX 00000
Telecopier: (000) 000-0000
Attention: Corporate Trust Administration
The Parent Guarantor or the Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered, five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Parent Guarantor mails a notice or communication to Holders, it will mail a copy to the
Trustee at the same time.
SECTION 3.02 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or stockholder of the
Parent Guarantor, as such, will have any liability for any obligations of the Parent Guarantor
under the Notes, this Indenture or this Guarantee or for any claim based on, in respect of, or by
reason of, such obligations or their creation.
SECTION 3.03 Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
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EXTENT THAT THE
APPLICATION OF LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 3.04 No Adverse Interpretation of Other Agreements.
This Guarantee may not be used to interpret another indenture, loan, security or debt
agreement of the Parent Guarantor. No such indenture, loan, security or debt agreement may be used
to interpret this Guarantee.
SECTION 3.05 Successors.
Except as otherwise provided in Section 3.06, this Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the Parent Guarantor
and the successors thereof, and shall inure to the benefit of (and be enforceable by) the Trustee
and the Holders from time to time, or their respective successors or assignees, until the Indenture
shall have been satisfied and discharged in accordance with the terms thereof, and the principal of
and interest, if any, on the Notes, and the obligations of the Parent Guarantor in respect of this
Guarantee, have been satisfied by payment in full.
SECTION 3.06 Release.
The Parent Guarantor may be released from this Guarantee upon the sale or other transfer of
the capital stock of the Company or of all or substantially all of the assets of the Company to an
entity that is not the Parent Guarantor or a subsidiary of the Parent Guarantor, which release
shall be effective (a) only upon (1) the execution and delivery by such transferee of a guarantee
of the payment of the Notes and the other obligations of the Company under the Indenture and the
Notes, in form and substance substantially similar to this Guarantee, in favor of each Holder and
the Trustee, and (2) written notice by the Parent Guarantor to the Trustee accompanied by an
officer’s certificate certifying as to compliance with this Section 3.06, and (b) without any
further action on the part of the Trustee or any Holder. Upon any such release in compliance with
the above requirements, the Trustee shall deliver an appropriate instrument evidencing such
release. Any actions taken pursuant to this Section 3.06 shall not release the Company as a
primary obligor under the Indenture or the Notes.
SECTION 3.07 Severability.
In case any provision of this Guarantee is invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be affected or impaired
thereby. Except as otherwise provided herein, this Guarantee may not be waived, amended, released
or otherwise changed except with the consent of the Parent Guarantor and not less than a majority
in aggregate principal amount of the then outstanding Notes.
SECTION 3.08 Counterpart Originals.
The parties may sign any number of copies of this Guarantee. Each signed copy shall be deemed
an original, but all of them together represent the same agreement.
IN WITNESS WHEREOF, the Parent Guarantor has caused this Guarantee to be duly executed all as
of the date and year first written above.
| MITTAL STEEL COMPANY N.V. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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