Exhibit 4.1
EXECUTION
REPUBLIC ENGINEERED PRODUCTS LLC
and
BLUE STEEL CAPITAL CORP.
as Issuers
and
Blue Bar, L.P.
N&T Railway Company LLC
as Guarantors
--------------------------------------------
LaSalle Bank National Association,
As Trustee
and
LaSalle Bank National Association,
as Collateral Agent
------------------
INDENTURE
Dated as of August 16, 2002
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310 (a)(1) .............................................. 7.10
(a)(2) .............................................. 7.10
(a)(3) .............................................. 7.12
(a)(4) .............................................. N.A.
(a)(5) .............................................. 7.10
(b) ................................................. 7.10
(c) ................................................. N.A.
311 (a) ................................................. 7.11
(b) ................................................. 7.11
(c) ................................................. N.A.
312 (a) ................................................. 2.5
(b) ................................................. 13.3
(c) ................................................. 13.3
313 (a) ................................................. 7.6
(b)(1) .............................................. 7.6
(b)(2) .............................................. 7.6
(c) ................................................. 7.6;13.2
(d) ................................................. 7.6
314 (a) ................................................. 4.6; 4.7; 13.2
(b) ................................................. 11.2
(c)(1) .............................................. 13.4
(c)(2) .............................................. 13.4
(c)(3) .............................................. 13.4
(d) ................................................. 11.7
(e) ................................................. 13.5
(f) ................................................. N.A.
315 (a) ................................................. 7.1
(b) ................................................. 7.5; 13.2
(c) ................................................. 7.1
(d) ................................................. 7.1
(e) ................................................. 6.11
316 (a) (last sentence) ................................. 2.9
(a)(1)(A) ........................................... 6.5
(a)(1)(B) ........................................... 6.4
(a)(2) .............................................. N.A.
(b) ................................................. 6.7
(c) ................................................. 2.15
317 (a)(1) .............................................. 6.8
(a)(2) .............................................. 6.9
(b) ................................................. 2.4
318 (a) ................................................. 13.1
(b) ................................................. N.A.
(c) ................................................. 13.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE .............................. 2
SECTION 1.1 Definitions ........................................................ 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. ................. 27
SECTION 1.3 Rules of Construction. ............................................. 27
ARTICLE II THE NOTES .............................................................. 28
SECTION 2.1 Form and Dating. ................................................... 28
SECTION 2.2 Execution and Authentication. ...................................... 29
SECTION 2.3 Registrar and Paying Agent. ........................................ 30
SECTION 2.4 Paying Agent To Hold Money in Trust. ............................... 30
SECTION 2.5 Holder Lists. ...................................................... 31
SECTION 2.6 Transfer and Exchange. ............................................. 31
SECTION 2.7 Replacement Notes. ................................................. 35
SECTION 2.8 Outstanding Notes. ................................................. 35
SECTION 2.9 Treasury Notes. .................................................... 36
SECTION 2.10 Temporary Notes. ................................................... 36
SECTION 2.11 Cancellation. ...................................................... 36
SECTION 2.12 Defaulted Interest. ................................................ 37
SECTION 2.13 CUSIP Number. ...................................................... 37
SECTION 2.14 Deposit of Moneys. ................................................. 37
SECTION 2.15 Record Date. ....................................................... 37
SECTION 2.16 Computation of Interest. ........................................... 37
ARTICLE III REDEMPTION ............................................................ 38
SECTION 3.1 Optional Redemption. ............................................... 38
SECTION 3.2 Mandatory Redemption. .............................................. 38
SECTION 3.3 Selection of Notes To Be Redeemed. ................................. 38
SECTION 3.4 Notices to Trustee. ................................................ 38
SECTION 3.5 Notice of Redemption. .............................................. 39
SECTION 3.6 Effect of Notice of Redemption. .................................... 40
SECTION 3.7 Deposit of Redemption Price. ....................................... 40
SECTION 3.8 Notes Redeemed in Part. ............................................ 40
ARTICLE IV COVENANTS .............................................................. 41
SECTION 4.1 Payment of Notes. .................................................. 41
SECTION 4.2 Maintenance of Office or Agency. ................................... 41
SECTION 4.3 Corporate Existence. ............................................... 42
SECTION 4.4 Payment of Taxes and Other Claims .................................. 42
SECTION 4.5 Maintenance of Properties, Insurance, and Books and Records;
Compliance with Law; Inspection Rights. ............................ 43
SECTION 4.6 Compliance Certificates. ........................................... 44
SECTION 4.7 Provision of Financial Information; Registration of Notes. ......... 44
SECTION 4.8 Further Assurance to the Trustee or Collateral Agent. .............. 45
SECTION 4.9 Limitation on Additional Indebtedness and Certain Preferred Stock... 45
i
SECTION 4.10 Limitation on Sale-Leaseback Transactions. ................. 48
SECTION 4.11 Limitation on Liens. ....................................... 48
SECTION 4.12 Limitation on Restricted Payments. ......................... 49
SECTION 4.13 Disposition of Proceeds of Asset Sales. .................... 52
SECTION 4.14 Limitation on Transactions with Affiliates. ................ 53
SECTION 4.15 Change of Control. ......................................... 54
SECTION 4.16 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries. .................................... 56
SECTION 4.17 Blue Steel Capital Corp. ................................... 57
SECTION 4.18 Impairment of Security Interest. ........................... 57
SECTION 4.19 Waiver of Stay, Extension or Usury Laws. ................... 58
SECTION 4.20 Restrictions on Activities of Blue Steel Capital Corp. ..... 58
SECTION 4.21 Additional Subsidiary Guarantees. .......................... 58
ARTICLE V SUCCESSORS ........................................................ 59
SECTION 5.1 When Company May Merge, Etc. ............................... 59
SECTION 5.2 Successor Entity Substituted. .............................. 60
ARTICLE VI DEFAULT AND REMEDIES ............................................. 60
SECTION 6.1 Events of Default. ......................................... 60
SECTION 6.2 Acceleration. .............................................. 63
SECTION 6.3 Other Remedies. ............................................ 63
SECTION 6.4 Waiver of Past Default. .................................... 64
SECTION 6.5 Control by Majority. ....................................... 64
SECTION 6.6 Limitation on Suits. ....................................... 64
SECTION 6.7 Rights of Holders To Receive Payment. ...................... 65
SECTION 6.8 Collection Suit by Trustee. ................................ 65
SECTION 6.9 Trustee May File Proofs of Claim. .......................... 66
SECTION 6.10 Priorities. ................................................ 66
SECTION 6.11 Undertaking for Costs. ..................................... 66
ARTICLE VII TRUSTEE ......................................................... 67
SECTION 7.1 Duties of Trustee. ......................................... 67
SECTION 7.2 Rights of Trustee. ......................................... 68
SECTION 7.3 Individual Rights of Trustee. .............................. 69
SECTION 7.4 Trustee's Disclaimer. ...................................... 69
SECTION 7.5 Notice of Defaults. ........................................ 70
SECTION 7.6 Reports by Trustee to Holders. ............................. 70
SECTION 7.7 Compensation and Indemnity. ................................ 70
SECTION 7.8 Replacement of Trustee. .................................... 71
SECTION 7.9 Successor Trustee by Merger, Etc. .......................... 72
SECTION 7.10 Eligibility; Disqualification. ............................. 72
SECTION 7.11 Preferential Collection of Claims Against Issuers. ......... 73
SECTION 7.12 Co-Trustee. ................................................ 73
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE ............................. 74
SECTION 8.1 Satisfaction and Discharge. ................................ 74
ii
SECTION 8.2 Intentionally Omitted. ....................................... 75
SECTION 8.3 Application of Trust Money. .................................. 75
SECTION 8.4 Repayment to Issuers or the Guarantors. ...................... 75
SECTION 8.5 Reinstatement. ............................................... 75
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS ............................... 76
SECTION 9.1 Without Consent of Holders. .................................. 76
SECTION 9.2 With Consent of Holders. ..................................... 77
SECTION 9.3 Compliance with Trust Indenture Act. ......................... 78
SECTION 9.4 Revocation and Effect of Consents. ........................... 78
SECTION 9.5 Notation on or Exchange of Notes. ............................ 79
SECTION 9.6 Trustee and Collateral Agent To Sign Amendments, Etc. ........ 79
ARTICLE X GUARANTEE .......................................................... 79
SECTION 10.1 Unconditional Guarantee. ..................................... 79
SECTION 10.2 Severability. ................................................ 80
SECTION 10.3 Release of a Guarantor. ...................................... 80
SECTION 10.4 Limitation of Guarantor's Liability. ......................... 81
SECTION 10.5 Guarantors May Consolidate, etc., on Certain Terms. .......... 81
SECTION 10.6 Contribution. ................................................ 81
SECTION 10.7 Waiver of Subrogation. ....................................... 82
SECTION 10.8 Execution of Guarantee. ...................................... 82
SECTION 10.9 Waiver of Stay, Extension or Usury Laws. ..................... 82
SECTION 10.10 Parent Guarantor. ............................................ 83
ARTICLE XI SECURITY DOCUMENTS ................................................ 83
SECTION 11.1 Collateral and Security Documents. ........................... 83
SECTION 11.2 Recording, Etc. .............................................. 83
SECTION 11.3 Certain Dispositions of Collateral Without Release. .......... 85
SECTION 11.4 Release of Collateral. ....................................... 88
SECTION 11.5 Substitute Collateral. ....................................... 91
SECTION 11.6 Eminent Domain and Other Governmental Takings. ............... 93
SECTION 11.7 Trust Indenture Act Requirements. ............................ 95
SECTION 11.8 Suits To Protect the Collateral. ............................. 95
SECTION 11.9 Purchaser Protected. ......................................... 95
SECTION 11.10 Powers Exercisable by Receiver or Trustee. ................... 96
SECTION 11.11 Disposition of Obligations Received. ......................... 96
SECTION 11.12 Determinations Relating to Collateral. ....................... 97
SECTION 11.13 Renewal and Refunding. ....................................... 97
SECTION 11.14 Release upon Termination of the Company's Obligations. ....... 97
ARTICLE XII APPLICATION OF TRUST MONEYS ...................................... 98
SECTION 12.1 Trust Moneys. ................................................ 98
SECTION 12.2 Retirement of Notes. ......................................... 98
SECTION 12.3 Withdrawals of Insurance Proceeds and Condemnation Awards. ... 99
SECTION 12.4 [Intentionally Omitted]. ..................................... 103
SECTION 12.5 Powers Exercisable Notwithstanding Event of Default. ......... 103
iii
SECTION 12.6 Powers Exercisable by Collateral Agent or Receiver. ............ 103
SECTION 12.7 Disposition of Notes Retired. .................................. 103
SECTION 12.8 Investment of Trust Moneys. .................................... 103
ARTICLE XIII MISCELLANEOUS ..................................................... 104
SECTION 13.1 Trust Indenture Act Controls. .................................. 104
SECTION 13.2 Notices. ....................................................... 104
SECTION 13.3 Communications by Holders with Other Holders. .................. 105
SECTION 13.4 Certificate and Opinion of Counsel as to Conditions Precedent. . 105
SECTION 13.5 Statements Required in Certificate and Opinion of Counsel. ..... 105
SECTION 13.6 Rules by Trustee, Paying Agent, Registrar, Collateral Agent. ... 106
SECTION 13.7 Legal Holidays. ................................................ 106
SECTION 13.8 Governing Law. ................................................. 106
SECTION 13.9 No Recourse Against Others. .................................... 106
SECTION 13.10 Successors. .................................................... 106
SECTION 13.11 Duplicate Originals. ........................................... 106
SECTION 13.12 Severability. .................................................. 107
SECTION 13.13 Table of Contents, Headings, Etc. .............................. 107
Exhibit A Form of Note
Exhibit B Form of Supplemental Indenture
Exhibit C Form of Mortgage
Exhibit D Form of Security Agreement
Exhibit E Form of Pledge Agreement
Schedule 1.1(a) Independent Appraiser; Independent Financial Advisor
Schedule 4.9(b)(ii) Schedule of Indebtedness Outstanding on the Issue Date
INDENTURE dated as of August 16, 2002, among REPUBLIC ENGINEERED PRODUCTS
LLC, a Delaware limited liability company (the "Company"), and BLUE STEEL
CAPITAL CORP., a Delaware corporation, as Issuers (the "Issuers"), BLUE BAR,
L.P., a Delaware limited partnership, and N&T RAILWAY COMPANY LLC, a Delaware
limited liability company, as Guarantors (the "Guarantors"), LASALLE BANK
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee"), and LASALLE BANK NATIONAL ASSOCIATION, in its capacity as Collateral
Agent.
Pursuant to an Indenture, dated as of August 13, 1999 (as amended,
supplemented or otherwise modified from time to time, the "RTI Indenture"),
among Republic International Technologies, LLC and RTI Capital Corp., as issuers
(collectively "RTI"), certain subsidiaries of RTI, as guarantors, and the Bank
of New York (as successor to the United States Trust Company of New York), as
trustee and collateral agent (the "RTI Notes Trustee"), RTI issued $425 million
of 13 and 3/4% Senior Secured Notes due 2009 (as amended, supplemented or
otherwise modified from time to time, the "RTI Notes"). The RTI Notes were
secured by among other things, liens in favor of the RTI Notes Trustee on the
property and assets constituting the Collateral.
On April 2, 2001, RTI and certain of its subsidiaries commenced cases in
the United States Bankruptcy Court for the Northern District of Ohio, Eastern
Division (the "Bankruptcy Court"), under Chapter 11 of the Bankruptcy Code.
On the date hereof, the Company is acquiring a substantial portion of the
assets of RTI and its subsidiaries (including the Collateral) pursuant to the
following:
(i) an Asset Purchase Agreement, dated June 7, 2002 (as amended,
supplemented or otherwise modified from time to time, the "RTI Asset
Purchase Agreement"), among RTI and certain of its subsidiaries, and the
Company; and
(ii) an order of the Bankruptcy Court, dated July 23, 2002 (the "Sale
Order"), entitled "Amended Order Superseding Order (A) Approving Sale of
Certain Assets Free and Clear Of Liens And Stamp or Transfer Taxes Pursuant
to Bankruptcy Code Sections 363(f) and 1146(c), (B) Approving Assumption
and Assignment of Executory Contracts and Unexpired Leases Subject to the
Sale Pursuant to Bankruptcy Code Section 364 and, (C) Approving Settlement
Agreement with USWA, and (D) Waiving the Requirements of Local Bankruptcy
Rule 9013-1(a) and the Ten Day Stay Period Provided by Bankruptcy Rule
6004(g), to which is attached and made a part thereof the Stipulation
Settling Disputes Between Republic Technologies International, LLC, RT
Acquisition LLC, Fleet Capital Corporation, as agent, and Majority
Noteholders of Senior Secured 13-3/4% Notes (the "RTI Majority
Noteholders"), dated July 11, 2002 (the "Stipulation").
Pursuant to the Sale Order, and in exchange for the issuance of the Notes,
all Liens on the property and assets to be purchased pursuant to the RTI Asset
Purchase Agreement and the Sale Order which constitutes collateral securing the
RTI Notes and which is subject to the jurisdiction of the Bankruptcy Court are
to be released at the time of the purchase. This Indenture and the Security
Documents are not intended to affect or impair (i) the Liens created by the RTI
Indenture and related security documents over any properties or assets which are
subject to such
Liens and which are not purchased pursuant to the RTI Asset Purchase Agreement
and the Sale Order nor (ii) the jurisdiction of the Bankruptcy Court over such
properties and assets.
The Issuers and the Guarantors have duly authorized the execution and
delivery of this Indenture to provide for (i) the issuance of the 10% Senior
Secured Notes due 2009 (the "Notes") as part of the consideration for the
acquisition contemplated by the RTI Asset Purchase Agreement and (ii) the
issuance of the related Guarantees of the Guarantors. In addition, as part of
the consideration for the issuance of the Notes and in order to secure the
obligations of the Issuers and the Guarantors with respect to the Notes, the
Parent Guarantor, the Company and certain of its Subsidiaries have duly
authorized the execution and delivery of the Security Documents pursuant to
which the Parent Guarantor, the Company and such Subsidiaries are granting new
Liens in favor of the Trustee and/or the Collateral Agent, as the case may be,
in the Collateral and the equity interests in the Company, all of which
Collateral (other than the equity interests in the Company) was part of the
collateral securing the RTI Notes prior to the acquisition contemplated by the
RTI Asset Purchase Agreement and the Sale Order.
In furtherance of the Sale Order and the Stipulation, the Notes initially
will be issued to the Republic Liquidating Trust (the "Liquidation Trust") for
the benefit of holders of the RTI Notes. The Notes will be held in such
Liquidation Trust until such time as (i) the registration of the distribution of
the Notes from the Liquidation Trust to the beneficiaries of the Liquidation
Trust under the Securities Act of 1933, as amended, is effective, (ii)
distribution of the Notes from the Liquidation Trust to the beneficiaries of the
Liquidation Trust is consummated, and (iii) as a result of such registration and
distribution, the Issuers, as issuers of the Notes, shall have caused the Notes
to be freely transferable as unrestricted securities that are immediately
saleable by the holders thereof (other than holders who are control persons or
affiliates of the Issuers or any holder who by virtue of its own legal status
under the Securities Act or by agreement is subject to a restriction on transfer
of the Notes) in the United States of America.
The parties hereto agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Acquired Indebtedness" means (i) Indebtedness of any Person existing at
the time such Person is or became a Restricted Subsidiary or is assumed in an
Asset Acquisition by the Company excluding Indebtedness incurred in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition and (ii) Indebtedness secured by a Lien encumbering any
asset acquired by the Company or any Restricted Subsidiary.
"Adjusted Net Assets" has the meaning provided in Section 10.6.
2
"Affiliate" as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to cause the direction of the management or policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.
"Affiliate Transaction" has the meaning provided in Section 4.14.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial interests in a Global Note, the rules and procedures of the
Depository, Euroclear or Clearstream that apply to such transfer and exchange.
"Asset Acquisition" means (a) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, by the Company or any of the Restricted
Subsidiaries in any other Person, in either case pursuant to which such Person
shall become a Restricted Subsidiary of the Company or shall be merged with or
into the Company or any of the Restricted Subsidiaries or (b) any acquisition by
the Company or any of the Restricted Subsidiaries of the assets of any Person
which constitute substantially all of an operating unit or business of such
Person.
"Asset Sale" means (i) any direct or indirect sale, conveyance, transfer,
lease or other disposition of property or assets (including by way of a sale and
leaseback or securitization) of the Company or any Restricted Subsidiary (each
referred to in this definition as a "disposition") or (ii) the direct or
indirect issuance or sale of Capital Stock of any Restricted Subsidiary, in each
case, other than: (a) a disposition of Cash Equivalents, Investment Grade
Securities, or obsolete, worn out or surplus equipment in the ordinary course of
business; (b) the disposition of all or substantially all of the assets of the
Company in a manner permitted pursuant to the provisions described in Article V;
(c) any Restricted Payment that is permitted to be made, and is made, under
Section 4.12; (d) any disposition or series of related dispositions of property
or assets not constituting Collateral with an aggregate Fair Market Value of
less than $1.0 million; (e) any disposition of property or assets (including an
issuance of Capital Stock) by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Restricted Subsidiary; (f) any financing
transaction with respect to the CAST-ROLL Facility and any other property not
constituting Collateral built or acquired by the Company or any Restricted
Subsidiary after the Issue Date, including, without limitation, sale-leasebacks
and asset securitizations made in compliance with Section 4.10; (g) any
disposition of inventory and work-in-process in the ordinary course of business;
(h) issuances of Capital Stock (other than Disqualified Stock) as directors'
qualifying shares or as investments by foreign nationals mandated by applicable
law; and (i) the incurrence of any Permitted Lien. For the avoidance of doubt,
the definition of Asset Sale does not include any sale and leaseback of
Collateral or any securitization of Collateral, both of which are prohibited by
Section 4.10 of this Indenture.
3
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capitalized Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during the
initial term thereof as determined in accordance with GAAP, discounted from the
last date of such initial term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capitalized Lease
Obligation with a like term in accordance with GAAP. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the case
of any lease which is terminable by the lessee upon the payment of a penalty,
such net amount shall also include the amount of such penalty, but no rent shall
be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated. "Attributable Value" means, as to a
Capitalized Lease Obligation under which any Person is at the time liable and at
any date as of which the amount thereof is to be determined, the capitalized
amount thereof that would appear on the face of a balance sheet of such Person
in accordance with GAAP.
"Authentication Order" has the meaning provided in Section 2.2.
"Average Life to Stated Maturity" means, with respect to any Indebtedness,
as at any date of determination, the quotient obtained by dividing (a) the sum
of the products of (i) the number of years (or any fraction thereof) from such
date to the date or dates of each successive scheduled principal payment
(including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (ii) the amount of each such principal payment by (b)
the sum of all such principal payments.
"Bankruptcy Court" has the meaning provided in the recitals.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Base Amount" has the meaning provided in Section 4.12(b)(vi).
"Blue Bar" means Blue Bar, L.P., a Delaware limited partnership.
"Board of Directors" means, with respect to any Person, the Board of
Directors or comparable governing body (which may be the Board of Directors of a
managing general partner of a partnership or managing member of a limited
liability company or the Board of Directors of its managing general partner or
managing member, as the case may be) of such Person or any committee thereof
authorized to act for it hereunder. Unless the context requires otherwise,
"Board of Directors" refers to the Board of Directors of the Company.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary or other officer
of such Person to have been duly adopted by the Board of Directors of such
Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
4
"Business Day" means any day except a Saturday, a Sunday or any day on
which banking institutions in New York, New York or Chicago, Illinois are
required or authorized by law or other governmental action to be closed.
"Canadian Drawn Steel Proceeds" means all cash constituting the proceeds of
the sale or disposition of assets of Canadian Drawn Steel Company Inc. actually
received either by the holders of the RTI Notes or the holders of the Notes, as
the case may be, net of all costs, expenses and liabilities incurred by RTI and
the RTI Notes Trustee in connection with such sale or disposition.
"Capital Expenditures" means, with respect to the Company, for any period,
on a consolidated basis for the Company and the Restricted Subsidiaries, the
aggregate of all expenditures during such period which, as determined in
accordance with GAAP, are required to be included in property, plant or
equipment or a similar fixed asset account.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of, such Person's capital stock (including,
without limitation, partnership or membership interests in a partnership or a
limited liability company or any other interest or participation that confers on
a Person the right to receive a share of the profits and loss of, or
distributions of assets of, the issuing Person) whether outstanding on the Issue
Date or issued after the Issue Date, and any and all rights, warrants or options
exchangeable for or convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
property (whether real, personal or mixed) that is required to be classified and
accounted for as a capital lease obligation under GAAP, and, for the purposes of
this Indenture, the amount of such obligation at any date shall be the
capitalized amount thereof at such date, determined in accordance with GAAP.
"Cash Equivalents" means, at any time,
(A) with respect to Asset Sales of Collateral: (i) wire transfers of
U.S. dollars in immediately available funds, (ii) certified checks, (iii)
any evidence of Indebtedness with a maturity of 30 days or less issued or
directly and fully guaranteed or issued by the United States of America or
any agency or instrumentality thereof (provided the full faith and credit
of the United States of America is pledged in support thereof), and (iv)
repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally guaranteed by the
United States Government or issued by any agency thereof and backed by the
full faith and credit of the United States, in each case maturing within 30
days from the date of acquisition; provided, however, that the terms of
such agreements comply with the guidelines set forth in the Federal
Financial Agreements of Depository Institutions with Securities Dealers and
Others, as adopted by the Comptroller of the Currency; or
(B) with respect to any other application: (i) any evidence of
Indebtedness with a maturity of 365 days or less issued or directly and
fully guaranteed or insured by the United States of America or any agency
or instrumentality thereof (provided that the full
5
faith and credit of the United States of America is pledged in support
thereof); (ii) certificates of deposit or acceptances with a maturity of
365 days or less of any financial institution that is a member of the
Federal Reserve System having combined capital and surplus and undivided
profits of not less than $250.0 million; (iii) commercial paper with a
maturity of 365 days or less issued by a corporation (except an Affiliate
of the Company) organized under the laws of any state of the United States
or the District of Columbia and rated at least A-1 by Standard & Poor's
Corporation ("S&P") or at least P-1 by Xxxxx'x Investors Service, Inc.
("Moody's"); (iv) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case
maturing within one year from the date of acquisition; provided, however,
that the terms of such agreements comply with the guidelines set forth in
the Federal Financial Agreements of Depository Institutions with Securities
Dealers and Others, as adopted by the Comptroller of the Currency; (v)
investment funds investing 95% of their assets in securities of the types
described in clauses (i)-(iv) above; and (vi) 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.
"CAST-ROLL Facility" means (i) all now-owned or after-acquired real
property and equipment (including the #4 Melt Shop) of the Company used in
connection with the facility commonly known as the "Cast-Roll Facility" and
located at 0000 Xxxxxxxxxx Xxxx, X.X., Xxxxxx, Xxxx, and used primarily in
connection with the Company's business and operations at such location, (ii) all
existing buildings, structures and other improvements located or erected
thereon, (iii) all Real Estate Fixtures, (iv) all permits, licenses, franchises,
certificates, consents, approvals and authorizations furnished in respect of the
real property and improvements located thereon including, without limitation,
building permits, certificates of occupancy and environmental certificates, (v)
all leases, licenses and occupancy and concession agreements in respect of the
real property and improvements located thereon and all rents, receipts, fees and
other amounts payable thereunder, and (vi) all general intangibles, documents
and proceeds (as each such term is defined in the UCC) relating to the
foregoing. For the avoidance of doubt, it is intended that the term "CAST-ROLL
Facility" shall not mean or include any properties or assets that prior to the
date hereof were security for the RTI Notes under the RTI Indenture or the
security documents related thereto.
"Certificated Notes" has the meaning provided in Section 2.1(d).
"Clearstream" means Clearstream International.
"Change of Control" means at any time the occurrence of one or more of the
following events:
(a) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all the assets of the Company and its
Subsidiaries, taken as a whole, to a person other than the Permitted
Holders; or
6
(b) following an IPO (as defined below), (i) the acquisition by any
person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act, or any successor provision), including any group
acting for the purpose of acquiring, holding or disposing of securities
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than
the Permitted Holders, in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business combination
or purchase of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision), of 35% or more of the total
voting power of the Capital Stock of the Company and (ii) the Permitted
Holders beneficially own (as defined above), directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the Voting Stock
of the Company than such other person or group and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors; or
(c) (i) prior to the completion of an initial public offering of the
Company's equity interests in accordance with a registration statement on
Form S-1 filed with the Securities and Exchange Commission (the "IPO"), the
Permitted Holders shall collectively own, beneficially, directly or
indirectly less then 35% of the total voting and economic interest of the
capital stock or membership interests of the Company, and (ii) following an
IPO, the Permitted Holders shall collectively own, beneficially, directly
or indirectly less than 20% of the total voting and economic interest of
the capital stock or membership interests of the Company; or
(d) (i) prior to an IPO, the Permitted Holders shall not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors or similar
governing body of the Company, or (ii) following an IPO, during any period
of twenty four (24) consecutive calendar months, Continuing Directors shall
cease to constitute a majority of the board of directors or similar
governing body of the Company.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section 4.15.
"Collateral" means, collectively, all of the property and assets
(including, without limitation, Trust Moneys) that are from time to time subject
or required to be made subject to the Lien of the Security Documents.
"Collateral Agent" means LaSalle Bank National Association, as trustee,
under the Intercreditor Agreement and the Security Documents until a successor
replaces it in accordance with the provisions of this Indenture and the Security
Documents, and thereafter, means each such successor.
"Company" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and, thereafter,
means the successor.
7
"Consolidated Cash Flow Available for Fixed Charges" means, with respect to
the Company for any period, (a) the sum of, without duplication, the amounts for
such period, taken as a single accounting period, of (i) Consolidated Net
Income, (ii) Consolidated Non-cash Charges, (iii) Consolidated Interest Expense,
(iv) Consolidated Income Tax Expense, (v) any fees, expenses or non-recurring
charges related to any issuance of Capital Stock, Permitted Investments,
acquisitions, the acquisition or recapitalization of Indebtedness (in each case,
whether or not successful) and fees, expenses or charges related to the
Transactions to the extent reducing Consolidated Net Income for such period,
less (b) any non-cash items to the extent increasing Consolidated Net Income for
such period.
"Consolidated Fixed Charge Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of Consolidated Cash Flow Available
for Fixed Charges for the four quarter period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination (the
"Calculation Date") for which financial statements are available (the "Four
Quarter Period") to (ii) Consolidated Fixed Charges for such Four Quarter
Period. In addition to and without limitation of the foregoing, for purposes of
this definition, "Consolidated Cash Flow Available for Fixed Charges" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to, without duplication, (a) the
incurrence of any Indebtedness by the Company or any of the Restricted
Subsidiaries (and the application of the net proceeds thereof) during the period
commencing on the first day of the Four Quarter Period to and including the
Calculation Date (the "Reference Period"), including, without limitation, the
incurrence of the Indebtedness giving rise to the need to make such calculation
(and the application of the net proceeds thereof), as if such incurrence (and
application) occurred on the first date of the Reference Period, (b) an
adjustment to eliminate or include, as the case may be, the Consolidated Cash
Flow Available for Fixed Charges and Consolidated Fixed Charges of such Person
directly or indirectly attributable to assets which are the subject of any Asset
Sale or Asset Acquisition (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of the Company or
one of the Restricted Subsidiaries (including any person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness) occurring during the
Reference Period, as if such Asset Sale or Asset Acquisition occurred on the
first day of the Reference Period, (c) the retirement of Indebtedness during the
Reference Period which cannot thereafter be reborrowed occurring as if retired
on the first day of the Reference Period, and (d) an adjustment to eliminate any
net after-tax extraordinary gains or losses. For purposes of calculating
"Consolidated Fixed Charges" for this "Consolidated Fixed Charge Coverage
Ratio," (a) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Calculation Date and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness in effect on the Calculation Date, (b)
if interest on any Indebtedness actually incurred on the Calculation Date may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a Eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Calculation Date will be deemed to have been in
effect during the Reference Period and (c) notwithstanding clauses (a) and (b)
of this sentence, interest on Indebtedness determined on a fluctuating basis, to
the extent such interest is covered by agreements relating to Interest Rate
Protection Obligations for the twelve month period following the Calculation
Date, shall be deemed to have accrued at the rate per annum resulting after
giving effect to the operation of such agreements to the extent then applicable.
If the
8
Company or any of the Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, this definition shall give effect to the
incurrence of such guaranteed Indebtedness as if such person or such Restricted
Subsidiary had directly incurred or otherwise assumed such guaranteed
Indebtedness. Notwithstanding the foregoing, for the purposes of making the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period. In
addition, for purposes of this definition, whenever pro forma effect is to be
given to an Asset Acquisition or Investment, pro forma calculations (including,
without limitation, with respect to cost savings and synergies) shall be
determined in accordance with Regulation S-X under the Securities Act and the
interpretations thereof by the SEC; provided that such computation shall be
adjusted from time to time following the Asset Acquisition to eliminate cost
savings and synergies that have either been realized (and therefore are
reflected in actual results) or cannot reasonably be expected to be realized
(whether based upon information and results obtained following the applicable
Asset Acquisition or Investment or otherwise) by the Company and the Restricted
Subsidiaries.
"Consolidated Fixed Charges" means, with respect to the Company for any
period, the sum of, without duplication, the amounts for such period of (a) the
Consolidated Interest Expense of the Company and (b) the aggregate amount of
dividends and other distributions paid or accrued during such period in respect
of Disqualified Capital Stock of the Company and the Restricted Subsidiaries and
Preferred Stock of Restricted Subsidiaries on a consolidated basis.
"Consolidated Income Tax Expense" means, with respect to the Company for
any period, the provision for federal, state, local and foreign income taxes of
the Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the Company for any
period, without duplication, the sum of (i) the interest expense (whether cash
or non-cash) of the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP to the extent
deducted in calculating Consolidated Net Income, including, without limitation,
(a) any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations relating to interest (including any amortization of
discounts), (c) the interest portion of any deferred payment obligation, (d) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and (e) all capitalized interest and
all accrued interest and (ii) the interest component of Capitalized Lease
Obligations or any other obligations representative of interest expense
associated with any Sale-Leaseback Transaction paid, accrued and/or scheduled to
be paid or accrued by the Company and the Restricted Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP to the
extent deducted in calculating Consolidated Net Income.
"Consolidated Net Income" means, with respect to the Company, for any
period, the consolidated net income (or loss) of the Company and the Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (a) all net after-tax extraordinary gains or losses, (b) the
portion of net income (but not losses) of the Company and the Restricted
Subsidiaries allocable to minority interests in unconsolidated persons to the
extent that cash dividends or
9
distributions have not actually been received by the Company or one of the
Restricted Subsidiaries, (c) net income (or loss) of any person combined with
the Company or one of the Restricted Subsidiaries on a "pooling of interests"
basis attributable to any period prior to the date of combination, (d) any gain
or loss realized upon the termination of any employee pension benefit plan, on
an after-tax basis, (e) gains or losses in respect of any Asset Sales by the
Company or one of the Restricted Subsidiaries, (f) the cumulative non-cash
effect of any change in any accounting principle, (g) the non-cash effect of
compensation expense related to the contribution of shares held by any qualified
employee stock ownership trust formed for employees of the Company and the
Restricted Subsidiaries, and (h) the net income of any Restricted Subsidiary of
such person to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, law, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholder(s).
"Consolidated Non-cash Charges" means, the aggregate depreciation,
amortization and other non-cash expenses of the Company and the Restricted
Subsidiaries (including any non-cash charges related to any employee stock
ownership plan and workforce reduction charges) reducing Consolidated Net Income
of the Company and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss or any such charge which required an
accrual of or a reserve for cash charges for any future period).
"Consolidated Tangible Assets" means, as of any date of determination, the
total assets, less goodwill and other intangibles shown on the balance sheet of
the Company and the Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP.
"Continuing Directors" means with respect to any period of twenty four (24)
consecutive calendar months, any member of the Board of Directors of the Company
who (a) was a member of the Board of Directors on the first day of such period
or (b) was nominated for election or elected to the Board of Directors with the
approval of a majority of the Continuing Directors who were members of the Board
of Directors at the time of such nomination or election.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of the execution of this Indenture is located at 000 X.
XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect against
fluctuations in currency values.
"Custodian" has the meaning provided in Section 6.1.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
10
"Default Rate" means 12%; provided that during the period that the
interest rate is increased in accordance with Section 4.7(b), the Default Rate
shall be 13%.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Disqualified Capital 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, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Indebtedness, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
final Stated Maturity of the Notes, but only to the extent such Capital Stock so
matures or is exchangeable or redeemable.
"DTC" means The Depository Trust Company.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Event of Default" has the meaning provided in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Liens" has the meaning ascribed to that term under the
definition of "Permitted Collateral Liens."
"Fair Market Value" or "fair value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the transaction. Fair
Market Value shall be determined by the Board of Directors of the Company acting
in good faith and shall be evidenced by a Board Resolution of the Company
delivered to the Trustee except (a) any determination of Fair Market Value or
fair value made with respect to any parcel of real property and related fixtures
constituting a part of, or proposed to be made a part of, the Collateral shall
be made by an Independent Appraiser, (b) any determination of Fair Market Value
with respect to any assets to be valued at $4.0 million or more that is
contributed as or received in exchange for Capital Stock of the Company that is
to be included in clause (B) of paragraph (a) of Section 4.12 shall be made by
an Independent Financial Advisor; (c) any determination of Fair Market Value
with respect to any Collateral to be valued at $2.0 million or more that is to
be the subject of an Asset Sale shall be made by an Independent Appraiser or
Independent Financial Advisor, as appropriate, and (d) as otherwise indicated in
this Indenture or the Security Documents.
"Funding Guarantor" has the meaning provided in Section 10.6.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are applicable as of the Issue Date.
11
"Global Notes" means Notes, in the form of Exhibit A hereto issued in
accordance with Article II hereof.
"Government Assisted Indebtedness" means Indebtedness of the Company or
any of the Restricted Subsidiaries incurred from any federal, state or local
Governmental Authority, or for which any such Governmental Authority provides
direct or indirect credit support, including under any industrial revenue bonds.
"Government Assisted Indebtedness (New York)" means Government Assisted
Indebtedness from any state or local Governmental Authority of the State of New
York in an aggregate principal amount at any time outstanding not exceeding $5.0
million incurred in connection with (x) the relocation of the following assets
to the Lackawanna Hot Rolled Bar Plant in Blasdell, New York: the quality
verification inspection lines, known as the "QVL"s, from the Canton Plant and
the magnetic analysis inspection stands known as the "MACs" or "ROTOMACs" from
the Chicago Finishing Plant and (y) the acquisition of additional equipment and
fixtures for, and the improvement and refurbishment of, such relocated assets,
provided that no principal payments shall be required to be paid with respect to
such Government Assisted Indebtedness prior to the final Maturity Date of the
Notes except for de minimus amounts required by (i) applicable law or
regulations or (ii) the rules and practices of the state or local Governmental
Authority providing such Government Assisted Indebtedness.
"Government Assisted Indebtedness (Ohio)" means Government Assisted
Indebtedness from any state or local Governmental Authority of the State of Ohio
in an aggregate principal amount at any time outstanding not exceeding $10.0
million incurred in connection with the acquisition of equipment and fixtures
for, and the improvement and refurbishment of, the Four Stand facilities
situated in the Primary Mill at the Lorain Plant located in Lorain, Ohio.
"Governmental Authority" means any government or political subdivision
of the United States or any other country or any agency, authority, board,
bureau, central bank, commission, department or instrumentality thereof or
therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to such government or political subdivision.
"Guarantee" means the guarantee of the Guarantors set forth in Article
X and any additional guarantee of the Notes executed by any Person.
"Guarantor" means any of the Parent Guarantor or Subsidiary Guarantors.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Holders' Pro Rata Share" means: (A) with respect to Indebtedness under
the New Credit Facility, a fraction, (i) the numerator of which is the aggregate
principal amount of Notes outstanding on the date the applicable Net Cash
Proceeds are received and (ii) the denominator of which is the sum of (x) the
aggregate principal amount of Notes outstanding on such applicable date and (y)
if the New Credit Facility requires such Net Cash Proceeds to be applied to
repay or collateralize (in the case of letters of credit) extensions of credit
thereunder, the aggregate principal amount of Indebtedness outstanding under the
New Credit Facility on such
12
applicable date; and (B) with respect to Government Assisted Indebtedness (Ohio)
or Government Assisted Indebtedness (New York), as the case may be, a fraction,
(i) the numerator of which is the aggregate principal amount of Notes
outstanding on the date the applicable Net Cash Proceeds are received and (ii)
the denominator of which is the sum of (x) the aggregate principal amount of
Notes outstanding on such applicable date and (y) if such Government Assisted
Indebtedness requires such Net Cash Proceeds to be applied to repay extensions
of credit thereunder, the aggregate principal amount of such Government Assisted
Indebtedness on such applicable date.
"Xxxx" means, collectively, HIG-Steel Investors, L.P., a Delaware
limited partnership, and HIG-Steel G.P., L.L.C., a Delaware limited liability
company.
"incur" means, with respect to any Indebtedness, to directly or
indirectly, create, incur, assume, issue, guarantee or otherwise become liable
for or with respect to such Indebtedness, and the terms "incurred," "incurrence"
and "incurring" having meanings correlative to the foregoing.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade accounts payable and
other accrued current liabilities incurred in the ordinary course of business
and which are not overdue by more than 180 days, (b) all obligations of such
Person evidenced by bonds, notes, debentures or other similar instruments, (c)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade accounts payable arising in the ordinary course of business, (d)
all Capitalized Lease Obligations of such Person, (e) all Indebtedness referred
to in the preceding clauses of other Persons and all dividends of other Persons,
the payment of which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien
(other than statutory Liens) upon property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness (the amount of
such obligation being deemed to be the lesser of the value of such property or
asset or the amount of the obligation so secured), (f) all guarantees of
Indebtedness referred to in this definition by such Person, (g) all Disqualified
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends, (h) all
Interest Rate Protection Obligations of such Person and (i) any amendment,
supplement, modification, deferral, renewal, extension, refinancing or refunding
of any liability of the types referred to in clauses (a) through (h) above. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined in good faith by the
Board of Directors of the Company of such Disqualified Capital Stock. When any
Person becomes a Restricted Subsidiary, there shall be deemed to have been an
incurrence by such Restricted Subsidiary of all Indebtedness for which it is
liable at the time it becomes a Restricted
13
Subsidiary. If the Company or any of the Restricted Subsidiaries, directly or
indirectly, guarantees Indebtedness of a third Person, there shall be deemed to
be an incurrence of such guaranteed Indebtedness as if the Company or such
Restricted Subsidiary had directly incurred or otherwise assumed such guaranteed
Indebtedness.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms hereof.
"Independent Appraiser" means a reputable, nationally recognized Person
or firm who in the ordinary course of its business appraises property and, where
real property is involved, is a member in good standing of the American
Institute of Real Estate Appraisers, recognized and licensed to do business in
the jurisdiction where such real property is situated who (a) does not, and
whose directors, officers and employees and Affiliates do not, have a direct or
indirect material financial interest in the Company or any of its Subsidiaries,
(b) in the judgment of the Board of Directors of the Company, is otherwise
independent and qualified to perform the task for which it is to be engaged, and
(c) is listed on Schedule 1.1(a).
"Independent Financial Advisor" means a reputable, nationally
recognized investment banking, appraisal, consulting or public accounting firm
(a) which does not, and whose directors, officers and employees and Affiliates
do not, have a direct or indirect material financial interest in the Company or
any of its Subsidiaries and (b) which, in the judgment of the Board of Directors
of the Company, is otherwise independent and qualified to perform the task for
which it is to be engaged, and (c) is listed on Schedule 1.1(a).
"Indirect Participant" means a person who holds a beneficial interest
in a Global Note through a Participant.
"Intercreditor Agreement" means, individually and collectively, (i) the
Pledge Intercreditor Agreement, dated as of the date hereof, by and among Fleet
Capital Corporation (together with its successors and assigns), acting in its
capacity as Administrative Agent under the New Credit Facility, LaSalle Bank
National Association, as trustee, each of the Issuers, and the Guarantors, as
the same may be amended, supplemented or otherwise modified from time to time
and (ii) the Access Intercreditor Agreement, dated as of the date hereof, by and
among Fleet Capital Corporation (together with its successors and assigns),
acting in its capacity as Administrative Agent under the New Credit Facility,
LaSalle Bank National Association, as trustee, each of the Issuers, and the
Guarantors, as the same may be amended, supplemented or otherwise modified from
time to time the .
"interest," when used with respect to any Note, means the amount of all
interest accruing on such Note, including all interest accruing subsequent to
the occurrence of any events specified in Sections 6.1(a) and (b) or which would
have accrued but for any such event.
"Interest Payment Date," when used with respect to any Note, means the
Stated Maturity of an installment of interest specified in such Note.
"Interest Rate," when used with respect to any Note, means 10% per
annum, provided that during the period that the interest rate is increased in
accordance with Section 4.7(b), the Interest Rate shall be 11%.
14
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, (i) any direct or
indirect loan, advance (other than advances to customers and employees for
moving, entertainment, travel expenses and commissions, drawing accounts and
similar expenditures in the ordinary course of business), extension of credit
(other than trade credit) or capital contribution to any Person (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 (ii) any purchase or acquisition
by such Person of any Capital Stock, bonds, notes, debentures or other
securities or evidences of Indebtedness issued by, any other Person.
"Investments" shall not include (x) accounts receivable and extensions of credit
by any Person in the ordinary course of business and (y) Investments to the
extent made with consideration which consists of Capital Stock (other than
Disqualified Capital Stock) of the Company. In addition to the foregoing, any
Currency Agreement shall constitute an Investment hereunder.
"Investment Grade Securities" means (i) securities issued or directly
and fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents), (ii) debt securities or
debt instruments with a rating of BBB- or higher by S&P or Baa3 or higher by
Xxxxx'x or the equivalent of such rating by such rating organization, or, if no
rating of S&P or Xxxxx'x then exists, the equivalent of such rating by any other
nationally recognized securities rating agency, but excluding any debt
securities or instruments constituting loans or advances among the Company and
its Subsidiaries, and (iii) investments in any fund that invests 95% of their
assets in securities in the type described in clauses (i) and (ii) above.
"Issue Date" means August 16, 2002, the date of original issuance of
the Notes.
"Issuers" means the parties named as such in this Indenture, in each
case, until a successor replaces it in accordance with the terms of this
Indenture and, thereafter, includes the successor.
"KPS" means, collectively, Blue Steel Corporation, a Delaware
corporation, KPS Special Situations Fund, L.P., a Delaware limited partnership,
and KPS Supplemental Fund, L.P., a Delaware limited partnership.
"Legal Holiday" means any day other than a Business Day.
"Lien" means any mortgage, charge, lease, lien (statutory or other),
pledge, security interest, encumbrance, claim, hypothecation, assignment for
security, deposit arrangement or preference or other security agreement of any
kind or nature whatsoever. For purposes of the Indenture, a person shall be
deemed to own subject to a Lien any property which it has acquired
15
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement. In no event
shall an operating lease be deemed to constitute a Lien.
"Liquidation Trust" has the meaning provided in the recitals.
"Majority Noteholders" shall mean at any determination thereof the
Holders of more than a majority in aggregate principal amount of the outstanding
Notes as determined in accordance with Section 2.8.
"Maturity Date," when used with respect to the Notes, means the date
specified in such Note as the fixed date on which the principal of such Note is
due and payable.
"Mortgage" means each mortgage instrument (or deed of trust) and
assignment of leases and rents, substantially in the form of Exhibit C hereto
(including such changes to such form as may be necessary or desirable to conform
to applicable local laws or customs regarding property in the jurisdiction where
such instrument is to be recorded), as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Mortgaged Property" means any Real Property that is subject to a
Mortgage.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents, including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents net of (a) brokerage commissions and other reasonable fees and
expenses (including fees and expenses of counsel and investment bankers) related
to such Asset Sale; (b) provisions for all taxes payable as a result of such
Asset Sale, (c) amounts required to be applied to the repayment of principal and
interest on Indebtedness required (other than required by Section 4.13), to be
paid as a result of such transaction to the extent secured by a Lien on such
Property that is permitted hereunder or under the applicable Security Document
and to the extent the operative agreement relating to such Indebtedness requires
or otherwise permits such a repayment; and (d) appropriate amounts to be
provided by the Company or any of the Restricted Subsidiaries, as the case may
be, as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by the Company or any of the Restricted
Subsidiaries, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any representation,
warranties or indemnification obligations associated with such Asset Sale,
provided that the aggregate amount provided by the Company or any of the
Restricted Subsidiaries, as the case may be, for the reserves contemplated by
this clause (d) in connection with any Asset Sale of Collateral shall not exceed
10% of the aggregate proceeds received in connection with such Asset Sale.
"New CDSC" means 2011448 Ontario Limited, a Wholly-Owned Restricted
Subsidiary of the Company organized under the laws of Ontario, Canada formed to
own the assets of Canadian Drawn Steel Company Inc. at such time as New CDSC
elects to exercise the purchase option for such assets provided for in the RTI
Asset Purchase Agreement.
16
"New Credit Facility" means the Credit Agreement, dated as of the Issue
Date, among the Company, Fleet Capital Corporation, as administrative agent, and
the lenders and the agents parties thereto from time to time, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith that are permitted under the Indenture, each as
the same may at any time in whole or in part be amended, amended and restated,
supplemented or otherwise modified, including any refinancing, refunding,
replacement or extension thereof and whether by the same or any other lender or
group of lenders.
"Non-Collateral Proceeds" has the meaning specified in Section 4.13.
"Note Custodian" means the Trustee, as custodian for the Depository
with respect to the Notes in global form, or any successor entity thereto.
"Notes" means the 10% Senior Secured Notes Due 2009 issued,
authenticated and delivered under this Indenture, as amended or supplemented
from time to time pursuant to the terms of this Indenture.
"Obligations" means the payment and performance in full when due,
whether at stated maturity, by acceleration or otherwise (including, without
limitation, the payment of interest and other amounts which would accrue and
become due but for the filing of a petition in bankruptcy or the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.
362(a)), of (i) all obligations of the Issuers now or hereafter existing under
or in respect of the Indenture and the Notes (including, without limitation, the
obligations of the Issuers to pay principal of and interest on the Notes when
due and payable) and all other charges, fees, expenses, commissions,
reimbursements, premiums, indemnities and all other amounts due or to become due
under or in connection with the Indenture and the Notes, (ii) all obligations of
the Guarantors now or hereafter existing under or in respect of the Indenture
and the Notes (including, without limitation, the obligations of each Guarantor
to pay principal of, premium, if any, and interest on the Notes when due and
payable) and all other charges, fees, expenses, commissions, reimbursements,
premiums, indemnities and all other amounts due or to become due under or in
connection with the Indenture and the Notes and (iii) without duplication of the
amounts described in clauses (i) and (ii), all obligations, indebtedness and
liabilities of the Issuers and the Guarantors now existing or hereafter arising
under or in respect of any Security Document or the Intercreditor Agreement,
including, without limitation, with respect to all charges, fees, expenses,
commissions, reimbursements, premiums, indemnities and other payments related to
or in respect of the obligations contained in any Security Document.
"Officer" means, with respect to an Issuer, the Chairman of the Board
of Directors, the President, the Chief Executive Officer, any Vice President,
any General Manager, the General Counsel, the Chief Financial Officer, the
Secretary, the Associate General Counsel, the Treasurer, or the Controller of
such Issuer, as the case may be.
"Officers' Certificate" means a certificate signed by one or more
Officers or by an Officer and an Assistant Treasurer or Assistant Secretary of
each of the Issuers, as the case may be; provided, however, that any Officers'
Certificate delivered pursuant to Section 4.6 of this Indenture shall be signed
by either the principal executive officer, principal financial officer or
principal accounting officer of each of the Issuers.
17
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee, which may include counsel to the Issuers.
"Parent Guarantor" means Blue Bar in its capacity as a Guarantor and
any successors.
"Pari Passu Bank Proceeds" has the meaning provided in Section 4.13.
"Pari Passu GAI Proceeds" has the meaning provided in Section 4.13.
"Participant" means, with respect to the Depository, Euroclear or
Clearstream, a Person who has an account with the Depository, Euroclear or
Clearstream, respectively (and, with respect to DTC, the Depository as of the
date hereof, shall include Euroclear and Clearstream).
"Paying Agent" has the meaning provided in Section 2.3.
"Permitted Collateral Liens" means (i) the Liens created by the Notes,
the Subsidiary Guarantees, this Indenture and the Security Documents; (ii) after
giving effect to the Sale Order, Liens on the Collateral existing on the Issue
Date to the extent and in the manner such Liens are in effect on the Issue Date,
as such Liens are more specifically described in the Security Documents
("Existing Liens"); (iii) Liens for taxes, assessments or other governmental
charges or levies not yet delinquent; (iv) carriers', warehousemen's,
mechanics', materialmen's, repairmen's, laborers', employees' or suppliers' or
other like Liens on the Collateral arising in the ordinary course of business
and securing obligations that are not due and payable; (v) Liens securing
Government Assisted Indebtedness (Ohio) on Collateral that is acquired,
refurbished, improved or relocated utilizing the proceeds of such Government
Assisted Indebtedness; provided that (x) such Liens are pari passu with, or
junior in priority to, the Lien on such Collateral in favor of the Trustee and
the Holders and (y) the holders of such Government Assisted Indebtedness (Ohio)
have agreed to subordinate their right to accelerate such Indebtedness to the
prior acceleration of the Notes; (vi) Liens securing Government Assisted
Indebtedness (New York) on Collateral that is acquired, refurbished, improved or
relocated utilizing the proceeds of such Government Assisted Indebtedness;
provided that (x) such Liens are pari passu with, or junior in priority to, the
Lien on such Collateral in favor of the Trustee and the Holders and (y) the
holders of such Government Assisted Indebtedness (New York) have agreed to
subordinate their right to accelerate such Indebtedness to the prior
acceleration of the Notes; (vii) pari passu Liens on the Pledged Securities to
secure the New Credit Facility, provided such Liens are subject to the
agreements set forth in the Intercreditor Agreement; and (viii) any other Liens
on the Collateral expressly permitted by the applicable Security Documents.
"Permitted Holders" means KPS, Xxxx and their respective Affiliates.
"Permitted Investments" means any of the following: (a) (i) Investments
in any Restricted Subsidiary (including any Person that pursuant to such
Investment becomes a Restricted Subsidiary) and (ii) Investments in any Person
that is merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or any Restricted Subsidiary at
the time such Investment is made; (b) Investments in Cash Equivalents or
Investment Grade Securities; (c) Investments in deposits with respect to leases
or utilities provided to third parties in the ordinary course of business; (d)
Investments in the Notes; (e)
18
Investments in Currency Agreements, Interest Rate Protection Obligations and
commodities hedging arrangements permitted by clause (vi) or (vii) of Section
4.9(b); (f) loans or advances to officers or employees of the Company and the
Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes of the Company and the Restricted Subsidiaries (including
travel and moving expenses) not in excess of $2.0 million in the aggregate at
any one time outstanding; (g) Investments in evidences of Indebtedness,
securities or other property received from another Person by the Company or any
of the Restricted Subsidiaries in connection with any bankruptcy proceeding or
by reason of a composition or readjustment of debt or a reorganization of such
Person or as a result of foreclosure, perfection or enforcement of any Lien in
exchange for evidences of Indebtedness, securities or other property of such
Person held by the Company or any of the Restricted Subsidiaries, or for other
liabilities or obligations of such other Person to the Company or any of the
Restricted Subsidiaries that were created in accordance with the terms of this
Indenture; (h) so long as no Default or Event of Default has occurred and is
continuing at the time such Investment is made, Investments in an amount not to
exceed the greater of (i) $20.0 million and (ii) 1.0% of Consolidated Tangible
Assets of the Company at the time of such Investment (with the Fair Market Value
of each Investment being measured at the time made and without giving effect to
subsequent changes in value); (i) any Investment constituting a Restricted
Payment received pursuant to and in compliance with Section 4.12; (j)
Investments consisting of the licensing or contribution of intellectual property
pursuant to joint marketing arrangements with other Persons; (k) Investments
consisting of purchases and acquisitions of inventory, supplies, materials and
equipment or licenses or leases of intellectual property, in any case, in the
ordinary course of business; (l) any Investment in securities or other assets
not constituting cash or Cash Equivalents and received in connection with an
Asset Sale made pursuant to the provisions of Section 4.13 or any other
disposition of assets not constituting an Asset Sale; (m) any Investment
existing on the Issue Date; and (n) any Investment, made upon the exercise of
any purchase option provided for in the RTI Asset Purchase Agreement, in all or
substantially all of the assets of Canadian Drawn Steel Company Inc.
"Permitted Liens" means, with respect to any Person and as to any
property other than the Collateral, (a) Liens to secure the New Credit Facility,
(b) Liens for taxes, assessments or other governmental charges or levies not yet
delinquent, or which are for less than $10.0 million in the aggregate, or which
are being validly contested in good faith by appropriate proceedings or for
property taxes on property that the Company or any of its Restricted
Subsidiaries has determined to abandon if the sole recourse for such tax,
assessment, charge, levy or claim is to such property; (c) carriers',
warehousemen's, mechanics', materialmen's, repairmen's, laborers', employees' or
suppliers' or other like Liens on property of the Company or any of the
Restricted Subsidiaries arising in the ordinary course of business and securing
obligations that are not due and payable or that are being contested in good
faith by negotiations or appropriate proceedings and in respect of which, if
applicable, the Company or the relevant Restricted Subsidiary shall have set
aside on its books reserves in accordance with GAAP; (d) pledges and deposits
made in the ordinary course of business by the Company or any of the Restricted
Subsidiaries in compliance with the Federal Employers Liability Act or any other
workmen's compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in respect of such obligations; (e)
deposits by the Company or any of the Restricted Subsidiaries to secure the
performance of tenders, bids, contracts (other than for Indebtedness), leases
(other than
19
Capitalized Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business, including those incurred to secure health, safety
and environmental obligations in the ordinary course of business; (f) zoning
restrictions, easements, trackage rights, leases (other than Capitalized Lease
Obligations), licenses, special assessments, rights-of-way, restrictions on use
of Real Property and other similar encumbrances incurred by the Company or any
of the Restricted Subsidiaries in the ordinary course of business which,
individually and in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company or any of the
Restricted Subsidiaries; (g) Liens consisting of interests of lessors under
capital or operating leases; (h) Liens securing judgments, decrees or orders
against the Company or any of the Restricted Subsidiaries, so long as such Lien
is being contested in good faith and is adequately bonded, any appropriate legal
proceedings which may have been duly initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired; (i) any leases
or subleases to other Persons of properties or assets owned or leased by the
Company or any of the Restricted Subsidiaries; (j) any Lien arising by operation
of law pursuant to Section 107(1) of CERCLA, 42 U.S.C. Section 9607(1), or
pursuant to analogous state law, for costs or damages which are not yet due (by
virtue of a written demand for payment by a government authority) or which are
being contested in good faith by appropriate proceedings, or on property that
the Company or any of the Restricted Subsidiaries has determined to abandon if
the sole recourse for such costs or damages is to such property; provided that
the liability of the Company and the Restricted Subsidiaries with respect to the
matter giving rise to all such Liens shall not, in the reasonable estimate of
the Company (in the light of all attendant circumstances, including the
likelihood of contribution by third parties), exceed $25.0 million; (k) Liens
that are contractual rights of setoff (1) relating to the establishment by the
Company or any of its Subsidiaries of depository relations with banks not given
in connection with the issuance of Indebtedness or (2) pertaining to pooled
deposit and/or sweep accounts of the Company and/or any of the Restricted
Subsidiaries to permit satisfaction of overdraft or similar obligations incurred
in the ordinary course of business of the Company and the Restricted
Subsidiaries; (l) Liens securing obligations in respect of trade-related letters
of credit and covering the goods (or the documents of title in respect of such
goods) financed by such letters of credit; (m) the sale of accounts receivable
in connection with collection in the ordinary course of business; (n)
construction Liens arising in the ordinary course of business, including Liens
for work performed for which payment has not been made, securing obligations
that are not due and payable or are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, the Company or the relevant
Restricted Subsidiary shall have set aside on its books reserves in accordance
with GAAP; (o) Liens securing Currency Agreements, Interest Rate Protection
Obligations and commodity hedging agreements; (p) any other Liens encumbering
deposits made to secure obligations arising from statutory, regulatory,
contractual or warranty requirements, including rights of offset and set off;
(q) purchase money Liens to finance the acquisition of property or assets of the
Company or any Restricted Subsidiary of the Company acquired in the ordinary
course of business; provided that (1) the related purchase money Indebtedness
shall not be secured by or extend to any Collateral or any other property or
assets of the Company or any Restricted Subsidiary other than the property or
assets so acquired, (2) the amount of Indebtedness secured by any such Lien
shall not exceed the purchase price of the property or assets acquired and (3)
Lien securing such Indebtedness either
20
(x) exists at the time of such acquisition or construction or (y) shall be
created within 180 days of such acquisition; (r) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods; (s) Liens securing
Indebtedness which is incurred to refinance Indebtedness which has been secured
by a Lien or Liens permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided that such Liens do
not extend to or cover any property or assets of the Company or any of the
Restricted Subsidiaries not securing the Indebtedness so refinanced; (t) Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person's obligations in respect of bankers' acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods; (u) Liens securing reimbursement
obligations with respect to commercial letters of credit which encumber
documents and other property relating to such letters of credit and products and
proceeds thereof; (v) Liens securing Acquired Indebtedness permitted by Section
4.9; provided that (1) such Liens secured such Acquired Indebtedness at the time
of and prior to the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary thereof and were not granted in connection with, or in
anticipation of, the incurrence of such Acquired Indebtedness by the Company or
a Restricted Subsidiary thereof and (2) such Liens do not extend to or cover any
property or assets of the Company or any of the Restricted Subsidiaries other
than the property or assets that secured the Acquired Indebtedness prior to the
time such Indebtedness became Acquired Indebtedness of the Company or such
Restricted Subsidiary and are no more favorable to the lienholders than those
securing the Acquired Indebtedness prior to the incurrence of such Acquired
Indebtedness by the Company or such Restricted Subsidiary; and (w) Liens on
assets acquired or constructed after the Issue Date and not constituting
Collateral securing Indebtedness not to exceed 70% of the lower of the cost of
construction or acquisition of such assets or the fair market value of such
assets, in each case determined at the time of incurrence of such Indebtedness.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, charitable
foundation, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Pledge Agreement" means the pledge agreement, substantially in the
form of Exhibit E hereto, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof and thereof.
"Pledged Securities" has the meaning provided in the Pledge Agreement.
"Pledgor" means each of the Company, Blue Steel Capital Corp., Blue Bar
and each Restricted Subsidiary that becomes a "Pledgor" under any Security
Document.
"Principal" of a debt security means the principal amount of the
security.
"Prior Lien" has the meaning assigned to such term in the applicable
Security Document.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference
21
stock, whether now outstanding or issued after the date of this Indenture, and
including, without limitation, all classes and series of preferred or preference
stock of such Person.
"Property" means any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including ownership interests of any Person.
"Real Estate Fixtures" means only such "equipment" as defined in the
UCC which is (i) affixed to any Real Property, (ii) considered a fixture or a
part of the Real Property under applicable law and (iii) integral to the
occupancy or customarily used by occupants in connection with the occupancy of
the land or in the operation of the buildings, structures and improvements
thereon as such, as opposed to manufacturing or other business operations
conducted therein or therefrom and, in any event, shall include, without
limitation, all switchboards, utility systems, sprinkler and alarm systems or
other fire prevention or extinguishing apparatus and materials, HVAC equipment,
boilers, oil boilers, telecommunications equipment, refrigeration, electronic
monitoring, water or lighting systems, power, sanitation, waste removal,
pollution abatement or control, elevators, window cleaning, maintenance or other
systems or equipment, appliances or supplies, all heating apparatus, generators,
plumbing, lighting and gas fixtures, laundry, ventilating and air conditioning
equipment, all awnings, blinds, screens, storm sashes, pumping equipment,
electrical equipment, including transformers, radiators and piping, coal
stokers, plumbing and bathroom fixtures, washtubs, sinks, stoves, ranges, window
shades, motors, generators, dynamos, kitchen cabinets, incinerators, plants and
shrubbery and all other articles used or useful in connection with the use,
operation, maintenance or repair of any part of the Real Property, together with
any and all modifications, renewals, improvements, alterations, repairs,
substitutions, attachments, additions, accessions and other property now or
hereafter affixed thereto or used in connection therewith, all replacements and
all parts therefore, and together with all substitutes for any of the foregoing.
"Real Property" means any interest in any real property or any portion
thereof whether owned in fee or leased or otherwise owned.
"Redemption Date" means, with respect to any Note, the Maturity Date of
such Note or the date on which such Note is to be redeemed pursuant to the terms
of the Notes or this Indenture.
"Refinancing Indebtedness" means (a) Indebtedness of the Company or a
Subsidiary Guarantor to the extent the proceeds thereof are used solely to
refinance (whether by amendment, renewal, extension or refunding) all or any
part of any Indebtedness of the Company or any of the Restricted Subsidiaries
and (b) Indebtedness of any Restricted Subsidiary (other than a Subsidiary
Guarantor) to the extent the proceeds thereof are used solely to refinance
(whether by amendment, renewal, extension or refunding) all or any part of any
Indebtedness of a Restricted Subsidiary (other than a Subsidiary Guarantor), in
each such event; provided that (i) the principal amount of Indebtedness incurred
pursuant to this definition (or, if such Indebtedness provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, the accreted value of such
Indebtedness) shall not exceed the sum of the principal amount of Indebtedness
so refinanced (less any discount from principal amount due upon payment pursuant
to the terms of such
22
Indebtedness) was not incurred in violation of this Indenture, (ii) in the case
of Indebtedness incurred pursuant to this definition by the Company or any
Subsidiary Guarantor, such Indebtedness (x) has no scheduled principal payment
prior to the earlier of (A) the final maturity of the corresponding portion of
the Indebtedness being refinanced or (B) the 91st day after the final maturity
date of the Notes and (y) has an Average Life to Stated Maturity greater than
either (A) the Average Life to Stated Maturity of the Indebtedness refinanced or
(B) the remaining Average Life to Stated Maturity of the Notes and (iii) if the
Indebtedness to be refinanced is Subordinated Indebtedness, the Indebtedness to
be incurred pursuant to this definition shall also be Subordinated Indebtedness.
"Registrar" has the meaning provided in Section 2.3.
"Registration Obligations" has the meaning provided in Section 4.7(b).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Issuers, the Guarantors
and the Liquidation Trust, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Release Notice" has the meaning provided in Section 11.4.
"Released Mortgaged Property" shall mean any vacant and unimproved
portion of any Mortgaged Property which the Company or any other applicable
Pledgor, subject to Section 11.3(b), elects to develop free and clear of the
Lien of the Security Documents, provided that the aggregate value of such
Mortgaged Property which is elected to be so developed during the period the
Notes are outstanding does not exceed $500,000 and the use and operation of the
improvement on any such vacant and unimproved portion of any Mortgaged Property
is unrelated to and does not adversely affect the Collateral; and provided,
further, that the Majority Noteholders shall have consented to such development
of such Mortgaged Property.
"Responsible Officer" means, with respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee, including any Vice President,
Assistant Vice President, Assistant Secretary or any officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Restricted Payment" has the meaning provided in Section 4.12.
"Restricted Subsidiary" means each Subsidiary of the Company.
"Roll-up Transaction" means any merger or consolidation of the Company
with, or any transfer of all of the assets of, or Capital Stock of, the Company
to, any newly organized Affiliate thereof (having no material liabilities other
than Investments in or liabilities with respect to the Company or the Restricted
Subsidiaries) if such transaction and any series of related transactions are for
the sole purpose of creating or having a corporation that will own all of the
assets that the Company owned immediately prior to such transaction.
23
"RTI" has the meaning provided in the recitals.
"RTI Asset Purchase Agreement" has the meaning provided in the
recitals.
"RTI Indenture" has the meaning provided in the recitals.
"RTI Majority Noteholders" has the meaning provided in the recitals.
"RTI Notes" has the meaning provided in the recitals.
"RTI Notes Trustee" has the meaning provided in the recitals.
"Sale Order" has the meaning provided in the recitals.
"Sale-Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person after the acquisition
thereof or the completion of construction or commencement of operation thereof
to such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such property or asset.
The stated maturity of such arrangement shall be the date of the last payment of
rent or any other amount due under such arrangement prior to the first date on
which such arrangement may be terminated by the lessee without payment of a
penalty.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the security agreement substantially in the
form of Exhibit D hereto (including such changes to such form as may be
necessary or desirable to conform to applicable local laws), as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof and thereof.
"Security Documents" means, collectively, (i) the Security Agreement,
(ii) the Pledge Agreement, (iii) the Mortgages made by or to be made by the
Company in favor of the Collateral Agent, and (iv) all security agreements,
mortgages, deeds of trust, pledges, collateral assignments and other agreements
or instruments evidencing or creating any security in favor of the Collateral
Agent in any or all of the Collateral, in each case as amended, amended or
restated, supplemented or otherwise modified from time to time in accordance
with their terms.
"Security Interests" means the Liens on the Collateral created by the
Security Documents in favor of the Collateral Agent for its benefit and the
benefit of the Trustee and the holders of Notes or in favor of the Trustee for
its benefit and the benefit of the holders of the Notes.
"Specified Facility" means each of the following: (i) the Massillon
Cold Finish Bar Plant in Massillon, Ohio; (ii) the Xxxx Cold Finished Bar Plant
in Gary, Indiana; (iii) the Lackawanna Hot Rolled Bar Plant in Blasdell, New
York; (iv) any of the following facilities at the Canton Plant in Canton, Ohio:
the Melt Shop, the Cast Roll, or the Bar Billet Conditioning facility; and
24
(v) any of the following facilities at the Lorain Plant in Lorain, Ohio: the
Blast Furnace, the BOP Shop, the Billet Caster, the Bloom Caster, the Primary
Mill (includes the four stand), or the "9/10" Mill.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Stipulation" has the meaning provided in the recitals.
"Subordinated Indebtedness" means Indebtedness of an Issuer or a
Subsidiary Guarantor which is expressly subordinated in right of payment to the
Notes or the Guarantee of such Guarantor, as the case may be.
"Subsidiary" means, with respect to any Person, (a) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (b) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, have at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons performing
similar functions). For purposes of this definition, any directors' qualifying
shares or investments by foreign nationals mandated by applicable law shall be
disregarded in determining the ownership of a Subsidiary.
"Subsidiary Guarantee" means the subsidiary guarantee of the Subsidiary
Guarantors set forth in Article X and any additional subsidiary guarantee of the
Notes executed by any Person.
"Subsidiary Guarantor" means (a) each Subsidiary of the Company that
owns or holds any Collateral and (b) any other Subsidiary of the Company that
guarantees the Notes, but shall not include Blue Steel Capital Corp.
"Substitute Collateral" has the meaning provided in Section 11.5.
"Survey" means a survey of any parcel of real property (and all
improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state or province in which such property is located, (ii)
dated (or redated) not earlier than six months prior to the date of delivery
thereof (unless there shall have occurred within six months prior to such date
of delivery any exterior construction on the site of such property, in which
event such survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of such
date of delivery, not earlier than 20 days prior to such date of delivery),
(iii) certified by the surveyor in a manner reasonably acceptable to the title
company providing title insurance in respect of the Liens granted under the
Mortgages (provided, however, that such certification shall not be required with
respect to any survey of any parcel of real property located in Canada) and (iv)
complying in all respects with the minimum detail
25
requirements of the American Land Title Association, or local or foreign
equivalent, as such requirements are in effect on the date of preparation of
such survey, or that is otherwise reasonably acceptable to the Trustee (giving
consideration to the applicable transaction).
"Surviving Entity" has the meaning provided in Section 5.1.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Transactions" means the transactions contemplated by the RTI Asset
Purchase Agreement.
"Trust Moneys" means all cash or Cash Equivalents received by the
Trustee or the Collateral Agent, as the case may be: (a) upon the release of
property from the Lien of any of the Security Documents, including all moneys
received in respect of the principal of all purchase money, governmental and
other obligations; (b) as compensation for, or proceeds of the sale of all or
any part of the Collateral taken by eminent domain or purchased by, or sold
pursuant to any order of, a governmental authority or otherwise disposed of; (c)
as proceeds of insurance upon any, all or part of the Collateral (other than any
liability insurance proceeds payable to the Trustee or the Collateral Agent, as
the case may be, for any loss, liability or expense incurred by it); (d)
pursuant to certain provisions of the Mortgages; (e) as proceeds of any other
sale or other disposition of all or any part of the Collateral by or on behalf
of the Trustee or the Collateral Agent, as the case may be, or any collection,
recovery, receipt, appropriation or other realization of or from all or any part
of the Collateral pursuant to the Security Documents or otherwise; or (f) for
application under this Indenture as provided in the Indenture, any Security
Document, or the Intercreditor Agreement or whose disposition is not otherwise
specifically provided for in this Indenture, any Security Document, or the
Intercreditor Agreement; provided, however, that "Trust Moneys" shall not
include any property deposited with the Trustee pursuant to Article III or VIII
or delivered to or received by the Trustee pursuant to Section 6.10.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor, and shall in addition include any Person
designated or constituted as a co-trustee or separate trustee pursuant to
Section 7.12 for the limited purposes of such designation or constitution.
"UCC" means Article 9 of the Uniform Commercial Code as in effect in
any applicable jurisdiction.
"U.S. Government Obligations" has the meaning provided in Section 8.1.
"Voting Stock" means any class or classes of Capital Stock of a Person
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to vote in the election of the Board of Directors,
managers or trustees of such Person (irrespective of whether or not, at the
time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency).
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary of
which 100% of the outstanding Capital Stock is owned by the Company or one or
more Wholly-Owned
26
Restricted Subsidiaries of the Company. For purposes of this definition, any
directors' qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
shall be deemed incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
(a) "Commission" means the SEC;
(b) "indenture securities" means the Notes;
(c) "indenture security holder" means a Holder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the Trustee;
and
(f) "obligor on the indenture securities" means the Issuers.
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 and not
otherwise defined herein have the meanings so assigned to them therein.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the plural
include the singular;
(d) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
Subdivision;
(e) unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statements of the
Company; and
(f) "including" means including, without limitation, unless the context
otherwise requires.
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ARTICLE II
THE NOTES
SECTION 2.1 Form and Dating.
---------------
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1.00 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Issuers, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Transfer or Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and shall provide that it shall represent
the aggregate amount of outstanding Notes from time to time endorsed on Schedule
A thereto and that the aggregate amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges, redemptions and transfers of interests. Any endorsement of Schedule A
of a Global Note to reflect the amount of any increase or decrease in the amount
of outstanding Notes represented thereby shall be made by the Trustee or the
Note Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.6 hereof. The Global Notes,
duly executed by the Issuers and authenticated by the Trustee as hereinafter
provided, shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its Chicago, Illinois office, as Note
Custodian, and registered in the name of the Depository or the nominee of the
Depository.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to
Global Notes deposited with or on behalf of the Depository.
The Issuers shall execute and the Trustee shall, in accordance with
this Section 2.1(c), authenticate and deliver the Global Notes that (i) shall be
registered in the name of the Depository or the nominee of the Depository and
(ii) shall be delivered by the Trustee to the Depository or pursuant to the
Depository's instructions or held by the Note Custodian.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depository or by the Note
Custodian as custodian for the Depository or under such Global Note, and the
Depository may be treated by each of the Issuers, the Trustee and any agent of
either of the Issuers or of the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall
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prevent each of the Issuers, the Trustee or any agent of either of the Issuers
or of the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Participants, the operation of customary practices of such
Depository governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
(d) Certificated Notes. Notes issued in certificated form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto) ("Certificated Notes") and shall be printed,
typewritten, lithographed or engraved or produced by any combination of these
methods or may be produced by any other method permitted by the rules of any
securities exchange on which the Notes may be listed, as evidenced by the
execution of such Notes.
(e) Provisions Applicable to Forms of Notes. The Notes may also have
such additional provisions, omissions, variations or substitutions as are not
inconsistent with the provisions of this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with this Indenture, any applicable law or
with any rules made pursuant thereto or with the rules of any securities
exchange or governmental agency or as may be determined consistently herewith by
the Officers of the Company executing such Notes, as conclusively evidenced by
their execution of such Notes. All Notes will be otherwise substantially
identical except as provided herein.
Subject to the provisions of this Article II, a Holder of a Global Note
may grant proxies and otherwise authorize any Person to take any action that a
Holder is entitled to take under this Indenture or the Notes.
SECTION 2.2 Execution and Authentication.
One Officer shall execute the Notes for each of the Issuers by either
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note or at any time thereafter, the
Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. Such signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall, upon a written order of the Issuers signed by an
Officer (an "Authentication Order"), authenticate Notes for original issue up to
the aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding under this Indenture may not exceed
$80,000,000 except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuers.
29
SECTION 2.3 Registrar and Paying Agent.
The Issuers shall maintain an office or agency (which shall be located
in the Borough of Manhattan in The City of New York, State of New York or The
City of Chicago, State of Illinois) where Notes may be presented for
registration of transfer or for exchange (the "Registrar"), an office or agency
(which shall be located in The Borough of Manhattan, The City of New York, State
of New York or The City of Chicago, State of Illinois) where Notes may be
presented for payment (the "Paying Agent") and an office or agency where notices
and demands to or upon the Issuers in respect of the Notes and this Indenture
may be served. The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Issuers may have one or more co-Registrars and one or
more additional paying agents. Neither of the Issuers nor any of their
respective Subsidiaries or Affiliates may act as Paying Agent.
The Issuers shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions 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. If the Issuers fail to maintain a Registrar or Paying
Agent, or fails to give the foregoing notice, the Trustee shall act as such and
shall be entitled to appropriate compensation in accordance with Section 7.7.
The Issuers initially appoint DTC to act as Depository with respect to
the Global Notes. The Issuers initially appoint the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Notes
to serve until such time as the Trustee has resigned or a successor is appointed
in accordance with this Indenture. No Person other than the Trustee shall serve
as Paying Agent without the prior approval of the Majority Noteholders.
SECTION 2.4 Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
or interest on the Notes (whether such money has been paid to it by the Issuers
or any other obligor on the Notes), and the Issuers and the Paying Agent shall
notify the Trustee of any default by the Issuers (or any other obligor on the
Notes) in making any such payment. Money held in trust by the Paying Agent need
not be segregated except as required by law and in no event shall the Paying
Agent be liable for interest on any money received by it hereunder. The Issuers
at any time may require the Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed and the Trustee may at any time
during the continuance of any Event of Default specified in Sections 6.1(a) and
(b), upon written request to the Paying Agent, require such Paying Agent to pay
forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment and accounting to the satisfaction of the
Trustee, the Paying Agent (if other than the Issuers or a Guarantor) shall have
no further liability for the money delivered to the Trustee. If the Issuers or a
Guarantor acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization of the Issuers, the Trustee shall serve as
Paying Agent for the Notes.
30
The Issuers and the Guarantors acknowledge that all money (other than
Trust Moneys) paid to the Paying Agent for the payment of principal of or
interest on the Notes (whether such money has been paid to it by the Issuers or
any other obligor on the Notes), shall no longer be property of the Issuers and
the Guarantors.
SECTION 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuers shall otherwise comply with TIA (S) 312(a).
SECTION 2.6 Transfer and Exchange.
(a) Transfer and Exchange of Global Note. The Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or to another nominee of the
Depository, or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository. The Global Note will be exchanged by
the Issuers for Certificated Notes if (i) the Issuers deliver to the Trustee
notice from the Depository that it is unwilling or unable to continue to act as
Depository or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depository is not appointed by the
Issuers within 120 days after the date of such notice from the Depository, (ii)
the Issuers in their sole discretion determine that the Global Note (in whole
but not in part) should be exchanged for Certificated Notes and deliver a
written notice to such effect to the Trustee or (iii) an Event of Default has
occurred and is continuing with respect to the Notes and the Registrar has
received a request from the Depository to issue Certificated Notes in lieu of
all or a portion of the Global Note (in which case the Issuers shall deliver
Certificated Notes within 30 days of such request). Upon the occurrence of any
of the preceding events in (i), (ii) or (iii) above, Certificated Notes shall be
issued in such names as the Depository shall instruct the Trustee. The Global
Note also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.7 and 2.10 hereof. Every Note authenticated and delivered in exchange
for, or in lieu of, the Global Note or any portion thereof, pursuant to this
Section 2.6 or Section 2.7 or 2.10 hereof, shall be authenticated and delivered
in the form of, and shall be, the Global Note. The Global Note may not be
exchanged for another Note other than as provided in this Section 2.6(a),
however, beneficial interests in the Global Note may be transferred and
exchanged as provided in Section 2.6(b) or (c) hereof.
Neither the Issuers nor the Trustee will be liable for any delay by the
Depository or its nominee in identifying the beneficial owners of the Notes, and
each such Person may conclusively rely on, and will be protected in relying on,
instructions from such Depository or nominee for all purposes (including with
respect to the registration and delivery, and the respective principal amounts,
of the Notes to be issued).
31
(b) Transfer and Exchange of Beneficial Interests in the Global Note.
The transfer and exchange of beneficial interests in the Global Note shall be
effected through the Depository, in accordance with the provisions of this
Indenture and the Applicable Procedures. Transfers of beneficial interests in
the Global Note also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Beneficial interests in the Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.6(b)(i).
(ii) In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.6(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar (1) a written order from a Participant or an Indirect
Participant given to the Depository in accordance with the Applicable
Procedures directing the Depository to cause to be issued a
Certificated Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depository
to the Registrar containing information regarding the Person in whose
name such Certificated Note shall be registered to effect the transfer
or exchange referred to in (1) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in the
Global Note contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the Global Note pursuant to Section 2.6(g) hereof.
(c) Transfer or Exchange of Beneficial Interests for Certificated
Notes. If any holder of a beneficial interest in the Global Note proposes to
exchange such beneficial interest for a Certificated Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Certificated Note, then, upon satisfaction of the conditions set forth in
Section 2.6(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the Global Note to be reduced accordingly pursuant to Section 2.6(g)
hereof, and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Certificated Note in the
appropriate principal amount. Any Certificated Note issued in exchange for a
beneficial interest pursuant to this Section 2.6(c) (i) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depository and the Participant or Indirect Participant and
(ii) shall be issued without the legend referred to in Section 6(f)(ii) if
registration under the Securities Act of the distribution of the Notes from the
Liquidation Trust to the beneficiaries of the Liquidation Trust has occurred The
Trustee shall deliver such Certificated Notes to the Persons in whose names such
Notes are so registered.
(d) Transfer and Exchange of Certificated Notes for Beneficial
Interests in the Global Note. A Holder of a Certificated Note may exchange such
Note for a beneficial interest in the Global Note or transfer such Certificated
Note to a Person who takes delivery thereof in the form of a beneficial interest
in the Global Note at any time. Upon receipt of a request for such an exchange
or transfer, the Trustee shall cancel the applicable Certificated Note and
increase or cause to be increased the aggregate principal amount of the Global
Note.
32
(e) Transfer and Exchange of Certificated Notes for Certificated Notes.
Upon request by a Holder of Certificated Notes and such Holder's compliance with
the provisions of this Section 2.6(e), the Registrar shall register the transfer
or exchange of Certificated Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Certificated Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. Upon receipt of a request to
register such a transfer or exchange, the Registrar shall register the
Certificated Notes pursuant to the instructions from the Holder thereof. All
Certificated Notes issued in connection with a transfer or exchange pursuant to
this Section 2.6(e) shall be issued without the legend referred to in Section
6(f)(ii) if registration under the Securities Act of the distribution of the
Notes from the Liquidation Trust to the beneficiaries of the Liquidation Trust
has occurred.
(f) Legends. The following legends shall appear on the face of the
Global Note and Certificated Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Global Note Legend. The Global Note shall bear a legend
(the "Global Note Legend") in substantially the following form:
"THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN"
(ii) Transfer Restriction Legend. The Certificated Note to
be issued under this Indenture to the Liquidating Trust shall bear a
legend in substantially the following form:
33
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY OTHER
STATE OR JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION."
This legend shall be removed upon registration under the Securities Act
of the distribution of the Notes from the Liquidation Trust to the
beneficiaries of the Liquidation Trust.
(g) Cancellation and/or Adjustment of the Global Note. At such time as
all beneficial interests in the Global Note have been exchanged for Certificated
Notes or the Global Note has been redeemed, repurchased or canceled in whole and
not in part, the Global Note shall be returned to or retained and canceled by
the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in the Global Note is exchanged for or
transferred to a Person who will take delivery thereof in Certificated Notes,
the principal amount of Notes represented by the Global Note shall be reduced
accordingly and an endorsement shall be made on the Global Note by the Trustee
or by the Depository at the direction of the Trustee to reflect such reduction.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate the Global
Note and Certificated Notes upon the Issuers' order.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Certificated
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.8, 4.15 and 9.5
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) The Global Note and Certificated Notes issued upon any
registration of transfer or exchange of another Global Note or
Certificated Notes shall be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Note or Certificated Notes surrendered upon
such registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days
34
before the day of any selection of Notes for redemption under Section
3.3 hereof and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Issuers shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate the Global Note and
Certificated Notes in accordance with the provisions of Section 2.2
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.6 to effect a registration of transfer or exchange may be
submitted by facsimile.
(ix) The Trustee and the Issuers shall take all actions
required of them pursuant to this Section 2.6 (including the execution
and authentication of Notes) as soon as reasonably practicable after
satisfaction of the relevant conditions to the taking of such action.
SECTION 2.7 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee or
if the Holder of a Note claims that the Note has been lost, destroyed
or wrongfully taken, the Issuers shall issue and the Trustee, upon
receipt of an Authentication Order, shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee
or the Issuers, an indemnity bond shall be posted, sufficient in the
judgment of both to protect the Issuers, the Trustee or any Paying
Agent from any loss that any of them may suffer if such Note is
replaced. The Issuers may charge such Holder for the Issuers' expenses
in replacing such Note and the Trustee may charge the Issuers for the
Trustee's expenses in replacing such Note. Every replacement Note shall
constitute an additional obligation of the Issuers.
SECTION 2.8 Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Section 8.1, on
or after the date on which the conditions set forth in Section 8.1 have been
satisfied, those Notes theretofore authenticated and delivered by the Trustee
hereunder and (d) those described in this Section 2.8 as not outstanding. A Note
does not cease to be outstanding because the Issuers or an Affiliate of the
Issuers holds the Notes.
If a Note is replaced pursuant to Section 2.7 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser in whose hands such Note is a legal, valid and
35
binding obligation of Issuers. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to Section 2.7.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date or on any optional redemption date, money sufficient to pay all accrued
interest and principal with respect to such Notes (or portions thereof) payable
on that date and is not prohibited from paying such money to the Holders thereof
pursuant to the terms of this Indenture, then on and after that date such Notes
(or portions thereof) cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any declaration of acceleration or notice of default or
direction, waiver or consent or any amendment, modification or other change to
this Indenture or any determination of Majority Noteholders, Notes owned by an
Issuer Affiliate (as defined below) shall be disregarded as though they were not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent or any
amendment, modification or other change to this Indenture, the Security
Documents or the Intercreditor Agreement, only Notes that a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded. For purposes
of the foregoing, "Issuer Affiliate" means any Issuer, Xxxx, KPS, or any of
their respective Affiliates or anyone acting on their behalf, provided that (i)
no limited partner of any limited partnership controlled by either KPS or Xxxx
or anyone acting on their behalf shall be an Issuer Affiliate merely because of
its status as a limited partner in such limited partnership and (ii) no member
of any limited liability company controlled by either KPS or Xxxx or anyone
acting on their behalf shall be an Issuer Affiliate merely because of its status
as a member of such limited liability company.
SECTION 2.10 Temporary Notes.
Until Certificated Notes are prepared and ready for delivery, the
Issuers may prepare and the Trustee shall authenticate temporary Notes upon
receipt of an Authentication Order. The Authentication Order shall specify the
amount of temporary Notes to be authenticated and the date on which the
temporary Notes are to be authenticated. Temporary Notes shall be substantially
in the form of Certificated Notes but may have variations that the Issuers
consider appropriate for temporary Notes. Without unreasonable delay, the
Issuers shall prepare and the Trustee shall authenticate Certificated Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as Certificated Notes.
SECTION 2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the
record-retention requirements of the Exchange Act) dispose of cancelled Notes
unless the Issuers direct the Trustee to return such Notes to the Issuers, and,
if so disposed of, shall deliver a certificate as
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to the disposal thereof to the Issuers. The Issuers may not reissue or resell,
or issue new Notes to replace, Notes that the Issuers or the Guarantors have
redeemed pursuant to Article III or paid at maturity, or that have been
delivered to the Trustee for cancellation, subject to Section 2.6(g).
SECTION 2.12 Defaulted Interest.
If the Issuers default on a payment of interest on the Notes, they
shall pay the defaulted interest (including post-petition interest in any
proceeding under any Bankruptcy Law), plus (to the extent permitted by law) any
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) payable on the defaulted interest, in accordance with the terms
hereof, to the Persons who are Holders on a subsequent special record date,
which date shall be at least five Business Days prior to the payment date. The
Issuers shall fix such special record date and payment date in a manner
satisfactory to the Trustee. At least 15 days before such special record date,
the Issuers shall mail to the Trustee and each Holder a notice that states the
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
The Issuers agree that interest on the Notes plus (in each case, to the
extent permitted by law) (i) interest on unpaid interest and (ii) interest and
interest on unpaid interest at the Default Rate, shall accrue during any
proceeding under any Bankruptcy Law.
SECTION 2.13 CUSIP Number.
The Issuers in issuing the Notes may use a "CUSIP" number, and if so,
such CUSIP number shall be included 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 or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Issuers will promptly
notify the Trustee of any change in the CUSIP number.
SECTION 2.14 Deposit of Moneys.
On each Interest Payment Date and Maturity Date, the Issuers shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be.
SECTION 2.15 Record Date.
The record date for purposes of determining the identity of Holders of
the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.16 Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360 day year
comprised of twelve 30-day months.
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ARTICLE III
REDEMPTION
SECTION 3.1 Optional Redemption.
The Issuers may at any time redeem the Notes, in whole but not in part,
at a redemption price equal to 100% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, to but excluding the date of
redemption.
SECTION 3.2 Mandatory Redemption.
On the 35/th/ day prior to each payment date for the payment of
interest, the Collateral Agent shall notify the Trustee and the Issuers as to
the amount of cash and Cash Equivalents then held by the Collateral Agent
constituting Net Cash Proceeds of Asset Sales and other dispositions of
Collateral. On or before each payment date for the payment of interest, the
Collateral Agent shall pay to the Trustee in cash the amount so notified to the
Trustee pursuant to the prior sentence, and upon receipt by the Trustee of such
funds, the Trustee shall apply such funds to redeem the Notes on such interest
payment date in the manner set forth in this Article III.
SECTION 3.3 Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being
redeemed are listed or, if the Notes are not listed on a national securities
exchange, on a pro rata basis, provided that no Notes of a principal amount of
$1.00 or less shall be redeemed in part. The Trustee shall make the selection
from the Notes outstanding and not previously called for redemption. The Trustee
shall promptly notify the Issuers in writing of such Notes selected for
redemption and, in the case of Notes selected for partial redemption, the
principal amount to be redeemed. The Trustee may select for redemption portions
of the principal amount of Notes that have denominations larger than $1.00.
Notes and portions thereof the Trustee selects shall be in amounts of $1.00 or
integral multiples of $1.00. No Notes that have denominations of $1.00 or less
shall be selected by the Trustee for partial redemption. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.4 Notices to Trustee.
If the Issuers elect or are required to redeem Notes pursuant to the
terms of the Notes and this Indenture, they shall do so by notifying the Trustee
and the Paying Agent in writing of the Redemption Date and the principal amount
of Notes to be redeemed as soon as reasonably practicable but in no event later
than 3 Business Days prior to the last day on which notice can be given under
Section 3.5.
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Each notice provided for in this Section 3.4 shall be accompanied by an
Officers' Certificate stating that such redemption will comply with the
conditions contained herein and in the Notes.
SECTION 3.5 Notice of Redemption.
At least 30 days before a Redemption Date, the Issuers shall mail or
cause the mailing of a notice of redemption by first-class mail to each Holder
of Notes to be redeemed and the Trustee and any Paying Agent.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the redemption price and the amount of accrued and unpaid interest,
if any, to be paid;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price and accrued and unpaid interest, if any;
(e) that, unless the Issuers default in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders of such Notes is to
receive payment of the redemption price upon surrender to the Paying Agent of
the Notes redeemed;
(f) if any Note is to be redeemed in part only pursuant to Section 3.2,
the portion of the principal amount (equal to $1.00 or any integral multiple
thereof) of such Note to be redeemed on or after the Redemption Date;
(g) if there is to be a partial redemption of Certificated Notes
pursuant to Section 3.2, upon surrender of such Note, a new Note or Notes in
aggregate principal amount equal to the unredeemed portion thereof will be
issued without charge to the Holder upon cancellation of the original Notes;
(h) if less than all of the Notes are to be redeemed pursuant to
Section 3.2, the identification of the particular Notes (or portion thereof) to
be redeemed, as well as the aggregate principal amount of Notes to be redeemed
and the aggregate principal amount of Notes estimated to be outstanding after
such partial redemption; and
(i) the CUSIP number(s), if any, pursuant to Section 2.13 and, at the
option of the Issuers or the Trustee, the disclaimer permitted by Section 2.13.
At the Issuers' written request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense.
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SECTION 3.6 Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become
due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price
plus accrued interest, if any, to the Redemption Date, but interest installments
whose maturity is on or prior to such Redemption Date will be payable on the
relevant Interest Payment Dates to the Holders of record at the close of
business on the relevant record dates referred to in the Notes. 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 3.7 Deposit of Redemption Price.
In the case of a redemption pursuant to Section 3.1, on or before the
Redemption Date, the Issuers shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Paying Agent shall return
to the Issuers any of such money not required for such purpose. All money earned
on funds held in trust by the Paying Agent for payment pursuant to this Article
III shall be remitted to the Issuers.
In the case of a redemption pursuant to Section 3.2, on or before the
Redemption Date, (i) the Trustee shall, to the extent it receives money from the
Collateral Agent pursuant to such Section 3.2, deposit with the Paying Agent in
immediately available funds an amount sufficient to pay the redemption price of
all Notes or portions thereof to be redeemed on that date and (ii) the Issuers
shall deposit with the Paying Agent in immediately available funds money
sufficient to pay the accrued interest on all Notes or portions thereof to be
redeemed on that date. The Paying Agent shall return to the Collateral Agent any
of such money not required for such purpose. All money earned on funds held in
trust by the Paying Agent for payment pursuant to this Article III shall be
remitted to the Collateral Agent and held as Trust Moneys for later redemption
of the Notes pursuant to Section 3.2.
If any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid on the Redemption Date due to the failure of the
Issuers or the Trustee to deposit sufficient funds with the Paying Agent,
interest will continue to accrue from the Redemption Date until such payment is
made on the unpaid principal and, to the extent lawful, on any interest not paid
on such unpaid principal, in each case at the date and in the manner provided in
the Notes.
SECTION 3.8 Notes Redeemed in Part.
Upon surrender to the Paying Agent of a Note that is redeemed in part
pursuant to Section 3.2, the Issuers shall execute and the Trustee shall
authenticate for the Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes.
The Issuers shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes and this Indenture.
Principal and interest shall be considered paid on the date due if the
Trustee or the Paying Agent holds as of 12:00 Noon Eastern time on such date
immediately available funds designated for and sufficient to pay all principal
and interest then due.
The Issuers shall pay interest on overdue principal and (to the extent
permitted by law) on overdue installments of interest at the rate specified
therefore in the Notes.
All amounts representing Canadian Drawn Steel Proceeds shall be deemed
to reduce, pro rata, the principal amount payable by the Issuers and the
Restricted Subsidiaries under each Note, provided that such reduction shall
occur only to the extent such proceeds constitute cash and are actually received
either by the holders of the RTI Notes or the holders of the Notes, as the case
may be, net of all costs, expenses and liabilities incurred by RTI and the RTI
Notes Trustee in connection with the sale or disposition of the assets of
Canadian Drawn Steel Company, Inc.
All amounts paid or payable with respect to the RTI Notes to the RTI
Notes Trustee or the holders of the RTI Notes under the RTI Notes Indenture or
otherwise, including without limitation, (i) all amounts representing proceeds
from the sale or other disposition of assets constituting collateral for the RTI
Notes that were not acquired by the Company pursuant to the RTI Asset Purchase
Agreement (but excluding any Canadian Drawn Steel Proceeds) and (ii) $5.0
million of cash payments to be paid by the Company pursuant to the terms of the
Sale Order, (x) are not obligations of the Company nor the Restricted
Subsidiaries to the Trustee or the Holders under this Indenture and the Notes
and shall have no effect on this Indenture and the Notes and (y) when paid,
shall not affect a reduction of any amount payable by the Company or the
Restricted Subsidiaries under this Indenture or the Notes. It is the
understanding of the parties that, based upon the Stipulation and the Sales
Order, the obligations set forth in clause (i) of the immediately preceding
sentence are obligations of RTI and the obligations set forth in clause (ii) of
the immediately preceding sentence are obligations of the Company.
SECTION 4.2 Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, The City of New
York or The City of Chicago, State of Illinois, an office or agency (which may
be an office of the Trustee or an affiliate of the Trustee, Registrar, or
co-Registrar) where Notes may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Issuers in respect of the Notes and this Indenture may be served. The
Issuers will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain any such
41
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 address of the Trustee set forth in Section 13.2.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York or The City of Chicago, State of Illinois, for
such purposes. The Issuers will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Issuers hereby initially designate the Corporate Trust Office of
the Trustee as an agency of the Issuers in accordance with Section 2.3.
SECTION 4.3 Corporate Existence.
Subject to Article V, the Company shall do or cause to be done, at its
own cost and expense, all things necessary to and will cause each of its
Restricted Subsidiaries to, preserve and keep in full force and effect the
corporate, limited liability company or partnership existence and rights
(charter and statutory), licenses and/or franchises of the Company and each of
its Restricted Subsidiaries; provided, however, that subject to Article XI and
the terms of any Security Document, neither the Company nor any of its
Restricted Subsidiaries shall be required to preserve any such rights, licenses
or franchises if the Board of Directors of the Company shall reasonably
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries, taken as a whole,
and the loss thereof is not adverse in any material respect to the Holders; and
provided, further, that this covenant shall not prohibit the combination of any
Restricted Subsidiary with the Company or with any other Restricted Subsidiary.
SECTION 4.4 Payment of Taxes and Other Claims
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon its or its Restricted Subsidiaries'
income, profits or property and (b) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon its property;
provided, however, that, subject to the terms of the applicable Security
Documents, 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
negotiations or proceedings and for which disputed amounts adequate reserves (in
the good faith judgment of the Board of Directors of the Company) have been made
or where the failure to so pay would not have a material adverse affect upon the
Company and its Restricted Subsidiaries, taken as a whole.
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SECTION 4.5 Maintenance of Properties, Insurance, and Books and Records;
Compliance with Law; Inspection Rights.
(a) Subject to, and in compliance with, the provisions of Sections 11.3
and 11.4 and to the provisions of each applicable Security Document, the Company
shall, and shall cause each of its Restricted Subsidiaries to, at all times
cause all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order (reasonable wear
and tear and casualty excepted) and supplied with all necessary equipment, and
shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto. The Company or any Restricted Subsidiary
may close or shutdown any Specified Facility with the approval of the Board of
Directors of the Company, provided that the Company shall notify the Trustee in
writing of such closure or shutdown at least 30 days in advance of the date on
which such closure or shutdown is to be effected.
(b) The Company and each of its Restricted Subsidiaries shall maintain
insurance subject to the provisions of each applicable Security Document in such
amounts and covering such risks as are usually and customarily carried with
respect to similar facilities according to their respective locations.
(c) The Company shall, and shall cause each of its Restricted
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and each Restricted Subsidiary of the Company, in
accordance with GAAP.
(d) The Company shall and shall cause each of its Restricted
Subsidiaries to comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
condition (financial or otherwise) of the Company and its Restricted
Subsidiaries, taken as a whole.
(e) Upon the written request of the Trustee delivered by the Trustee to
the Company a reasonable period of time in advance of any proposed inspection,
the Company will, at reasonable times during ordinary business hours, permit the
Trustee by its representatives to inspect the books and records of the Company
and of each of its Subsidiaries and the plants and properties of the Company and
of each of its Subsidiaries constituting Collateral. As a condition to any such
inspection, (i) the Trustee shall execute and deliver in favor of the Company a
confidentiality agreement in form and substance reasonably satisfactory to the
Company and the Trustee which, among other things shall provide that the Trustee
shall not provide any information obtained by it in the course of such
inspection to any Holder unless such Holder has entered into a confidentiality
agreement in form and substance reasonably satisfactory to the Company and the
Trustee and (ii) the Trustee shall agree to comply, and cause its
representatives to comply, with all occupational health and safety rules and
regulations governing the operation of the facilities of the Company and its
Subsidiaries.
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SECTION 4.6 Compliance Certificates.
(a) The Issuers shall deliver to the Trustee within 120 days after the
end of each fiscal year and within 45 days after the end of each fiscal quarter,
an Officers' Certificate stating that a review of the activities of the Issuers
during the preceding fiscal year or preceding fiscal quarter, as the case may
be, has been made under the supervision of the signing Officers with a view to
determining whether the Issuers have kept, observed, performed and fulfilled
their respective obligations under this Indenture, and further stating that, to
the best knowledge of each Officer signing such certificate, the Issuers have
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and are not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred and be continuing, describing all such Defaults or
Events of Default of which such Officers may have knowledge, their status and
what action the Issuers are taking or propose to take with respect thereto), and
that to the best of his knowledge no event has occurred and remains in existence
by reason of which payments on account of the principal of or interest, if any,
on the Notes is prohibited or if such event has occurred a description of the
event and what action the Company has taken or proposes to take with respect
thereto.
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, within 10 days of the Company becoming aware of any
Event of Default or any event which may become an Event of Default after notice
from the Trustee, an Officers' Certificate specifying such Event of Default or
event and what action the Company is taking or proposes to take with respect
thereto.
SECTION 4.7 Provision of Financial Information; Registration of Notes.
(a) Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, or any successor provision thereto, the Company shall file
with the SEC (but only if the SEC accepts such filings) the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the SEC pursuant to such Section 13(a) or 15(d) (each, an "Exchange
Act Report") or any successor provision thereto if the Company were so subject,
such documents to be filed with the SEC on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so to
file such documents if the Company were so subject. The Company shall also in
any event (a) within 15 days of each Required Filing Date (whether or not
permitted or required to be filed with the SEC) (i) transmit (or cause to be
transmitted) by mail to all Holders, as their names and addresses appear in the
Note register, without cost to such Holders, and (ii) file with the Trustee,
copies of the annual reports, quarterly reports and other documents which the
Company is required to file with the SEC pursuant to this Section, or, if such
filing is not so permitted (or, prior to the consummation of the Exchange Offer,
when the Company is not subject to Section 13(a) or 15(d) of the Exchange Act),
information and data of a similar nature, and (b) if, notwithstanding the
preceding sentence, filing such documents by the Company with the SEC is not
permitted by SEC practice or applicable law or regulations, promptly upon
written request supply copies of such documents to any Holder.
(b) The Company covenants and agrees that: (x) pursuant to and in
accordance with the terms of the Registration Rights Agreement, the Issuers will
be obligated to register under the
44
Securities Act and consummate the distribution of the Notes from the Liquidation
Trust to the beneficiaries of the Liquidation Trust, and (y) in the event that
such registration and distribution of the Notes from the Liquidation Trust to
the beneficiaries of the Liquidation Trust are not consummated within 180 days
from the Issue Date, the interest rate on the Notes shall increase by 100 basis
points commencing on the 180th day after the Issue Date and interest at such
increased rate shall continue until the date that (i) such registration is
effective, (ii) distribution of the Notes from the Liquidation Trust to the
beneficiaries of the Liquidation Trust is consummated, and (iii) as a result of
such registration and distribution, the Issuers, as issuers of the Notes, shall
have caused the Notes to be freely transferable as unrestricted securities that
are immediately saleable by the holders thereof (other than holders who are
control persons or affiliates of the Issuers or any holder who by virtue of its
own legal status under the Securities Act or by agreement is subject to a
restriction on transfer of the Notes) in the United States of America (clauses
(i), (ii) and (iii), the "Registration Obligations"). The Issuers shall, in
accordance with the terms of the Registration Rights Agreement, take all actions
necessary to promptly fulfill the Registration Obligations. The Company shall
notify the Trustee promptly after any such increase or decrease in the Interest
Rate on the Notes becomes effective.
SECTION 4.8 Further Assurance to the Trustee or Collateral Agent.
The Issuers shall, upon request of the Trustee or the Collateral Agent,
execute and deliver such further instruments and do such further acts as may
reasonably be necessary or proper to carry out more effectively the provisions
of this Indenture and any Security Document.
SECTION 4.9 Limitation on Additional Indebtedness and Certain Preferred Stock.
(a) The Company will not (A) incur any Indebtedness (including any
Acquired Indebtedness) and (B) permit any of the Restricted Subsidiaries to
incur any Indebtedness (including Acquired Indebtedness) or issue any Preferred
Stock; provided that the Company and the Restricted Subsidiaries will be
permitted to incur Indebtedness (including Acquired Indebtedness) if,
immediately after giving pro forma effect to the incurrence thereof, the
Consolidated Fixed Charge Coverage Ratio of the Company would be greater than or
equal to 2.50 to 1.
(b) The provisions of Section 4.9(a) shall not apply to the incurrence
of any of the following items of Indebtedness.
(i) Indebtedness under the Notes, the Guarantees and this
Indenture;
(ii) Indebtedness of the Company and the Restricted
Subsidiaries outstanding on the Issue Date and listed on Schedule
4.9(b)(ii);
(iii) Indebtedness of the Company and the Restricted
Subsidiaries under the New Credit Facility; provided that the aggregate
principal amount of (x) all Indebtedness of the Company and the
Restricted Subsidiaries outstanding under the New Credit Facility and
(y) all outstanding Indebtedness of the Company or the Restricted
Subsidiaries (including but not limited to Sale-Leasebacks and
securitizations) secured by working capital of the Company or the
Restricted Subsidiaries, inventory of the Company or the Restricted
Subsidiaries, accounts receivable of the Company or the Restricted
45
Subsidiaries, and the CAST-ROLL Facility, in the aggregate does not
exceed $375.0 million at any time;
(iv) Indebtedness of a Restricted Subsidiary owed to and
held by the Company or another Restricted Subsidiary, in each case
which is not subordinated in right of payment to any Indebtedness of
such Restricted Subsidiary, except that (i) any transfer of such
Indebtedness by the Company or a Restricted Subsidiary (other than to
the Company or to a Restricted Subsidiary) and (ii) the sale, transfer
or other disposition by the Company or any Restricted Subsidiary of
Capital Stock of or the occurrence of any other event which results in
any Restricted Subsidiary which is owed Indebtedness of another
Restricted Subsidiary ceasing to be a Restricted Subsidiary shall, in
each such event, be deemed an incurrence of Indebtedness subject to the
other provisions of this Section 4.9;
(v) Indebtedness of an Issuer owed to and held by a
Restricted Subsidiary; provided that if such Indebtedness is owed to
and held by a Restricted Subsidiary (other than Blue Steel Capital
Corp.) that is not a Subsidiary Guarantor, it shall be unsecured and
subordinated in right of payment to the payment and performance of such
Issuer's obligations under this Indenture and the Notes; provided,
further, in any such case, that (x) any transfer of such Indebtedness
by a Restricted Subsidiary (other than to another Restricted
Subsidiary) and (y) the sale, transfer or other disposition by the
Company or any Restricted Subsidiary of Capital Stock or the occurrence
of any other event which results in any Restricted Subsidiary which
holds Indebtedness of the Company ceasing to be a Restricted Subsidiary
shall, in each such event, be deemed an incurrence of Indebtedness
subject to the other provisions of this Section 4.9;
(vi) Interest Rate Protection Obligations of the Company or
a Restricted Subsidiary relating to Indebtedness of the Company or a
Restricted Subsidiary; provided that (x) any Indebtedness to which any
such Interest Rate Protection Obligations relate is otherwise permitted
to be incurred under this Section 4.9 and (y) the notional principal
amount of any such Interest Rate Protection Obligations at the time of
incurrence does not exceed the principal amount of the Indebtedness to
which such Interest Rate Protection Obligations relate;
(vii) Indebtedness of the Company or any of the Restricted
Subsidiaries under (x) Currency Agreements relating to Indebtedness or
other obligations of the Company or any of the Restricted Subsidiaries
entered into to hedge actual currency exposure or (y) commodities
hedging agreements entered into to hedge actual commodity price
exposure;
(viii) Indebtedness of the Company or any of the Restricted
Subsidiaries (including Indebtedness represented by letters of credit
for the account of the Company or a Restricted Subsidiary) in respect
of financing workers' compensation, health, disability or other
employee benefits, social security payments, property, casualty or
liability insurance or other claims, payment obligations in connection
with self-insurance or similar requirements in the ordinary course of
business;
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(ix) Indebtedness of the Company or any of the Restricted
Subsidiaries representing obligations in respect of performance bonds,
bid bonds, appeal bonds, surety bonds, completion guarantees and
similar obligations and trade-related letters of credit, in each case
provided in the ordinary course of business, including those incurred
to secure health, safety and environmental obligations in the ordinary
course of business, and any extension, renewal or refinancing thereof
to the extent not provided to secure the repayment of other
Indebtedness and to the extent that the amount of refinancing
Indebtedness is not greater than the amount of Indebtedness being
refinanced;
(x) Indebtedness of the Company or any of the Restricted
Subsidiaries arising from agreements of an Issuer or a Restricted
Subsidiary providing for indemnification, adjustment of purchase price,
earnouts or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Restricted
Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or
Restricted Subsidiary for the purpose of financing such acquisition;
(xi) Indebtedness of the Company or any of the Restricted
Subsidiaries extinguished within five Business Days of incurrence
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds;
(xii) Government Assisted Indebtedness (New York) and
Government Assisted Indebtedness (Ohio), provided that the
documentation for such Government Assisted Indebtedness incorporates
the requirements for such Government Assisted Indebtedness set forth in
this Indenture;
(xiii) in addition to the Indebtedness described in clauses
(i) through (xii) above or clauses (xiv) and (xv) below, Indebtedness
of the Company or any of the Restricted Subsidiaries (including
Indebtedness of the Company or any of the Restricted Subsidiaries which
is secured by purchase money liens on personal property or fixtures or
which constitutes Capitalized Lease Obligations in an aggregate
principal amount not to exceed $25.0 million at any time outstanding),
in an aggregate principal amount not to exceed $50.0 million at any
time outstanding;
(xiv) Acquired Indebtedness assumed by the Company or any
Restricted Subsidiary in connection with the acquisition by New CDSC of
all or substantially all of the assets of Canadian Drawn Steel Company
Inc. upon the exercise of the purchase option therefor provided for in
the RTI Asset Purchase Agreement; and
(xv) Refinancing Indebtedness of Indebtedness permitted
under any of clauses (i) through (xii) and (xiv) above.
(c) For purposes of determining compliance with this Section 4.9, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of permitted Indebtedness described in clauses (i) through (xv)
of paragraph (b) above or is entitled to be incurred pursuant to paragraph (a)
above, the Company shall, in its sole discretion, classify or
47
reclassify such item of Indebtedness in any manner that complies with this
Section 4.9 and such item of Indebtedness will be treated as having been
incurred pursuant to only one of clauses (i) through (xv) of paragraph (b) or
pursuant to paragraph (a) above. Accrual of interest, the accretion of accreted
value and the payment of interest in the form of additional Indebtedness will
not be deemed to be an incurrence of Indebtedness for purposes of this Section
4.9.
SECTION 4.10 Limitation on Sale-Leaseback Transactions.
The Issuers will not, and will not permit any of the Restricted
Subsidiaries to, enter into any Sale-Leaseback Transaction or securitization
transaction with respect to any property or assets of the Issuers or any
Restricted Subsidiary constituting Collateral. Notwithstanding the foregoing,
the Company and the Restricted Subsidiaries may enter into Sale-Leaseback
Transactions with respect to property or assets not constituting Collateral;
provided that (a) the Attributable Value of such Sale-Leaseback Transaction
shall be deemed to be Indebtedness of the Company or such Restricted Subsidiary,
as the case may be, and (b) such Sale-Leaseback Transaction shall be in
compliance with Section 4.11.
SECTION 4.11 Limitation on Liens.
The Company will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
affirm or permit or suffer to exist or remain in effect any Liens:
(a) upon any item of Collateral other than Permitted Collateral Liens;
and
(b) upon any other properties or assets of the Company or of any of the
Restricted Subsidiaries, whether owned on the Issue Date or acquired after the
Issue Date, not constituting Collateral, except (i) Liens existing on the Issue
Date to the extent and in the manner such Liens are in effect on the Issue Date
and (ii) Permitted Liens.
Notwithstanding the foregoing sentence of this Section 4.11, the
Company and the Pledgors will be permitted to incur and suffer to exist purchase
money Liens to finance the acquisition or construction of personal property or
fixtures of the Company or any Restricted Subsidiary free of the Liens securing
the Notes under the Security Documents for so long as the related Indebtedness
(and refinancings thereof) shall be outstanding, notwithstanding any contrary
provision of the Security Documents or this Indenture; provided that (i) the
aggregate principal amount of all related purchase money Indebtedness (and
refinancings thereof) contemplated by this sentence shall not exceed $25.0
million at any time outstanding and shall be incurred in compliance with the
requirements of Section 4.9(b)(xiii), (ii) the related Indebtedness shall not be
secured by any property or assets of the Company or any of its Subsidiaries
other than the property or assets so acquired or constructed and which do not
constitute Collateral, and (iii) each such purchase money Lien shall either (x)
exist at the time of acquisition or construction or (y) be created within 180
days of such acquisition or construction.
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SECTION 4.12 Limitation on Restricted Payments.
(a) The Issuers will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly do any of the following (such payments
or Investments described in the following clauses (i), (ii), (iii) and (iv) are
collectively referred to as "Restricted Payments"),:
(i) declare or pay any dividend or make any other
distribution or payment on or in respect of Capital Stock of the
Company or any payment made to the direct or indirect holders (in their
capacities as such) of Capital Stock of the Company (other than
dividends or distributions payable solely in Capital Stock of the
Company (other than Disqualified Capital Stock) or in options, warrants
or other rights to purchase Capital Stock of the Company (other than
Disqualified Capital Stock));
(ii) purchase, redeem, defease or otherwise acquire or
retire for value any Capital Stock of the Company (other than any such
Capital Stock owned by a Restricted Subsidiary);
(iii) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value, in each
case, prior to any scheduled maturity, scheduled repayment, scheduled
sinking fund payment or other Stated Maturity, any Subordinated
Indebtedness (other than (A) the payment, redemption, repurchase,
defeasance, acquisition or retirement of Subordinated Indebtedness in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in any case due within one year of the
date of such payment, redemption, repurchase, defeasance, acquisition
or retirement and (B) any such Subordinated Indebtedness payable to the
Company or a Restricted Subsidiary); or
(iv) make any Investment (other than any Permitted
Investment) in any Person;
unless, at the time of and after giving effect to the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, shall be
the Fair Market Value on the date of such Restricted Payment of the asset(s)
proposed to be transferred by the Company or such Restricted Subsidiary, as the
case may be, pursuant to such Restricted Payment) each of the following
conditions is satisfied:
(A) no Default or Event of Default shall have occurred and be
continuing; and
(B) such Restricted Payment, together with the aggregate amount of all
Restricted Payments made by the Company and its Restricted Subsidiaries from and
after the Issue Date would not exceed the sum of, without duplication, (1) 50%
of the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the Issue Date and ending on the last day of the fiscal quarter of the
Company immediately preceding the date of such proposed Restricted Payment (or,
if such aggregate cumulative Consolidated Net Income of the Company for such
period shall be a deficit, minus 100% of such deficit) plus (2) 100% of the
aggregate net cash proceeds and the Fair Market Value of property other than
cash received by the Company (x) from the issuance or sale of Capital Stock
(excluding Disqualified Capital Stock, but including Capital Stock issued upon
the conversion of convertible Indebtedness or from the exercise of options,
warrants or
49
rights to purchase Capital Stock (other than Disqualified Capital Stock)) of the
Company after the Issue Date, (y) as a capital contribution in respect of
Capital Stock (other than Disqualified Capital Stock) of the Company after the
Issue Date, in each case to or from any Person (other than to or from a
Restricted Subsidiary), or (z) from Asset Sales of Collateral plus (3) 100% of
the aggregate net cash proceeds and the Fair Market Value of property (other
than property constituting Investments that would be Restricted Payments or
property which constitutes Collateral) that are received upon the sale,
liquidation or other disposition or other return of capital for cash in respect
of any Investment constituting a Restricted Payment made after the Issue Date to
the extent included in the calculation of this clause (B), less the cost of the
disposition of such Investment.
For purposes of the preceding clause (B)(2), upon the issuance of
Capital Stock either from the conversion of convertible Indebtedness or in
exchange for outstanding Indebtedness or upon the exercise of options, warrants
or rights, the amount counted as net cash proceeds received will be the cash
amount received by the Company at the original issuance of the Indebtedness that
is so converted or exchanged or from the issuance of options, warrants or
rights, as the case may be, plus the incremental amount of cash received by the
Company, if any, upon the conversion, exchange or exercise thereof, in each case
when so received.
(b) None of the provisions of paragraph (a) above will prohibit:
(i) the payment of any dividend within 60 days after the
date of its declaration, if at the date of declaration such payment
would have complied with the provisions of this Indenture;
(ii) the redemption, repurchase or other acquisition or
retirement of any shares of any class of Capital Stock of the Company
or any Restricted Subsidiary in exchange for, or out of the net cash
proceeds of, (x) a substantially concurrent issue and sale of other
shares of Capital Stock (other than Disqualified Capital Stock) of the
Company to any Person (other than to a Subsidiary of the Company) or
(y) a capital contribution in respect of Capital Stock (other than
Disqualified Capital Stock) of the Company; provided that the amount of
any such net cash proceeds that are utilized for any such redemption,
repurchase or other acquisition or retirement shall be excluded from
clause (B) of paragraph (a) above;
(iii) any redemption, repurchase or other acquisition or
retirement of (1) Subordinated Indebtedness in exchange for, or out of
the net cash proceeds of (x) a substantially concurrent issue and sale
of Capital Stock (other than Disqualified Capital Stock) of the Company
to any Person (other than to a Subsidiary of the Company) or (y) a
capital contribution to the Company; provided that the amount of any
such net cash proceeds that are utilized for any such redemption,
repurchase or other acquisition or retirement shall be excluded from
clause (B) of paragraph (a) above; or (2) Indebtedness of the Company
issued to any Person (other than a Subsidiary of the Company), so long
as such Indebtedness is Subordinated Indebtedness which (x) has no
scheduled principal payments earlier than the 91st day after the final
maturity date of the Notes and (y) is subordinated to the Notes in the
same manner and at least to the same extent as the Subordinated
Indebtedness so purchased, exchanged, redeemed, acquired or retired;
50
(iv) Investments made out of the net cash proceeds of a
substantially concurrent issue and sale of shares of Capital Stock
(other than Disqualified Capital Stock) of the Company to any Person
(other than to a Subsidiary of the Company); provided that the amount
of any such net cash proceeds shall be excluded from clause (B) of
paragraph (a) above;
(v) payments to Blue Bar to allow Blue Bar to pay its
operating and administrative expenses, including, without limitation,
directors fees, legal and audit expenses, SEC compliance expenses and
corporate franchise and other taxes that are directly attributable to
the Company and the Restricted Subsidiaries;
(vi) payments made by the Company to permit the purchase or
redemption of its Capital Stock (including related stock appreciation
rights or similar securities) held by present or former officers,
employees or consultants of the Company or any of its Subsidiaries or
by any employee pension benefit plan or management equity or stock
option plan or agreement upon such Person's death, disability,
retirement or termination of employment or under the terms of any such
employee pension benefit plan or any other agreement under which such
Capital Stock or related rights were issued; provided that the
aggregate amount of such purchases or redemptions that may be made
under this clause (vi) shall not exceed $3.0 million per year (the
"Base Amount"); provided that, to the extent that not all of the Base
Amount is utilized in any year, the unused portion of such Base Amount
may be carried forward to and be deemed part of the Base Amount only
for the immediately subsequent year and not any succeeding year;
(vii) provided that the Company is then treated as a limited
liability company (or a corporation filing consolidated, combined or
unitary tax returns with Blue Bar) for federal or state income tax
purposes, distributions in respect of Capital Stock of the Company or
Investments by the Company to the extent necessary to permit direct or
indirect beneficial holders to receive tax distributions, as provided
for in the limited partnership agreement of Blue Bar, not to exceed the
tax liabilities payable by such holders in respect of income of the
Company and any of its Subsidiaries that, for tax purposes, are treated
as pass-through or disregarded entities; provided that nothing in this
clause (vii) will be deemed to permit any such distribution (1) in
excess of amounts that a consolidated group that includes the Company
as the "parent" and any of its Subsidiaries that, for tax purposes, are
treated as pass-through or disregarded entities would be required to
pay on a stand-alone basis were such entities taxable as a consolidated
group of corporations, except for distributions to the extent necessary
to permit such holders to pay their tax liabilities attributable to the
disproportionate sharing of income or loss of the Company and its
Subsidiaries and (2) to pay any tax liabilities of direct or indirect
investors in the Company or Blue Bar resulting from the conversion of
the Company from a limited liability company to corporate form,
including pursuant to a Roll-up Transaction;
(viii) the declaration and payment of dividends or
distributions to holders of any class or series of Disqualified Capital
Stock issued or incurred in compliance with Section 4.9;
51
(ix) repurchases of Capital Stock deemed to occur upon
exercise of stock options if such Capital Stock represents a portion of
the exercise price of such options; and
(x) the exchange of an Investment constituting a Restricted
Payment which was included in clause (B) of paragraph (a) above for
another Investment which would constitute a Restricted Payment of
approximately equal or greater Fair Market Value.
In computing the amount of Restricted Payments previously made for
purposes of clause (B) of paragraph (a) above, Restricted Payments made under
clauses (i), (iv), (v), (vi), (viii), and, without duplication to the extent
deducted in arriving at Consolidated Net Income, clauses (ii), (iii), (vii),
(ix) and (x) of this paragraph (b) shall not be so included.
SECTION 4.13 Disposition of Proceeds of Asset Sales.
--------------------------------------
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, consummate an Asset Sale of Collateral unless (i) such Asset
Sale of Collateral is for Fair Market Value, (ii) in the case of an Asset Sale
involving Collateral valued at $2.0 million or more such Fair Market Value is
evidenced by a certificate of an Independent Appraiser or an Independent
Financial Advisor (as applicable), (iii) 100% of the proceeds of such Asset Sale
of Collateral consist of cash and/or Cash Equivalents, (iv) such Asset Sale of
Collateral shall be in compliance with the applicable provisions of Articles XI
and XII, and (v) the Company shall apply the Net Cash Proceeds of such Asset
Sale of Collateral after receipt thereof as follows:
(1) to the extent such Net Cash Proceeds are received
from an Asset Sale of Collateral consisting of
Pledged Securities (other than the Capital Stock of
the Company) which is subject to a Permitted
Collateral Lien that ranks pari passu with the Lien
granted to the Collateral Agent for the benefit of
the Trustee and the Holders and secures Indebtedness
under the New Credit Facility ("Pari Passu Bank
Proceeds"), the Holders' Pro Rata Share of such Pari
Passu Bank Proceeds shall be immediately paid to the
Collateral Agent and applied in accordance with
subsection (c) below, and that portion of the Pari
Passu Bank Proceeds not constituting the Holders' Pro
Rata Share thereof to satisfy to the extent permitted
by applicable law all mandatory prepayment
obligations arising by reason of such Asset Sale
under the terms of the New Credit Facility, provided
that Pari Passu Bank Proceeds do not include any Net
Cash Proceeds of other Collateral not subject to such
Permitted Collateral Lien;
(2) to the extent such Net Cash Proceeds are received
from an Asset Sale of Collateral subject to a
Permitted Collateral Lien which ranks pari passu with
the Lien granted to the Collateral Agent for the
benefit of the Trustee and the Holders and secures
Government Assisted Indebtedness ("Pari Passu GAI
Proceeds"), the Holders' Pro Rata share of such Pari
Passu GAI Proceeds shall be immediately paid to the
Collateral Agent and applied in accordance with
subsection (c) below, and that portion of the Pari
Passu GAI Proceeds not constituting the Holders' Pro
Rata Share
52
thereof shall be applied to permanently reduce such
Government Assisted Indebtedness, provided that Pari
Passu GAI Proceeds do not include any Net Cash
Proceeds of other Collateral not subject to such
Permitted Collateral Lien; and
(3) other than as provided in (1) and (2) above, all
other Net Cash Proceeds received from an Asset Sale
of Collateral shall be immediately paid to the
Collateral Agent and applied in accordance with
subsection (c) below.
(b) The Company will not, and will not permit any of the Restricted
Subsidiaries to consummate an Asset Sale of property or assets not constituting
Collateral unless such Asset Sale is for Fair Market Value and the Net Cash
Proceeds of such Asset Sale ("Non-Collateral Proceeds") shall be applied to
satisfy all mandatory repayment obligations arising by reason of such Asset Sale
under the terms of any instrument (or related security agreement) governing any
Indebtedness which is secured by the assets which are subject to such Asset Sale
and, subject to the next sentence, the balance of such Non-Collateral Proceeds
shall be immediately paid to the Collateral Agent and applied in accordance with
subsection (c) below. Non-Collateral Proceeds received by the Company or a
Restricted Subsidiary in connection with any Asset Sale shall be required to be
paid to the Collateral Agent to the extent that such Non-Collateral Proceeds are
not applied, within 365 days of receipt thereof, to repay Indebtedness under the
New Credit Facility, to make Capital Expenditures, or to acquire tangible
assets.
(c) Whenever Net Cash Proceeds from an Asset Sale of Collateral are
received by the Company or any Restricted Subsidiary, the Company shall deposit,
or cause to be deposited, an amount equal to such Net Cash Proceeds with the
Collateral Agent as Trust Moneys and such Net Cash Proceeds shall be set aside
by the Collateral Agent pending application to the redemption of the Notes in
accordance with Section 3.2. At the direction of the Company, the Collateral
Agent shall invest such Net Cash Proceeds in Cash Equivalents. The interest and
dividends accrued and earned or paid on such investment of Net Cash Proceeds
from an Asset Sale of Collateral and such Net Cash Proceeds shall be Trust
Moneys subject to the lien of the Trustee and the Security Documents and used to
redeem the Notes in accordance with Section 3.2.
SECTION 4.14 Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit, cause or suffer any of the
Restricted Subsidiaries to, conduct any business or enter into any transaction
or series of transactions with or for the benefit of any of their respective
Affiliates (each an "Affiliate Transaction"), unless (a) such transaction or
series of related transactions is on terms reasonably believed to be no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those which could have been obtained in a comparable transaction at such time
with an unrelated Person, and (b) with respect to a transaction or series of
related transactions involving aggregate payments or Fair Market Value equal to
or greater than $10.0 million, the Company shall have delivered (i) an Officers'
Certificate to the Trustee certifying that such transaction or series of related
transactions complies with the preceding clause (a) and (ii) a written opinion
from an Independent Financial Advisor qualified to pass upon the required
matters stating that the terms
53
of such transaction or series of transactions are fair to the Company or such
Restricted Subsidiary, as the case may be, from a financial point of view.
Notwithstanding the foregoing, this Section 4.14 will not restrict the
Company or the Restricted Subsidiaries from: (a) making Restricted Payments
permitted under Section 4.12; (b) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by
the Board of Directors of the Company; (c) transactions among the Company and
Restricted Subsidiaries and transactions among Restricted Subsidiaries of the
Company otherwise permitted by this Indenture; (d) the making of loans and
advances and the payment of fees and indemnities to directors, officers and
employees of the Company and the Restricted Subsidiaries in the ordinary course
of business; (e) transactions pursuant to agreements in existence on the Issue
Date (including, without limitation, the limited liability company agreement for
the Company) or any amendment thereto (so long as any such amendment is not
disadvantageous to the Holders in any material respect); (f) any employment
agreements entered into by an Issuer or any of the Restricted Subsidiaries in
the ordinary course of business; (g) any sale of Capital Stock (other than
Disqualified Capital Stock) of the Company; (h) so long as no Default has
occurred and is continuing, the payment of management fees to Blue Bar not to
exceed $1.0 million in the aggregate in any calendar year (including payment of
accrued and unpaid amounts carried forward to subsequent periods,
notwithstanding the $1.0 million limitation otherwise applicable); (i) payments
of expenses to Blue Bar permitted pursuant to Section 4.12(b)(v); (j)
transactions with customers, clients, suppliers, or purchasers or sellers of
goods or services, in each case in the ordinary course of business and otherwise
in compliance with the terms of this Indenture; and (k) fees and expenses
incurred in connection with the consummation of the Transactions.
SECTION 4.15 Change of Control.
Upon the occurrence of a Change of Control (the date of such occurrence
being the "Change of Control Date"), the Issuers shall notify the Holders, in
the manner prescribed below, of such occurrence and shall make an offer to
purchase (the "Change of Control Offer") on a Business Day (the "Change of
Control Payment Date") that is not later than 60 days following the Change of
Control Date, all Notes then outstanding at a purchase price equal to 100% of
the aggregate principal amount thereof plus accrued and unpaid interest thereon
to the Change of Control Payment Date.
Notice of a Change of Control Offer shall be mailed by the Issuers to
the Holders not less than 30 days nor more than 60 days before the Change of
Control Payment Date. The Change of Control Offer shall remain open from the
time of mailing for at least 20 Business Days and until 5:00 p.m., New York City
time, on the Business Day preceding the Change of Control Payment Date. The
notice, which shall govern the terms of the Change of Control Offer, shall
include such disclosures as are required by law and shall state:
(a) that a Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes validly tendered and not properly withdrawn will
be accepted for payment;
54
(b) the purchase price (including the amount of accrued interest, if
any) for each Note and the Change of Control Payment Date;
(c) that any Note not tendered for payment will continue to accrue
interest in accordance with the terms thereof;
(d) that, unless the Issuers default on making the payment, any Note
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date;
(e) that Holders electing to have Notes purchased pursuant to a Change
of Control Offer will be required to surrender their Notes to the Paying Agent
at the address specified in the notice prior to 5:00 p.m., New York City time,
on the Business Day preceding the Change of Control Payment Date and must
complete any form letter of transmittal proposed by the Issuers;
(f) that Holders of Notes will be entitled to withdraw their election
if the Paying Agent receives, not later than 5:00 p.m., New York City time, on
the Business Day preceding the Change of Control Payment Date, a tested telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, the Notes certificate number
(if any) and a statement that such Holder is withdrawing his election to have
such Notes purchased;
(g) that Holders whose Certificated Notes are purchased only in part
will be issued Certificated Notes equal in principal amount to the unpurchased
portion of the Notes surrendered;
(h) the instructions that Holders must follow in order to tender their
Notes; and
(i) the summary of the circumstances and relevant facts regarding such
Change of Control.
On the Change of Control Payment Date, the Issuers shall (i) accept for
payment Notes or portions thereof validly tendered and not properly withdrawn
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
tendered and accepted and (iii) deliver to the Trustee the Notes so accepted
together with an Officers' Certificate setting forth the Notes or portions
thereof tendered to and accepted for payment by the Issuers. The Paying Agent
shall promptly mail or deliver to the Holders of Notes so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Certificated Note equal in principal
amount to any unpurchased portion of any Certificated Note surrendered. Any
Notes not so accepted shall be promptly mailed or delivered by the Issuers to
the Holder thereof.
Notwithstanding the foregoing, the Issuers shall not be required to
make a Change of Control Offer following a Change of Control if; with the prior
consent of the Issuers, a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Issuers and purchases all
Notes validly tendered and not properly withdrawn under such Change of Control
Offer. Alternatively, the Issuers may assign to any Person (the "Assignee")
their rights
55
pursuant to the foregoing paragraph as they may relate to all or any portion of
the Notes tendered in a Change of Control Offer. To the extent of any such
assignment, the Issuers' obligations under this Section 4.15 to purchase Notes
shall be discharged if the Assignee shall (i) purchase such Notes or portions
thereof validly tendered and not properly withdrawn pursuant to the Change of
Control Offer as to which the assignment is made and (ii) deposit with the
Paying Agent money sufficient to pay the purchase price of all Notes or portions
thereof so tendered in connection with the assignment, whereupon the Assignee
shall be entitled to have delivered to it or to its nominee the Notes so
purchased. Upon completion of any Change of Control Offer in connection with
which an assignment is made, the Issuers shall deliver to the Trustee an
Officers' Certificate setting forth all of the Notes or portions thereof
tendered and accepted for payment pursuant to the Change of Control Offer. The
Paying Agent shall promptly mail or deliver to the Holders of Notes purchased by
the Issuers or the Assignee payment in an amount equal to the purchase price,
and the Trustee shall promptly authenticate and mail or deliver to such Holders
a new Certificated Note equal in principal amount to any unpurchased portion of
the Certificated Note surrendered. No assignment made pursuant to this paragraph
shall relieve the Issuers of their obligations under the foregoing paragraph in
the event that the Assignee shall fail to deposit with the Paying Agent money
sufficient to pay the purchase price in respect of Notes or portions thereof as
to which an assignment has been made pursuant to this paragraph. Nothing herein
shall imply or create any liability by the Assignee to any Holder should the
Assignee fail to make such deposit and purchase the assigned Notes nor shall any
Assignee have any liability in respect of the Change of Control Offer.
A Change of Control Offer may be made in advance of a Change of
Control, and conditioned upon such Change of Control to the extent a definitive
agreement is in place for the Change of Control at the time of making of the
Change of Control Offer. Notes repurchased by the Issuers pursuant to a Change
of Control Offer will have the status of Notes issued but not outstanding or
will be retired and cancelled, at the option of the Issuers. Notes purchased by
a third party upon assignment or otherwise will have the status of Notes issued
and outstanding and shall continue to accrue interest.
The delivery to the Trustee of Notes accepted for payment pursuant to a
Change of Control Offer may be for the purpose of transfer of registration or
exchange or for the purpose of cancellation, as directed by the Issuers.
If the Issuers are required to make a Change of Control Offer, the
Issuers will comply with all applicable tender offer laws and regulations,
including, to the extent applicable, Section 14(e) and Rule 14e-1 under the
Exchange Act, and any other applicable securities laws and regulations and any
applicable requirements of any securities exchange on which the Notes are listed
and shall not be deemed to have breached their obligations under this Section
4.15 or any other provision of this Indenture by virtue thereof.
SECTION 4.16 Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of the 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, in cash or otherwise,
56
or make any other distributions on or in respect of its Capital Stock or any
other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to, or any investment in, the Company or any other Restricted
Subsidiary, or (d) sell, lease or transfer any of its properties or assets to
the Company or any other Restricted Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (i) this Indenture, the New Credit
Facility and the Security Documents, (ii) any restrictions existing under or
contemplated by agreements in effect on the Issue Date, (iii) with respect to a
Restricted Subsidiary of an Issuer that is not a Restricted Subsidiary of the
Company on the Issue Date, in existence at the time such Person becomes a
Restricted Subsidiary of such Company (but not created in contemplation of such
Person becoming a Restricted Subsidiary), (iv) applicable law or any applicable
rule, regulation or order, (v) customary restrictions arising from Liens
permitted under Section 4.11 to the extent related to the assets subject to such
Liens, (vi) restrictions on cash or other deposits imposed by customers under
contracts entered into in the ordinary course of business, (vii) customary
provisions contained in leases and other agreements entered into in the ordinary
course of business, (viii) any restrictions existing under any agreement that
refinances or replaces an agreement containing a restriction permitted by
clauses (i), (ii) and (iii) above; provided that the terms and conditions of any
such restrictions under this clause (viii) are not materially less favorable to
the Holders than those under or pursuant to the agreement being replaced or the
agreement evidencing the Indebtedness refinanced, (ix) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of the
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, so
acquired; provided, that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred, (x) purchase money
obligations for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (ix) above on the property so
acquired, (xi) any agreement for the sale of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending its sale, (xii)
Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Refinancing Indebtedness are no more restrictive,
taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced, (xiii) secured Indebtedness otherwise permitted
to be incurred pursuant to the provisions of Section 4.9 that limits the right
of the debtor to dispose of the assets securing such Indebtedness, (xiv)
provisions with respect to the disposition or distribution of assets or property
in joint venture agreements and other similar agreements entered into in the
ordinary course of business and (xv) Indebtedness incurred pursuant to clauses
(xii) and (xiii) of Section 4.9(b).
SECTION 4.17 Blue Steel Capital Corp.
The Company will at all times own 100% of the Capital Stock of Blue
Steel Capital Corp.
SECTION 4.18 Impairment of Security Interest.
The Company shall not, and shall not permit any of its Subsidiaries to,
take or knowingly or negligently omit to take any action which action or
omission might or would have the result of impairing the security interest in
favor of the Collateral Agent with respect to any Property then
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constituting Collateral, and the Company shall not grant to any Person any
interest whatsoever in such Collateral other than Liens permitted by this
Indenture and the Security Documents.
SECTION 4.19 Waiver of Stay, Extension or Usury Laws.
The Issuers covenant (to the extent permitted by law) that neither will
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive either Issuer from paying all or any portion of
the principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture; and (to the extent permitted by law) the
Issuers hereby expressly waive all benefit or advantage of any such law, and
covenant that they will not hinder, delay or impede the execution of any power
herein granted to the Trustee or the Collateral Agent, but will suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.20 Restrictions on Activities of Blue Steel Capital Corp.
Blue Steel Capital Corp. shall not hold any assets (other than the
$100.00 contributed to it in connection with its formation) or any Capital Stock
of any other Person, become liable for any obligations other than its
obligations under the Notes, or engage in any business activities other than to
serve as an Issuer and co-obligor with respect to the Notes; provided that Blue
Steel Capital Corp. may be a co-obligor with respect to Indebtedness if the
Company is a primary obligor of such Indebtedness and the net proceeds of such
Indebtedness are received by the Company or one or more of Restricted
Subsidiaries other than Blue Steel Capital Corp.
SECTION 4.21 Additional Subsidiary Guarantees.
(a) If the Issuers or any of their Restricted Subsidiaries shall
acquire or create another domestic Subsidiary after the date of this Indenture,
then such newly acquired or created Subsidiary shall become a Subsidiary
Guarantor hereunder by executing a supplemental indenture substantially in the
form of Exhibit B hereto and delivering an Opinion of Counsel, in accordance
with the terms of Section 13.5 hereof. In addition to, and without limiting the
generality of the foregoing covenant, the Company will cause New CDSC (on or
promptly after the date on which New CDSC exercises the purchase option referred
to in the RTI Asset Purchase Agreement) to execute and deliver a supplemental
indenture substantially in the form of Exhibit B hereto and deliver an Opinion
of Counsel, in accordance with the terms of Section 13.5 hereof.
(b) If a Restricted Subsidiary that is not then a Subsidiary Guarantor
guarantees any Indebtedness incurred under the New Credit Facility then that
Restricted Subsidiary must become a Subsidiary Guarantor and execute a
supplemental indenture satisfactory to the Trustee and deliver an Opinion of
Counsel to the Trustee. Notwithstanding the foregoing, any Subsidiary Guarantee
of a Restricted Subsidiary that was incurred pursuant to this Section 4.21(b)
shall provide by its terms that it shall be automatically and unconditionally
released upon the release or discharge of the guarantee which resulted in the
creation of such Restricted Subsidiary's Subsidiary Guarantee, except a
discharge or release by, or as a result of payment under, such guarantee.
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ARTICLE V
SUCCESSORS
SECTION 5.1 When Company May Merge, Etc.
The Company will not, in any transaction or series of transactions,
merge or consolidate with or into, or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets as an
entirety to, any Person or Persons, and the Company will not permit any of the
Restricted Subsidiaries to enter into any such transaction or series of
transactions if such transaction or series of transactions, in the aggregate,
would result in a sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all of the properties and assets of the
Company and the Restricted Subsidiaries, taken as a whole, to any other Person
or Persons, unless at the time of and after giving effect thereto:
(a) either (i) if the transaction or series of transactions is a merger
or consolidation, the Company shall be the surviving Person of such merger or
consolidation, or (ii) the Person formed by any such consolidation or into which
the Company or such Restricted Subsidiary is merged or to which the properties
and assets of the Company and/or any Restricted Subsidiary, as the case may be,
are transferred (any such surviving Person or transferee Person being a
"Surviving Entity") shall be a corporation or limited liability company
organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume by a supplemental
indenture executed and delivered to the Trustee in form reasonably satisfactory
to the Trustee, all the obligations of the Company under the Notes, and this
Indenture and the Security Documents, and in each case, this Indenture shall
remain in full force and effect;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions), no
Default shall have occurred and be continuing;
(c) each Subsidiary Guarantor (other than a Guarantor whose Guarantee
is to be released in accordance with the terms of this Indenture), unless it is
the other party to the transaction, shall, to the extent permitted by applicable
law, have by supplemental indenture confirmed that after consummation of such
transaction its Subsidiary Guarantee shall apply, as such Subsidiary Guarantee
applied on the date it was granted, to the obligations of the Company under the
Notes, to the obligations of the Company or such Person, as the case may be,
under this Indenture and the Notes; and
(d) the Company or the Surviving Entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction or series of
transactions, such supplemental indenture comply with this Section 5.1, and that
all conditions precedent in this Indenture relating to the transaction or series
of transactions have been satisfied.
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Notwithstanding the foregoing, the Company is permitted to reorganize
as a corporation; provided, that the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States confirming that the holders of the
Notes will not recognize income, gain or loss for Federal income tax purposes as
a result of such reorganization and will be subject to Federal income tax in the
same manner and at the same times as would have been the case if such
reorganization had not occurred, and the conditions set forth in clauses (a)
through (d) of this Section 5.1 are satisfied.
SECTION 5.2 Successor Entity Substituted.
Upon any consolidation, or merger or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.1 in
which the Company is not the continuing Person, the successor Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, lease or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture and
the Notes with the same effect as if such surviving entity had been named as
such, provided, however, that in the case of any transfer of all or
substantially all of the assets of the Company, the predecessor Issuer shall not
be relieved from the obligation to pay principal of and interest on the Notes
except where all of the Issuer's assets are sold in a transaction that meets the
requirements of Section 5.1 hereof.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
The following are "Events of Default" under this Indenture:
(a) default in the payment of any interest on the Notes when it becomes
due and payable and continuance of such default for a period of 30 days;
(b) default in the payment of the principal of the Notes when due and
payable, at maturity, upon acceleration, redemption, pursuant to a required
offer to purchase or otherwise;
(c) the failure by the Company to comply with its obligations under
Section 5.1, continued for 30 days after notice, or the failure by an Issuer to
comply for 30 days after notice with any of its obligations under Section 4.15;
(d) default in the performance of or compliance with, or breach of, any
term, covenant, condition or provision of the Notes, this Indenture (including
the Guarantee contained therein) or the Intercreditor Agreement (other than
defaults specified in clause (a), (b) or (c) above), and continuance of such
default or breach for a period of 60 days after written notice to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Notes;
(e) default in the performance of or compliance with, or breach of, any
term, covenant, condition, or provision of the Security Documents, which default
or breach shall continue unremedied for 45 days after written notice to the
Company and the applicable Pledgor by the Trustee or to the Company and the
applicable Pledgor and the Trustee by Holders of at least 25% in aggregate
principal amount of the outstanding Notes unless the remedy or cure of such
default requires work to be performed, acts to be done or conditions to be
removed which cannot, by their nature, reasonably be performed, done or removed
within such 45-day period, or if such remedy or cure is prevented by causes
outside of the control or responsibility of the Company, in which case no "Event
of Default" shall be deemed to exist so long as the Company shall have commenced
cure within such 45-day period and shall diligently prosecute the same to
completion, but in no event longer than 90 days thereafter;
(f) either (i) default or defaults in the payment of any principal or
interest under one or more agreements, instruments, mortgages, bonds,
debentures, guarantees or other evidences of Indebtedness (a "Debt Instrument")
under which the Company or one or more Restricted Subsidiaries or the Company
and one or more Restricted Subsidiaries then have outstanding Indebtedness in
excess of $10.0 million, individually or in the aggregate, within five days
after the date such payment was due and after the expiration of any applicable
grace period, or (ii) any other default or defaults under one or more Debt
Instruments under which the Company or one or more Restricted Subsidiaries or
the Company and one or more Restricted Subsidiaries then have outstanding
Indebtedness in excess of $10.0 million, individually or in the aggregate, and
in the case of this clause (ii) either (x) such Indebtedness is already due and
payable in full or (y) such default or defaults have resulted in the
acceleration of such Indebtedness prior to its express maturity;
(g) one or more judgments, orders or decrees of any court or regulatory or
administrative agency of competent jurisdiction for the payment of money in
excess of $10.0 million, either individually or in the aggregate, shall be
entered against the Company or any Restricted Subsidiary of the Company or any
of their respective properties and shall not be discharged or fully bonded and
there shall have been a period of 60 days after the date on which any period for
appeal has expired and during which a stay of enforcement of such judgment,
order or decree shall not be in effect;
(h) either (i) (x) the collateral agent under the New Credit Facility, (y)
any holder of Indebtedness secured by any of the Collateral or (z) any holder of
at least $10.0 million in aggregate principal amount of Indebtedness of the
Company or any of the Restricted Subsidiaries shall commence (or have commenced
on its behalf) judicial proceedings to foreclose upon assets of the Company or
any of the Restricted Subsidiaries having an aggregate Fair Market Value,
individually or in the aggregate, in excess of $10.0 million or shall have
exercised any right under applicable law or applicable security documents to
take ownership of any such assets in lieu of foreclosure; or (ii) any holder of
Government Assisted Indebtedness shall commence (or have commenced on its
behalf) judicial proceedings to foreclose upon any of the Collateral or shall
have exercised any right under applicable law or applicable security documents
to take ownership of any such Collateral in lieu of foreclosure;
(i) any Guarantee ceases to be in full force and effect or is declared null
and void or any Guarantor denies that it has any further liability under any
Guarantee or gives notice to such
61
effect (other than by reason of the termination of this Indenture or the release
of any such Guarantee in accordance with the Indenture);
(j) except as contemplated by their terms, any of the Security Documents or
the Intercreditor Agreement ceases to be in full force and effect or any of the
Security Documents or the Intercreditor Agreement ceases to give the Collateral
Agent or the Trustee, in any material respect, the Liens, rights, powers and
privileges purported to be created thereby;
(k) the Issuer or any Guarantor within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors or
(E) shall admit in writing its inability to pay its debts generally;
or
(l) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against any Issuer or any Guarantor in an
involuntary case or proceeding,
(B) appoints a Custodian of any Issuer or any Guarantor for all or
substantially all of its properties, or
(C) orders the liquidation of any Issuer or any Guarantor,
and in each case the order or decree remains unstayed and in effect for 60 days;
provided, however, that if the entry of such order or decree is appealed and
thereafter dismissed on appeal then the Event of Default hereunder by reason of
the entry of such order or decree shall be deemed to have been cured.
For purposes of this Section 6.1, the term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official charged with
maintaining possession or control over property for one or more creditors.
Subject to the provisions of Sections 7.1 and 7.2, the Trustee shall not be
charged with knowledge of any Event of Default unless written notice thereof
shall have been given to a Responsible Officer at the Corporate Trust Office of
the Trustee by the Company or any other Person.
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SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default with respect to any
Issuer specified in clauses (k) and (l) of Section 6.1) occurs and is
continuing, then the Holders of at least 25% in aggregate principal amount of
the outstanding Notes may, by written notice to the Issuers, the Trustee and the
Collateral Agent, and the Trustee upon the request of the Holders of not less
than 25% in aggregate principal amount of the outstanding Notes shall, declare
the principal of and accrued interest on, all the Notes to be due and payable
immediately. Upon any such declaration such principal shall become due and
payable immediately. If an Event of Default specified in clause (k) or (l) of
Section 6.1 with respect to any Issuer occurs and is continuing, then the
principal of and accrued interest on, all the Notes shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
After a declaration of acceleration under this Section 6.2, but before a
judgment or decree for payment of the money due has been obtained by the Trustee
and before any foreclosure (whether pursuant to judicial proceedings or
otherwise), or the taking of ownership in lieu of foreclosure, upon any
Collateral by the Collateral Agent (on behalf of the Trustee or Holders), by the
Trustee or at the direction of the Holders, the Holders of not less than a
majority in aggregate principal amount of outstanding Notes, by written notice
to the Issuers and the Trustee, may rescind such declaration if (a) the Issuers
have paid or deposited with the Trustee or the Collateral Agent a sum sufficient
to pay (i) all sums paid or advanced by the Trustee or the Collateral Agent
under this Indenture, the Security Documents and the Intercreditor Agreement and
the reasonable compensation, expenses, disbursements and advances of the Trustee
and the Collateral Agent and their respective agents and counsel, (ii) all
overdue interest on all Notes, (iii) the principal of any Notes which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Notes, and (iv) to the extent that payment of
such interest is lawful, interest upon overdue interest and overdue principal at
the rate borne by the Notes which has become due otherwise than by such
declaration of acceleration; (b) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction; and (c) all Events of
Default, other than the non-payment of principal of and interest on the Notes
that have become due solely by such declaration of acceleration, have been cured
or waived.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal and interest on the Notes or to enforce the performance of any
provision of the Notes, this Indenture or, subject to the terms of this
Indenture, the Security Documents and the Intercreditor Agreement.
All rights of action and claims under this Indenture or the Notes may be
enforced by the Trustee even if the Trustee does not possess any of the Notes or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
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Each Holder, by accepting a Note, acknowledges that the exercise of
remedies by the Collateral Agent with respect to the Collateral is subject to
the terms and conditions of this Indenture, the Security Documents, and the
Intercreditor Agreement and the proceeds received upon realization of this
Indenture and the Collateral shall be applied by the Collateral Agent in
accordance with the Security Documents and the Intercreditor Agreement and the
Trustee shall thereafter apply any proceeds received by it in accordance with
Section 6.11.
By acceptance of the benefits of this Indenture and the Security Documents
each Holder and the Trustee confirms that the Collateral Agent is authorized to
execute and deliver and perform its obligations under the Intercreditor
Agreement and the remedies set forth herein shall be subject to the terms of
such Intercreditor Agreement.
SECTION 6.4 Waiver of Past Default.
Subject to Sections 6.7 and 9.2, the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes by notice to the Trustee may
on behalf of the Holders of all the Notes waive any past Default or Event of
Default and its consequences, except a Default specified in Section 6.1(a) or
(b) or in respect of any provision hereof which cannot be modified or amended
without the consent of the Holder so affected pursuant to Section 9.2. When a
Default or Event of Default is so waived, it shall be deemed cured and shall
cease.
SECTION 6.5 Control by Majority.
Subject to Section 11.8, the Holders of at least a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it; provided, however, that the
Trustee may refuse to follow any direction that (i) conflicts with law or this
Indenture, any Security Document, or the Intercreditor Agreement, (ii) the
Trustee determines may be unduly prejudicial to the rights of another Holder, or
(iii) may involve the Trustee in personal liability unless the Trustee has
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by its following such direction; and provided, further, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6 Limitation on Suits.
(a) Subject to subsection (b) below, no Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, the Subsidiary Guarantees, the Security Document or the Intercreditor
Agreement for the appointment of a receiver or trustee, or for any other remedy
hereunder unless:
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(ii) the Holders of not less than 25% in aggregate principal amount of
outstanding Notes shall have made a written request to the Trustee to
institute proceedings or pursue remedies in respect of such Event of
Default in its own name, as Trustee hereunder;
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(iii) such Holder or Holders have offered and provided to the Trustee
and, if requested, the Collateral Agent, reasonable indemnity satisfactory
to the Trustee or Collateral Agent, as applicable, against the costs,
expenses and liabilities to be incurred in compliance with such request;
(iv) the Trustee or Collateral Agent, as applicable, for 60 days
after its receipt of such notice, request and offer of indemnity has failed
to institute any such proceeding or pursued any remedies; and
(v) no direction which is inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of outstanding Notes and, if
applicable, the Collateral Agent;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, the Guarantees, the Security Documents, or the Intercreditor
Agreement to affect, disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, the Guarantees, the Security Documents
or the Intercreditor Agreement, except in the manner herein provided and for the
equal and ratable benefit of all the Holders.
(b) The limitations set forth in subsection (a) do not apply to a suit
instituted by a Holder of a Note for the enforcement of the payment of the
principal of or interest on such Note on or after the respective due dates
expressed in such Note or the Indenture, including but not limited to principal
of or interest on such Notes due with respect to redemption or a Change of
Control.
SECTION 6.7 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 interest on a Note (including but
not limited to principal of or interest on such Notes due with respect to
redemption or a Change of Control) on or after the respective due dates
expressed in the Note or the Indenture, or to bring suit for the enforcement of
any such payment on or after such respective dates, is absolute and
unconditional and shall not be impaired or affected without the consent of such
Holder except to the extent that the institution or prosecution of such suit or
the entry of judgment therein would, under applicable law, result in the
surrender, impairment or waiver of the Lien of this Indenture and the Security
Documents upon the Collateral.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a) or (b) occurs and is
continuing, the Trustee and/or the Collateral Agent may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor on the Notes for the whole amount of principal and accrued interest
remaining unpaid, together with interest overdue on principal and, to the extent
that payment of such interest is lawful, interest on overdue installments of
interest, in each case at the Interest Rate and in such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses,
65
disbursements and advances of the Trustee and/or the Collateral Agent, their
respective agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee and/or the Collateral Agent shall be entitled and empowered to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and/or the Collateral Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee and/or the Collateral Agent, its or their respective
agents and counsel) and the Holders allowed in any judicial proceedings relative
to the Company, the Guarantors and the Pledgors, their creditors or their
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and/or the
Collateral Agent and, in the event that the Trustee and/or the Collateral Agent
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee and/or the Collateral Agent any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and/or the
Collateral Agent, its or their respective agents and counsel, and any other
amounts due the Trustee under Section 7.7. Nothing herein contained shall be
deemed to authorize the Trustee and/or the Collateral Agent to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI or as a
result of a distribution by the Collateral Agent pursuant to any of the Security
Documents, it shall pay out such money in the following order:
First: to the Trustee for all amounts due under Section 7.7;
Second: to Holders for interest accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for interest;
Third: to Holders for principal amounts owing under the Notes, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal; and
Fourth: to the Issuers or the Guarantors.
The Trustee, upon prior written notice to the Issuers, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
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
66
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7, or a suit by a group of
Holders holding in the aggregate more than 10% in principal amount of the
outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal or interest of the Notes on or after the due
dates of the Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default known to the Trustee has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, the Security Documents and the Intercreditor Agreement 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 his own affairs.
The Trustee shall not be deemed to have knowledge of an Event of Default unless
it is actually known by a Responsible Officer or written notice thereof has been
given to a Responsible Officer by the Company or another Person.
(b) Except during the continuance of an Event of Default actually known to
a Responsible Officer of the Trustee:
(i) The Trustee need perform only those duties as are specifically
set forth in this Indenture, in the Security Documents and the
Intercreditor Agreement and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(ii) 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 or such other
documents furnished to the Trustee that conform to the requirements of this
Indenture, the Security Documents and the Intercreditor Agreement. However,
in the case of any such certificates or opinions or such other documents
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such certificates and opinions to
determine whether they conform to the requirements of this Indenture, the
Security Documents and the Intercreditor Agreement.
(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:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1.
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(ii) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) 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 6.2, 6.4 or 6.5.
(d) No provision of this Indenture, the Security Documents or the
Intercreditor Agreement shall require the Trustee or the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or under the Security Documents or
exercise any of its rights or powers hereunder or under the Security Documents
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) Neither the Trustee nor the Collateral Agent shall be liable for
interest on any money received by it except as the Trustee or the Collateral
Agent may agree in writing with the Company. Except as otherwise provided for in
Section 7.1(g) below, money held in trust by the Trustee or the Collateral Agent
need not be segregated from other funds except to the extent required by law.
(g) Notwithstanding anything herein to the contrary, all Net Cash Proceeds
delivered to the Trustee or the Collateral Agent, as applicable, shall be
invested on behalf of the Company in Cash Equivalents pursuant to the written
directions of the Company delivered to the Trustee or the Collateral Agent, as
applicable. Such written directions shall specify the Cash Equivalents into
which the Net Cash Proceeds shall be invested and the maturity of such Cash
Equivalents, all subject to the requirements of this Indenture.
(h) Notwithstanding anything herein, in the Security Documents, or in the
Intercreditor Agreement to the contrary, the Trustee may refuse to perform any
duty or exercise any right or power arising hereunder, under the Security
Documents, or in the Intercreditor Agreement unless it is provided adequate
funds to enable it to do so and it receives indemnity satisfactory to it in its
sole discretion against any loss, liability, fee or expense.
SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, 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
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inquiry or investigation, it shall be entitled to examine, among other things,
the books, records and premises of the Company, personally or by agent or
attorney.
(b) Before the Trustee acts or refrains from acting with respect to any
matter contemplated by this Indenture, it may require an Officers' Certificate
or an Opinion of Counsel, which shall conform to the provisions of Section 13.5.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent (other than the
negligence or willful misconduct of an agent who is an employee of the Trustee)
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 reasonably believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel and the advice or opinion of such
counsel as to matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) Subject to Section 9.2 and Section 11.8 hereof, the Trustee may (but
shall not be obligated to), without the consent of the Holders, give any
consent, waiver or approval required hereunder or under any of the Security
Documents or the Intercreditor Agreement or by the terms hereof with respect to
the Collateral, but shall not without the consent of the Holders of a majority
in aggregate principal amount of the Notes at the time outstanding (i) give any
consent, waiver or approval or (ii) agree to any amendment or modification of
any of the Security Documents or the Intercreditor Agreement in each case which
will have an adverse effect on the interests of any Holder.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture, the Security Documents or the
Intercreditor Agreement at the request or direction of any Holder pursuant to
this Indenture, unless such Holder shall have offered to the Trustee and/or the
Collateral Agent security or indemnity satisfactory to the Trustee and/or the
Collateral Agent against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture, the Notes, the Intercreditor
Agreement, the Security Documents or the Collateral covered thereby, or of any
insurance thereon, it shall not be accountable for the Issuers' use of the
proceeds from the issuance of the Notes or any money paid to the Issuers or
69
upon the Issuers' direction under any provision of this Indenture, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
of the Issuers or the Guarantors in this Indenture, the Intercreditor Agreement,
the Security Documents or any document issued in connection with the sale of
Notes or any statement in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to the Notes occurs and is
continuing and is known to a Responsible Officer, the Trustee shall mail to each
Holder and the Collateral Agent notice of the Default or Event of Default within
30 days after obtaining knowledge thereof. Except in the case of a Default or an
Event of Default in payment of principal of or interest on any Note, the Trustee
may withhold the notice to such parties if the Trustee in good faith determines
that withholding the notice is in the interest of Holders.
SECTION 7.6 Reports by Trustee to Holders.
To the extent required by TIA Section 313(a), within 60 days after May 15
of each year following the date of this Indenture and for as long as there are
Notes outstanding hereunder, the Trustee shall mail to each Holder the Company's
brief report dated as of such date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b) and TIA Section 313(c) and
(d). A copy of such report at the time of its mailing to Holders shall be filed
with the SEC, if requested by the Issuers and accepted by the SEC, and each
stock exchange, if any, on which the Notes are listed. A copy of each report at
the time of its mailing to holders of Notes shall be mailed to the Issuers and
filed with the SEC, if requested by the Issuers and accepted by the SEC, and
each securities exchange, if any, on which the Notes are listed.
The Issuers shall promptly notify the Trustee if the Notes become listed on
any stock exchange, and the Trustee shall comply with TIA Section 313(d).
SECTION 7.7 Compensation and Indemnity.
The Issuers shall pay to the Trustee, the Paying Agent, the Registrar and
the Collateral Agent from time to time such compensation as shall be agreed in
writing from time to time between the Issuers and the Trustee, the Paying Agent,
the Registrar and the Collateral Agent for their respective services rendered
hereunder. The Trustee's, the Paying Agent's, the Registrar's and the Collateral
Agent's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee, the Paying
Agent, the Registrar and the Collateral Agent upon request for all out-of-pocket
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by any of them in addition to the compensation for
their respective services. Such expenses shall include the reasonable
compensation, out-of-pocket disbursements and expenses of the Trustee's, the
Paying Agent's, the Registrar's and the Collateral Agent's agents, accountants,
experts, custodians and counsel and any taxes or other expenses incurred by a
trust created pursuant to Section 8.1 hereof.
The Issuers shall, and do hereby, jointly and severally indemnify the
Trustee, the Paying Agent, the Registrar and the Collateral Agent for, and hold
each of them harmless against, any
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claim, demand, expense (including but not limited to attorneys' fees and
expenses), loss or liability incurred by any of them arising out of or in
connection with the administration of this Indenture, the Security Documents or
the Intercreditor Agreement, as applicable and their respective duties hereunder
or thereunder. Each of the Trustee, the Paying Agent, the Registrar and the
Collateral Agent shall notify the Issuers promptly of any claim asserted against
it for which it may seek indemnity. However, failure by the Trustee, the Paying
Agent, the Registrar or the Collateral Agent to so notify the Issuers shall not
relieve the Issuers of their obligations hereunder. Notwithstanding anything to
the contrary herein, the Issuers need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee, the Paying Agent, the
Registrar and the Collateral Agent which is determined by a court of competent
jurisdiction by final judgment to have been caused by the Trustee's, the Paying
Agent's, the Registrar's or the Collateral Agent's, as the case may be, own
willful misconduct, negligence or bad faith.
To secure the Issuers' payment obligations in this Section 7.7, each of the
Trustee, the Paying Agent, the Registrar and the Collateral Agent shall have a
lien prior to the Notes on all money or property held or collected by it, in its
capacity as Trustee, Paying Agent, Registrar and the Collateral Agent, as the
case may be, except money or property held in trust to pay principal of or
interest on particular Notes.
When any of the Trustee, the Paying Agent, the Registrar or the Collateral
Agent incurs expenses (including the reasonable fees and expenses of counsel) or
renders services after an Event of Default specified in Section 6.1(k) or (l)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The obligations under this Section 7.7 shall survive the resignation and
removal of the Trustee, the Paying Agent, the Registrar and the Collateral
Agent, discharge of this Indenture and, to the extent permitted by applicable
law, rejection or termination in bankruptcy.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time (subject to the further provisions of
this Section 7.8) by so notifying the Issuers in writing, such resignation to be
effective upon the appointment of a successor Trustee.
The Holders of a majority in aggregate principal amount of the outstanding
Notes may remove the Trustee by so notifying the Trustee in writing and may
appoint a successor Trustee with the consent of the Issuers, provided the
consent of the Issuers shall not be required at any time that a Default or Event
of Default shall have occurred and be continuing.
The Issuers may remove the Trustee within a reasonable period of time
following notice from the Issuers if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its
property; or
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(d) the Trustee becomes incapable of acting or fails to act in accordance
with its obligations hereunder.
If the Trustee resigns or is removed by the Issuers or if a vacancy exists
in the office of the 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. Within one year after the successor Trustee takes office,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding may appoint a successor Trustee, whose identity shall be subject to
the Issuers' consent, to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and the Issuers. Immediately after that, the retiring
Trustee shall transfer, after payment to it of all sums owing to the Trustee
pursuant to this Indenture, all property held by it as Trustee to the successor
Trustee (subject to the lien provided in Section 7.7), the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 25% in aggregate principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 and such Trustee has not
been removed by the Issuers pursuant to 7.8(a) above, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Any successor Trustee appointed pursuant to
this Indenture shall be deemed to be an appointment of such successor in all
capacities of the former Trustee under each of the Security Documents and such
successor shall assume all of the obligations of the Trustee pursuant to the
Security Documents.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Issuers' obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee. The retiring Trustee shall have no liability for any act or
omissions by any successor Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee corporation
or national banking association without any further act shall be the successor
Trustee provided such corporation shall be otherwise qualified and eligible
under this Article VII.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2), and (5). 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
72
comply with TIA Section 310(b); provided, however, that there shall be excluded
from the operation of TIA Section 310(b) any indenture or indentures under which
other Notes, or certificates of interest or participation in other Notes, of the
Issuers are outstanding if the requirements for such exclusion set forth in TIA
Section 310(b) are met. The provisions of TIA Section 310 shall apply to the
Issuers, as co-obligors of the Notes.
SECTION 7.11 Preferential Collection of Claims Against Issuers.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
The provisions of TIA Section 311(a) and (b) shall apply to the Issuers as
co-obligors on the Notes.
SECTION 7.12 Co-Trustee.
(a) If at any time or times it shall be necessary or prudent in order to
conform to any law of any jurisdiction in which any of the Collateral shall be
located, or the Trustee shall be advised by counsel satisfactory to it, that it
is necessary or prudent in the interest of the Holders, or 25% of the Holders of
the aggregate principal amount of the outstanding Notes shall in writing so
request the Trustee and the Issuers, or the Trustee shall deem it desirable for
its own protection in the performance of its duties hereunder, the Trustee and
the Issuers shall execute and deliver all instruments and agreements necessary
or proper to constitute another bank, trust company, or one or more Persons
approved by the Trustee and the Issuers, either to act as co-trustee or
co-trustees (each a "co-trustee") of all or any of the Collateral, jointly with
the Trustee, or to act as separate trustee or trustees of any such property. If
the Issuers shall not have joined in the execution of such instruments and
agreements within 10 days after they receive a written request from the Trustee
to do so, or if a notice of acceleration is in effect, the Trustee may act under
the foregoing provisions of this Section 7.12 without the concurrence of the
Issuers. The Issuers hereby appoint the Trustee as their agent and attorney to
act for them under the foregoing provisions of this Section 7.12 in either of
such contingencies.
(b) Every separate trustee and every co-trustee, other than any successor
Trustee appointed pursuant to Section 7.8, shall, to the extent permitted by
law, be appointed and act and be such, subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee hereunder shall be conferred or imposed and exercised or
performed by the Trustee and such separate trustee or separate trustees or
co-trustee or co-trustees, jointly, as shall be provided in the instrument
appointing such separate trustee or separate trustees or co-trustee or
co-trustees, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations shall be exercised and performed by
such separate trustee or separate trustees or co-trustee or co-trustees;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
73
(iii) the Issuers and the Trustee, at any time by an instrument in
writing executed by them jointly, may accept the resignation of or remove
any such separate trustee or co-trustee and, in that case by an instrument
in writing executed by them jointly, may appoint a successor to such
separate trustee or co-trustee, as the case may be, anything contained
herein to the contrary notwithstanding. If the Issuers shall not have
joined in the execution of any such instrument within 10 days after they
receive a written request from the Trustee to do so, or if a notice of
acceleration is in effect, the Trustee shall have the power to accept the
resignation of or remove any such separate trustee or co-trustee and to
appoint a successor without the concurrence of the Issuers, the Issuers
hereby appointing the Trustee their agent and attorney to act for them in
such connection in such contingency. If the Trustee shall have appointed a
separate trustee or separate trustees or co-trustee or co-trustees as above
provided, the Trustee may at any time, by an instrument in writing, accept
the resignation of or remove any such separate trustee or co-trustee and
the successor to any such separate trustee or co-trustee shall be appointed
by the Issuers and the Trustee, or by the Trustee alone pursuant to this
Section.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect
(except as to those obligations referred to in the penultimate paragraph of this
Section 8.1) as to all outstanding Notes and all rights of the Trustee and the
Holders in and to the Collateral under the Security Documents and the
Intercreditor Agreement shall be released when:
(a) either (i) all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or repaid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuers and thereafter repaid to the Issuers
or discharged from such trust) have been delivered to the Trustee for
cancellation or (ii) all Notes not theretofore delivered to the Trustee for
cancellation (except lost, stolen or destroyed Notes which have been replaced or
paid) have been called for redemption pursuant to the terms of the Notes or have
otherwise become due and payable and the Issuers have irrevocably deposited or
caused to be deposited with the Trustee money in an amount sufficient to pay and
discharge the entire Indebtedness on the Notes theretofore delivered to the
Trustee for cancellation, for payment of principal of and interest on the Notes
to the date of deposit together with irrevocable instructions from the Issuers
directing the Trustee to apply such money to the payment thereof at maturity or
redemption, as the case may be; and
(b) the Issuers and the Guarantors have paid all other sums payable under
this Indenture, the Notes, the Guarantees, the Security Documents, and the
Intercreditor Agreement (so long as such agreements relate to the Notes) by the
Issuers and the Guarantors; and
(c) there is no Default or Event of Default under this Indenture; and
74
(d) the Issuers have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating that all conditions precedent under this Section
8.1 relating to satisfaction and discharge of this Indenture, the Notes and the
Subsidiary Guarantees have been complied with.
Notwithstanding the foregoing paragraph, the Issuers' obligations in
Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2, 7.7, 7.8, 8.4 and 8.5 shall survive until
the Notes are no longer outstanding. After the Notes are no longer outstanding,
the Issuers' obligations in Sections 7.7, 8.4 and 8.5 shall survive.
After such delivery or irrevocable deposit the Trustee shall acknowledge in
writing the discharge of the Issuers' and the Guarantors' obligations under the
Notes, the Guarantees and this Indenture in accordance with this Section 8.1
except for those surviving obligations specified above.
SECTION 8.2 Intentionally Omitted.
SECTION 8.3 Application of Trust Money.
For greater clarity any money deposited with the Trustee for purposes of
this Article VIII shall be in U.S. dollars. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to Section 8.1,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of principal of and
interest on the Notes.
SECTION 8.4 Repayment to Issuers or the Guarantors.
Subject to Sections 7.7 and 8.1, the Trustee shall promptly pay to the
Issuers, or if deposited with the Trustee by any Guarantor, to such Guarantor,
upon receipt by the Trustee of an Officers' Certificate, any excess money, held
by it at any time. The Trustee and the Paying Agent shall pay to the Issuers, or
if deposited with the Trustee by any Guarantor, to such Guarantor, upon receipt
by the Trustee or the Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of principal or interest that
remains unclaimed for two years; provided, however, that the Trustee and the
Paying Agent before being required to make any payment may, but need not, at the
expense of the Issuers cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Issuers or a Guarantor. After payment to the Issuers or a Guarantor, as the
case may be, Holders entitled to money must look solely to the Issuers for
payment as general creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
SECTION 8.5 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise
75
prohibiting such application, then and only then the Issuers' and each
Guarantor's obligations under this Indenture, the Notes, and the Security
Documents shall be revived and reinstated as though no deposit had been made
pursuant to this Indenture until such time as the Trustee is permitted to apply
all such money or U.S. Government Obligations in accordance with this Indenture;
provided, however, that if the Issuers or any Guarantor, as the case may be,
make or makes any payment of interest on or principal of any Notes because of
the reinstatement of their obligations, the Issuers or any Guarantor, as the
case may be, shall be subrogated to the rights of the holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
The Issuers and the Guarantors, when authorized by Board Resolutions of
their respective Boards of Directors, and the Trustee may amend, waive or
supplement (or, if applicable, authorize the Collateral Agent to amend, waive or
supplement) this Indenture, the Notes, the Guarantees, any Security Document
and/or the Intercreditor Agreement without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency, provided that such
amendment or supplement does not adversely affect the rights of any Holder;
(b) to provide for uncertificated Notes in addition to or in place of
Certificated Notes, provided any Holder who requests Certificated Notes shall be
entitled to receive and keep a Certificated Note if that Holder so chooses;
(c) to comply with any requirements of the SEC under the TIA, including the
qualification of the Indenture under the TIA;
(d) to evidence the succession in accordance with Article V or X hereof of
another Person to the Issuers or a Guarantor, as the case may be, and the
assumption by any such successor of the covenants of the Issuers or a Guarantor
herein and in the Notes;
(e) to mortgage, pledge or grant a security interest in favor of the
Collateral Agent as additional security for the payment and performance of its
obligations under this Indenture, in any property or assets, including any which
are required to be mortgaged, pledged or hypothecated, or in which a security
interest is required to be granted, to the Collateral Agent pursuant to Section
11.6 hereof, any Security Document or otherwise;
(f) to evidence and provide for the acceptance of appointment hereunder by
a separate or successor Trustee with respect to the Notes and to add to or
change any of the provisions of this
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Indenture as shall be necessary to provide for or facilitate the administration
of the trust hereunder by more than one Trustee, pursuant to the requirements of
Section 7.12;
(g) to make any change that does not adversely affect the rights of any
Holder;
(h) to add or release any Guarantor strictly in accordance with another
provision of this Indenture or under the Security Documents expressly providing
for such addition or release; or
(i) to release from the Lien of the Security Documents any Released
Mortgaged Property, in each case in accordance with Section 11.3(b).
SECTION 9.2 With Consent of Holders.
Subject to Section 6.7, the Issuers, the Guarantors and the Trustee and, if
applicable, the Collateral Agent may amend or supplement this Indenture, the
Notes, the Guarantees, the Security Documents, and/or the Intercreditor
Agreement, without notice to any other holders of Notes, with the written
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding. Subject to Section 6.7, the Holders of, in the
aggregate, not less than a majority in aggregate principal amount of the
outstanding Notes affected may waive compliance by the Issuers and the
Guarantors with any provision of this Indenture, the Notes, the Guarantees, the
Security Documents, and/or the Intercreditor Agreement, without notice to any
other Holder; provided, however, (1) without the consent of each Holder
affected, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.4, may not:
(a) reduce the principal amount of, extend the fixed maturity of or alter
the redemption provisions of the Notes;
(b) change the form (including the currency thereof which shall be U.S.
dollars) in which any Notes or any interest thereon is payable or make the
principal of or interest on any Notes payable in a form or currency other than
that stated in the Notes;
(c) reduce the percentage in principal amount of outstanding Notes that
must consent to an amendment, supplement or waiver or consent to take any action
under this Indenture, any Guarantee, the Notes, the Security Documents, or the
Intercreditor Agreement;
(d) impair the right of any Holder to institute suit for the enforcement of
any payment on or with respect to the Notes or any Guarantee;
(e) waive a default in payment with respect to the Notes or any Guarantee;
(f) following the occurrence of a Change of Control or the execution of a
definitive agreement with respect to a Change of Control, amend, change or
modify the obligations of the Issuers to make and consummate a Change of Control
Offer with respect to such Change of Control or modify any of the provisions or
definitions with respect thereto;
(g) reduce or change the rate or time for payment of interest on the Notes;
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(h) except as expressly provided in Section 11.3(b), modify or change any
provision of this Indenture, the Security Documents, or the Intercreditor
Agreement affecting the ranking of the Notes or any Guarantee or the priority of
the claims of the Holders in and to the Collateral in any manner adverse to the
Holders; or
(i) release any Guarantor from any of its obligations under its Guarantee
or the Indenture other than in compliance with this Indenture;
and (2) no such modification or amendment may, without the consent of the
Holders of 95% of the aggregate principal amount of outstanding Notes, directly
or indirectly release any Lien on the Collateral except in compliance with the
terms of this Indenture (including, without limitation, Section 11.3(b)), the
Notes, the Security Documents and the Intercreditor Agreement (for so long as
such agreements relate to the Notes).
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture, the Security Documents,
the Intercreditor Agreement or the Notes shall comply with the TIA as then in
effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder of
that Note or portion of that Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to his Note or
portion of a Note, provided that the consent was not by its terms an irrevocable
consent. Any permitted revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. Notwithstanding the above, nothing in this paragraph
shall impair the right of any Holder under Section 316(b) of the TIA.
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the second
and third sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such amendment, supplement or
waiver or, provided that the consent was not by its terms an irrevocable
consent, to revoke any
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consent previously given, whether or not such Persons continue to be Holders
after such record date. Such consent shall be effective only for actions taken
within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it makes a change described in any of clauses (a) through
(i) of Section 9.2; if it makes such a change, the amendment, supplement or
waiver shall bind every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note.
SECTION 9.5 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee shall (in accordance with the specific written direction of the Issuers)
request the Holder of the Note to deliver it to the Trustee. The Trustee shall
(in accordance with the specific written direction of the Issuers) place an
appropriate notation on the Note about the changed terms and return it to the
Holder. Alternatively, if the Issuers or the Trustee so determines, the Issuers
in exchange for the Note shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms. Failure to make the appropriate notation
or issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.6 Trustee and Collateral Agent To Sign Amendments, Etc.
The Trustee and Collateral Agent shall sign any amendment, supplement or
waiver authorized pursuant to this Article IX if the amendment, supplement or
waiver does not adversely affect the rights, duties or immunities of the Trustee
or Collateral Agent, as applicable. If it does, the Trustee or Collateral Agent,
as applicable, may, but need not, sign it. In signing any amendment, supplement
or waiver, the Trustee and Collateral Agent shall be entitled to receive, if
requested, an indemnity satisfactory to it in its sole discretion and to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article IX is authorized or permitted by this Indenture.
Neither the Issuers nor any Guarantor may sign an amendment until its respective
Board of Directors approves it.
ARTICLE X
GUARANTEE
SECTION 10.1 Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally, guarantees,
to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, (i) the prompt payment and performance
of the Obligations when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise, and (ii) in case of any extension of
time of payment or renewal of any Notes or of any other Obligations, 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
stated maturity, by acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 10.4. Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
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irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the 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. Each Guarantor 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, protest, notice and all demands whatsoever and covenants
that this Guarantee will not be discharged except by complete performance of the
Obligations contained in the Notes, this Indenture and in this Guarantee. If any
Holder or the Trustee is required by any court or otherwise to return to the
Issuers, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Issuers or any Guarantor, any amount paid by
the Issuers or any Guarantor to the Trustee or such Holder, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between each Guarantor, on the one hand,
and the Holders and the Trustee, on the other hand, to the extent permitted by
applicable law, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article VI for the purposes of this Guarantee,
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 Article VI, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
SECTION 10.2 Severability.
In case any provision of this Guarantee 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 10.3 Release of a Guarantor.
If no Default or Event of Default exists or would exist under this
Indenture, concurrently with any sale or disposition of any Subsidiary Guarantor
by merger, sale of all or substantially all of its assets, liquidation or
otherwise which is in compliance with the terms of this Indenture (other than a
transaction subject to the provisions described under Section 5.1), such
Subsidiary Guarantor and each Subsidiary of such Guarantor that is also a
Subsidiary Guarantor will automatically and unconditionally be released from all
obligations under its Guarantee and any Collateral relating thereto, and Liens
of this Indenture and the Security Documents thereon, shall concurrently be
automatically and unconditionally released. A sale of assets or Capital Stock of
a Subsidiary Guarantor may constitute an Asset Sale subject to Section 4.13.
The Trustee shall execute and deliver an appropriate instrument evidencing
such release upon receipt of a request by the Issuers accompanied by an
Officers' Certificate and Opinion of Counsel certifying as to the compliance
with this Section 10.3. Any Guarantor not so released remains liable for the
full amount of principal of and interest on the Notes as provided in this
Article X.
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SECTION 10.4 Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal, state or
foreign law. To effectuate the foregoing intention, the Holders and such
Guarantor hereby irrevocably agree that the obligations of such Guarantor under
the Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 10.6, result in the obligations of such
Guarantor under the Guarantee not constituting such fraudulent transfer or
conveyance.
SECTION 10.5 Guarantors May Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the Issuers or
another Guarantor or shall prevent any sale of assets or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety, to the
Issuers or another Guarantor. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Guarantor shall no longer have any force
or effect.
(b) Except in the case in which a Subsidiary Guarantor's Guarantee is
subject to release as provided under Section 10.3, each Guarantor will not, and
the Issuers will not cause or permit any Subsidiary Guarantor to, consolidate
with or merge with or into any Person other than the Issuers or any other
Guarantor unless: (i) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) or to which such sale, lease, conveyance
or other disposition shall have been made is an entity organized and existing
under the laws of the United States or any State thereof or the District of
Columbia or, in the case of any Subsidiary Guarantor organized under the laws of
Canada or a political subdivision thereof, the laws of Canada or a political
subdivision thereof; (ii) such entity assumes by supplemental indenture all of
the obligations of the Guarantor on the Guarantee; and (iii) immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing. Any merger or consolidation of a Guarantor with and
into an Issuer (with an Issuer being the surviving entity) or another Guarantor
need only comply with clauses (b) and (d) of Section 5.1.
SECTION 10.6 Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Issuers'
obligations with respect to the Notes or any other Guarantor's obligations with
respect to the Guarantee. "Adjusted Net Assets" of such Guarantor at any date
shall mean the lesser of the amount by which (x) the fair
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value of the property of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date),
but excluding liabilities under the Guarantee, of such Guarantor at such date
and (y) the present fair saleable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date and after giving effect
to any collection from any Subsidiary of such Guarantor in respect of the
obligations of such Subsidiary under the Guarantee), excluding debt in respect
of the Guarantee of such Guarantor, as they become absolute and matured.
SECTION 10.7 Waiver of Subrogation.
Until all Obligations are paid in full, each Guarantor 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 such Guarantor's obligations under the Guarantees and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes 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 set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
the Notes shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders of the Notes, and shall forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor 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 10.7 is knowingly made in contemplation of
such benefits.
SECTION 10.8 Execution of Guarantee.
Each Guarantor hereby agrees that its Guarantee set forth in this Article X
shall remain in full force and effect notwithstanding the fact that no Guarantee
is endorsed on the Notes.
SECTION 10.9 Waiver of Stay, Extension or Usury Laws.
Each Guarantor covenants (to the extent permitted by law) that it will not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive such Guarantor from performing its Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent permitted by law) each such Guarantor hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
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SECTION 10.10 Parent Guarantor.
Notwithstanding anything in this Article X or elsewhere in this Indenture
or in the Notes to the contrary, the liability of the Parent Guarantor under the
Guarantee hereunder and the obligations with respect thereto is limited to the
Capital Stock of the Company owned by the Parent Guarantor and no recourse shall
be had to any other assets or property of the Parent Guarantor.
ARTICLE XI
SECURITY DOCUMENTS
SECTION 11.1 Collateral and Security Documents.
(a) In order to secure the due and punctual payment of the Notes, the
Pledgors have entered into the respective Security Documents to which they are
party to create the Security Interests and for related matters.
(b) Each holder of a Note, by accepting a Note, agrees to all of the terms
and provisions of the Security Documents and the Intercreditor Agreement, as the
same may be amended from time to time pursuant to the provisions of the Security
Documents, the Intercreditor Agreement, and this Indenture.
SECTION 11.2 Recording, Etc.
(a) The Company will, and will cause each other Pledgor to, take or cause
to be taken all action required or desirable to maintain, preserve and protect
the Security Interests in the Collateral granted by the Security Documents,
including, but not limited to, causing all financing statements, Mortgages,
other instruments of further assurance, including, without limitation,
continuation statements covering security interests in personal property, and
all mortgages securing purchase money obligations delivered to the Trustee or to
the trustee, mortgagee or other holder of a Permitted Lien under Section 11.4 to
be promptly recorded, registered and filed, and at all times to be kept
recorded, registered and filed, and will execute and file such financing
statements and cause to be issued and filed such continuation statements or
renewals, as the case may be, all in such manner and in such places as may be
required by law fully to preserve and protect the rights of the holders of the
Notes, the Collateral Agent and the Trustee under this Indenture and the
Security Documents to all property comprising the Collateral.
Without limiting the generality of the foregoing covenant (a), the Company
will cause each Wholly-Owned Restricted Subsidiary that is not in existence on
the date hereof to execute and deliver to the Collateral Agent (i) a supplement
to the Pledge Agreement substantially in the form of Annex 1 thereto at such
time as such Subsidiary owns or possesses property that constitutes Collateral
(as defined in the Pledge Agreement) and (ii) a joinder to the Security
Agreement substantially in the form of Exhibit 1 thereto pursuant to which such
Wholly-Owned Restricted Subsidiary shall become a party to the Security
Agreement at such time as such Subsidiary acquires or possesses property that
constitutes Collateral (as defined in the Security Agreement).
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Without limiting the generality of the foregoing covenant (a) on or
promptly after the date on which New CDSC exercises the purchase option referred
to in the RTI Asset Purchase Agreement, (x) the Company will cause New CDSC to
execute and deliver to the Collateral Agent (i) a joinder to the Security
Agreement substantially in the form of Exhibit 1 thereto pursuant to which New
CDSC shall become a party to the Security Agreement, and (ii) a Mortgage with
respect to property acquired by New CDSC that prior to the date hereof was
security for the RTI Notes under the RTI Indenture or the security documents
related thereto, (y) the Company will execute and deliver to the Collateral
Agent a supplement to the Pledge Agreement substantially in the form of Annex 1
thereto, and (z) the Company will cause to be delivered an Opinion of Counsel,
in accordance with the terms of Sections 11.2(c)(i), 11.2(c)(ii), 11.2(c)(iii)
and 13.5 hereof, as to the Security Documents (or supplements thereto) referred
to in this paragraph, without giving effect to the time for delivery of any such
opinion specified in such sections.
(b) The Company will from time to time promptly pay and discharge all
mortgage and financing and continuation statement recording and/or filing fees,
charges and taxes relating to this Indenture and the Security Documents, any
amendments thereto and any other instruments of further assurance. Without
limiting the generality of the foregoing covenant, in the event at any time the
Trustee or the Collateral Agent shall determine that additional mortgage
recording, transfer or similar taxes are required to be paid to perfect or
continue any Lien on any Real Property in an amount at least equal to the Fair
Market Value from time to time of such Real Property, the Company shall pay such
taxes promptly upon demand by the Trustee or the Collateral Agent.
Notwithstanding the foregoing, the Trustee and the Collateral Agent shall not
have any duty or obligation to ascertain whether any such taxes are required to
be paid at any time, and the determination referred to in the preceding sentence
shall only be made by the Trustee or the Collateral Agent, as the case may be,
upon receipt of written notice that such taxes are due and owing.
(c) The Company shall furnish or cause to be furnished to the Trustee and
the Collateral Agent:
(i) at the time of execution and delivery of this Indenture,
Opinion(s) of Counsel (with acceptable qualifications and exceptions) which
the Trustee and the Collateral Agent may rely upon, addressing (a) the
existence and good standing in the state of its organization of each of the
Company and the Restricted Subsidiaries, (b) the power and authority of
each of the Company and the Restricted Subsidiaries to execute, deliver and
perform the Indenture and the Security Documents to which each is a party;
and (c) the enforceability of the Indenture and the Security Documents
against each of the Company and the Restricted Subsidiaries that are
parties thereto;
(ii) at the time of execution and delivery of this Indenture, (1) with
respect to each Mortgage (other than any Mortgage that may be executed and
delivered in respect of any Mortgaged Property located in Canada), a policy
of title insurance (or commitment to issue such a policy) insuring (or
committing to insure) the Lien of such Mortgage as a valid first mortgage
Lien on the Real Property and fixtures described herein in an amount not
less than the fair market value of such Real Property and fixtures, which
policy or commitment shall (a) be issued by Title Associates Inc., as agent
for Chicago Title
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Insurance Company, (b) include such reinsurance arrangements (with
provisions for direct access) as shall be reasonably acceptable to the
Collateral Agent, (c) have been supplemented by such endorsements, or,
where such endorsements are not available at commercially reasonable
premium costs, opinion letters of special counsel, architects or other
professionals, which counsel, architects or other professionals shall be
reasonably acceptable to the Collateral Agent, as shall be reasonably
requested by the Collateral Agent (including, without limitation,
endorsements or opinion letters on matters relating to usury, first loss,
last dollar, zoning, non-imputation, public road access, contiguity (where
appropriate), cluster, survey, doing business, variable rate and so-called
comprehensive coverage over covenants and restrictions) and (d) contain
only such exceptions to title as shall be agreed to by the Collateral Agent
prior to the Issue Date with respect to such Mortgaged Property and (2)
with respect to any Mortgage executed and delivered in respect of Mortgaged
Property located in Canada, a title Opinion of Counsel in form and
substance reasonably acceptable to the Collateral Agent;
(iii) within 30 days after the Issue Date, Opinion(s) of Counsel
either (a) substantially to the effect that, in the opinion of such
counsel, this Indenture, each Security Document and all other instruments
of further assurance or assignment have been properly recorded, registered
and filed to the extent necessary to perfect the Security Interests created
by each such Security Document and reciting the details of such action, and
stating that as to the Security Interests created pursuant to each such
Security Document, such recordings, registerings and filings are the only
recordings, registerings and filings necessary to give notice thereof and
that no re-recordings, re-registerings or refilings are necessary to
maintain such notice (other than as stated in such opinion), or (b) to the
effect that, in the opinion of such counsel, no such action is necessary to
perfect such Security Interests; and
(iv) within 30 days after September 30 in each year beginning with
September 30, 2003, an Opinion of Counsel, dated as of such date, either
(a) to the effect that, in the opinion of such counsel, such action has
been taken with respect to the recordings, registerings, filings,
re-recordings, re-registerings and refilings of all financing statements,
continuation statements or other instruments of further assurance as is
necessary to maintain the Security Interests of each of the Security
Documents and reciting with respect to such Security Interests the details
of such action or referencing prior Opinions of Counsel in which such
details are given, and stating that all financing statements and
continuation statements have been executed and filed that are necessary
fully to preserve and protect the rights of the holders and the Trustee
hereunder and under each of the Security Documents with respect to the
Security Interests, or (b) to the effect that, in the opinion of such
Counsel, no such action is necessary to maintain such Security Interests.
SECTION 11.3 Certain Dispositions of Collateral Without Release.
(a) Notwithstanding the provisions of Section 4.13 (except those expressly
referred to in clauses (i), (iii) and (iv) below), Section 11.4 or Section 11.5,
as applicable, so long as no Event of Default shall have occurred and be
continuing and the Fair Market Value of the Collateral sold, exchanged or
otherwise disposed of in accordance with this Section 11.3 in no event
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exceeds $5.0 million in the aggregate during the term of the Notes, the Pledgors
may, without any requirement of release or consent by the Collateral Agent or
the Trustee:
(i) sell or otherwise dispose of any machinery, equipment,
furniture, apparatus, tools or implements, materials or supplies or other
similar property subject to the Lien of the Security Documents, which may
have become worn out or obsolete, not exceeding in value in any one
calendar year $500,000; and provided, further, that if the relevant Pledgor
shall receive any money or property in excess of such Pledgor's expenses in
connection with such sale or other disposition, to the extent it exceeds
$500,000 in any calendar year (in which case all of the money and property
so received and not just the portion in excess of $500,000 shall be subject
to this clause), forthwith upon its receipt by such Pledgor, shall be
deposited with the Collateral Agent (unless otherwise required by a Prior
Lien permitted under the applicable Security Documents) as Trust Moneys
subject to disposition as provided in Section 4.13(c);
(ii) grant rights-of-way and easements over or in respect of any Real
Property; provided, however, that such grant will not, in the reasonable
opinion of the Board of Directors of the relevant Pledgor, impair the
usefulness of such property in the conduct of the relevant Pledgor's
business and will not be prejudicial to the interests of the holders of
Notes;
(iii) abandon, terminate, cancel, release or make alterations in or
substitutions of any leases, contracts or of rights-of-way subject to the
Lien of the Security Documents; provided, however, that any altered or
substituted leases, contracts or rights-of-way shall forthwith, without
further action, be subject to the Lien of the Security Documents to the
same extent as those previously existing; and provided, further, that if
the relevant Pledgor shall receive any money or property in excess of such
Pledgor's expenses in connection with such termination, cancellation,
release, alteration or substitution as consideration or compensation for
such termination, cancellation, release, alteration or substitution, such
money or property, to the extent it exceeds $500,000 in the aggregate
through the final Maturity Date of the Notes, forthwith upon its receipt by
such Pledgor, shall be deposited with the Collateral Agent (unless
otherwise required by a Prior Lien permitted under the applicable Security
Documents) as Trust Moneys subject to disposition as provided in Section
4.13(c);
(iv) surrender or modify any franchise, license or permit subject to
the Lien of any of the Security Documents which it may own or under which
it may be operating; provided, however, that, after the surrender or
modification of any such franchise, license or permit, the relevant Pledgor
shall still, in the reasonable opinion of the Board of Directors of such
Pledgor, be entitled, under some other or without any franchise, license or
permit, to conduct its business in the territory in which it is then
operating; and provided, further, that if such Pledgor shall be entitled to
receive any money or property in excess of such Pledgor's expenses in
connection with such surrender or modification as consideration or
compensation for such surrender or modification, such money or property, to
the extent that it exceeds $500,000 in the aggregate through the final
Maturity Date of the Notes, forthwith upon its receipt by such Pledgor,
shall be deposited with the Collateral Agent (unless otherwise required by
a Prior Lien permitted under the
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applicable Security Documents) as Trust Moneys subject to disposition as
provided in Section 4.13(c);
(v) alter, repair, replace, change the location or position of and
add to its plants, structures, machinery, systems, equipment, fixtures and
appurtenances; provided, however, that no change in the location of any
such Collateral subject to the Lien of any of the Security Documents shall
be made which (1) removes such property into a jurisdiction in which any
instrument required by law to preserve the Lien of any of the Security
Documents on such property, including all necessary financing statements
and continuation statements, has not been recorded, registered or filed in
the manner required by law to preserve the Lien of any of the Security
Documents on such property, (2) does not comply with the terms of this
Indenture and the Security Documents or (3) otherwise impairs the Lien of
the Security Documents;
(vi) demolish, dismantle, tear down or scrap any Collateral, or
abandon any thereof other than land or interests in land (other than
leases), if in the good faith opinion of the Board of Directors of the
relevant Pledgor (as evidenced by a Board Resolution if it involves
Collateral having a Fair Market Value in excess of $500,000) such
Collateral is no longer useful in the conduct of such Pledgor's business,
and the Fair Market Value and utility of the Collateral as an entirety, and
the security for the Notes, will not thereby be impaired;
(vii) grant leases or subleases having a Fair Market Value not in
excess of $500,000 in respect of any Real Property in the event that the
relevant Pledgor determines, in its reasonable business judgment, that such
Real Property is no longer useful in the conduct of such Pledgor's business
and that such lease or sublease would not be reasonably likely to have an
adverse affect on the value of the property subject thereto; provided,
however, that any such lease or sublease shall by its terms be subject and
subordinate to the Lien, and otherwise comply with the provisions, of the
Mortgage affecting such Real Property.
(b) Notwithstanding the provisions of clause (a) of this Section 11.3,
Section 11.4 or 11.5, as applicable, so long as no Event of Default shall have
occurred and be continuing, and subject to the applicable provisions of Section
4.13, the Pledgors may, without any requirement or consent by the Collateral
Agent or the Trustee, sell or otherwise dispose of the Released Mortgaged
Property; provided, however, that (1) in the reasonable opinion of the Board of
Directors of such Pledgor, any such release could not reasonably be expected to
have an adverse effect on the practical utilization of the other Collateral, if
any, used in connection with or located adjacent to such Released Mortgaged
Property, (2) all representations and warranties set forth in any Security
Document (including, without limitation, those specifically relating to such
release) shall continue to be true and correct in all material respects as of
the date of such release, (3) such Pledgor shall comply with Section 11.4(f) to
the extent the same is applicable to such release, and (4) the Fair Market Value
of all of such the Released Mortgaged Property does not exceed in the aggregate
the lesser of (x) $500,000 and (y) 1% of the aggregate principal amount of the
outstanding Notes.
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(c) in the event that a Pledgor has sold, exchanged, or otherwise disposed
of or proposes to sell, exchange or otherwise dispose of any portion of the
Collateral which under the provisions of this Section 11.3 may be sold,
exchanged or otherwise disposed of by such Pledgor without any release or
consent of the Trustee or the Collateral Agent, and such Pledgor requests the
Trustee or the Collateral Agent to furnish a written disclaimer, release or
quitclaim of any interest in such property under any of the Security Documents,
the Trustee and the Collateral Agent shall promptly execute such an instrument
(in recordable form, where appropriate) upon delivery to the Trustee and the
Collateral Agent of (i) an Officers' Certificate by such Pledgor reciting the
sale, exchange or other disposition made or proposed to be made and describing
in reasonable detail the property affected thereby, and stating that such
property is property which by the provisions of this Section 11.3 may be sold,
exchanged or otherwise disposed of or dealt with by such Pledgor without any
release or consent of the Trustee or the Collateral Agent and (ii) an Opinion of
Counsel stating that the sale, exchange or other disposition made or proposed to
be made was duly taken by such Pledgor in conformity with a designated
subsection of Section 11.3(a) or Section 11.3(b), as applicable, and that the
execution of such written disclaimer, release or quitclaim is appropriate under
this Section 11.3.
Any disposition of Collateral made in strict compliance with the provisions
of this Section 11.3 shall be deemed not to impair the Security Interests in
contravention of the provisions of this Indenture.
SECTION 11.4 Release of Collateral.
In addition to their rights under Section 11.3, the Pledgors shall have the
right, at any time and from time to time, to sell, exchange or otherwise dispose
of any of the Collateral (excluding Trust Moneys constituting Net Cash Proceeds
from an Asset Sale of Collateral or Net Cash Proceeds from another disposition
of Collateral), upon compliance with the requirements and conditions of this
Section 11.4 and Section 4.13, and the Trustee shall promptly instruct the
Collateral Agent to promptly release the same from the Lien of any of the
Security Documents upon receipt by the Trustee and the Collateral Agent (other
than in the case of Section 11.4(d) below) of a Release Notice requesting such
release and describing the property to be so released, together with delivery of
the following:
(a) If the Collateral to be released has a book value of at least $2.0
million, a Board Resolution of the applicable Pledgor requesting such release
and authorizing an application to the Trustee and the Collateral Agent
therefore.
(b) An Officers' Certificate of the applicable Pledgor dated not more than
30 days prior to the date of the application for such release, in each case
stating in substance as follows:
(i) that, in the opinion of the signers, the security afforded by the
Security Documents will not be impaired by such release in contravention of
the provisions of the Indenture, and that (1) other property is to be
substituted as Substitute Collateral in accordance with the provisions of
Section 11.5 or (2) the Collateral to be released is being released in
connection with an Asset Sale of such Collateral and the Net Cash Proceeds
from such Asset Sale of Collateral are being delivered to the Collateral
Agent
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(as required by Section 4.13) in accordance with, and to the extent
required by, the provisions of clause (ii) of Section 11.4(d);
(ii) that the applicable Pledgor has either disposed of or will
dispose of the Collateral so to be released in compliance with all
applicable terms of this Indenture and for a consideration representing, in
the opinion of the signers, its Fair Market Value, which consideration may,
subject to any other provision of this Indenture (including any
requirements for an Asset Sale of Collateral under Section 4.13), consist
of any one or more of the following: (A) cash or Cash Equivalents, and (B)
any other property or assets that in each case, upon acquisition thereof by
the applicable Pledgor, would be subject to the Lien of the Security
Documents (except as provided in clause (ii) of Section 11.4(d)), and
subject to no Lien other than Liens which, under the applicable provisions
of the Security Documents and Intercreditor Agreement relating thereto, are
permitted to be superior to the Lien of the Collateral Agent for the
benefit of the Trustee and the holders of the Notes therein, all of such
consideration to be briefly described in the certificate;
(iii) that no Default or Event of Default has occurred and is
continuing;
(iv) the Fair Market Value, in the opinion of the signers, of the
property to be released at the date of such application for release;
provided that it shall not be necessary under this clause (iv) to state the
Fair Market Value of any property whose Fair Market Value is certified in a
certificate of an Independent Appraiser or Independent Financial Advisor
under Section 11.4(c); and
(v) that all conditions precedent herein, in the Security Documents
and in the Intercreditor Agreement relating to the release of the
Collateral in question have been complied with.
(c) If the Collateral to be released is valued at $2.0 million or more, a
certificate of an Independent Appraiser or, if such property consists of
securities, a certificate of an Independent Financial Advisor stating (1) the
then Fair Market Value, in the opinion of the signer, of the property to be
released; and (2) that such release, in the opinion of the signer, will not
impair the Security Interests under any of the Security Documents in
contravention of their terms.
(d) Either (i) possession of the Substitute Collateral (if and to the
extent the Substitute Collateral consists of property the possession of which is
necessary for the perfection by the Collateral Agent of a Lien thereon) and all
documents required by the provisions of Section 11.5 or (ii) the Net Cash
Proceeds from any Asset Sale involving Collateral (excluding any Net Cash
Proceeds from any Asset Sale which are not required, or cannot be required
through the passage of time or otherwise, to be used to redeem Notes under
Section 4.13), or, if the Collateral so to be released is subject to a Prior
Lien permitted by the Security Documents, a certificate of the trustee,
mortgagee or other holder of such Prior Lien permitted by the Security Documents
that it has received such Net Cash Proceeds and has been irrevocably authorized
by the Company to pay over to the Collateral Agent any balance of such Net Cash
Proceeds remaining after the discharge of such Indebtedness secured by such
Prior Lien permitted by the Security Documents.
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(e) One or more Opinions of Counsel which, when considered collectively,
shall be substantially to the effect (i) that any obligation included in the
consideration for any property so to be released and to be received by the
Collateral Agent or the Trustee, as the case may be, pursuant to Section 11.4(d)
is a valid and binding obligation enforceable in accordance with its terms,
subject to such customary exceptions regarding equitable principles and
creditors' rights generally as shall be reasonably acceptable to the Trustee in
its sole judgment, and is effectively pledged under the Security Documents, (ii)
either (x) that such instruments of conveyance, assignment and transfer as have
been or are then delivered to the Collateral Agent are sufficient to subject to
the Lien of the Security Documents all the right, title and interest of the
applicable Pledgor in and to any property, other than cash, Cash Equivalents and
obligations, that is included in the consideration for the Collateral so to be
released and to be received by the Collateral Agent or the Trustee, as the case
may be, pursuant to Section 11.4(d), subject to no Lien other than Liens of the
type permitted on Collateral under the provisions of Section 4.11 or (y) that no
instruments of conveyance, assignment or transfer are necessary for such
purpose, (iii) that the applicable Pledgor has corporate or other equivalent
power to own all property included in the consideration for such release, (iv)
in case any part of the money or obligations referred to in Section 11.4(d) has
been deposited with a trustee or other holder of any Prior Lien permitted by the
Security Documents, that the Collateral to be released, or a specified portion
thereof, is or immediately before such release was subject to such Prior Lien
and that such deposit is required by such Prior Lien and (v) that all conditions
precedent provided in this Indenture, the Security Documents and the
Intercreditor Agreement relating to the release of such Collateral have been
complied with; provided that in the case of clauses (i) above, such Opinion of
Counsel may be subject to such qualifications as to Liens which may be imposed
as a matter of law or such assumptions as to the actual knowledge of any person
as may be reasonably acceptable to the Trustee and the Collateral Agent.
(f) If the Collateral to be released is only a portion of a discrete parcel
of Real Property, evidence that a title company shall have committed to issue an
endorsement to the title insurance policy relating to the affected Mortgaged
Property (or, if the parcel to be released is located in Canada, a title Opinion
of Counsel in form and substance acceptable to the Collateral Agent) confirming
that after such release, the perfected Lien of the applicable Mortgage and the
priority thereof continues unimpaired upon the remaining Mortgaged Property
subject only to those Liens permitted by the applicable Mortgage.
In connection with any release, the applicable Pledgor shall (i) execute,
deliver and record or file and obtain such instruments as the Trustee or the
Collateral Agent may reasonably require, including, without limitation,
amendments to the Security Documents and (ii) deliver to the Trustee and the
Collateral Agent such evidence of the satisfaction of the applicable provisions
of this Indenture, the Intercreditor Agreement and the Security Documents as the
Trustee or the Collateral Agent may reasonably require.
The applicable Pledgor shall exercise its rights under this Section 11.4 by
delivery to the Trustee and the Collateral Agent of a notice (each, a "Release
Notice"), which shall (i) refer to this Section 11.4, (ii) contain all the
resolutions, certificates, opinions, title insurance endorsements, Surveys and
such other documents and statements as are required pursuant to this Section
11.4 (including, without limitation, the Officers' Certificate required pursuant
to Section 11.4(b)), (iii) describe with particularity the items of property
proposed to be covered by the
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release and (iv) be accompanied by a counterpart of the instruments proposed to
give effect to the release fully executed and acknowledged (if applicable) by
all parties thereto other than the Collateral Agent and the Trustee and in form
for execution by the Collateral Agent and the Trustee. Upon such compliance, the
applicable Pledgor shall direct the Collateral Agent in writing to execute,
acknowledge (if applicable) and deliver to such Pledgor such counterpart within
10 Business Days after receipt by the Trustee and the Collateral Agent of a
Release Notice and the satisfaction of the requirements of this Section 11.4.
In case an Event of Default shall have occurred and be continuing, the
Company and the other Pledgors, while in possession of the Collateral (other
than cash, Cash Equivalents, Notes and other personal property held by, or
required to be deposited or pledged with, the Collateral Agent or the Trustee
hereunder or under any Security Document or with the trustee, mortgagee or other
holder of a Prior Lien permitted by the Security Documents), may do any of the
things enumerated in this Section 11.4 only if the Trustee or the holders of a
majority in aggregate principal amount of the Notes outstanding, by appropriate
action of such holders, shall consent to such action, in which event any
certificate filed under this Section 11.4 shall omit the statement to the effect
that no Event of Default has occurred and is continuing.
All cash or Cash Equivalents received by the Collateral Agent pursuant to
this Section 11.4 shall be held by the Collateral Agent for the benefit of the
Trustee and the holders of the Notes, as Trust Moneys subject to application as
provided in this Section 11.4 and Section 4.13(c) (in the case of any Net Cash
Proceeds from Asset Sales of Collateral) and the Intercreditor Agreement or in
Article XII. All purchase money and other obligations received by the Collateral
Agent pursuant to this Section 11.4 shall be held by the Collateral Agent for
the benefit of the Trustee and the holders of the Notes, as Collateral.
Any releases of Collateral made in strict compliance with the provisions of
this Section 11.4 shall be deemed not to impair the Security Interests created
by the Security Documents in favor of the Collateral Agent on behalf of the
Trustee for the benefit of the holders of the Notes, in contravention of the
provisions of this Indenture.
SECTION 11.5 Substitute Collateral.
The Company or any other Pledgor may, at its option, obtain a release of
any of the Collateral (including any Trust Moneys (other than Trust Moneys
representing Net Cash Proceeds which are required to be used to redeem Notes
pursuant to Section 4.13) but excluding the Capital Stock of the Company or of
any of the Restricted Subsidiaries) by subjecting other property related to or
used in the principal businesses of the Company and the Restricted Subsidiaries,
if such substitute property (the "Substitute Collateral") has a Fair Market
Value equal to or greater than the Collateral to be released, to the Lien of any
Security Document or a similar instrument in place of and in exchange for any of
the Collateral to be released upon presentation to the Collateral Agent and the
Trustee of, among other things, the following documents:
(a) an application of the applicable Pledgor requesting such substitution
of Substitute Collateral and describing the property to be so released and the
property to be substituted therefore;
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(b) the resolutions, certificates, opinions and other statements required
by the provisions of Section 11.4, as applicable, in respect of any of the
Collateral to be released;
(c) an Officers' Certificate of the applicable Pledgor also signed by an
Independent Appraiser or, if the property to be released consists of securities,
by an Independent Financial Advisor stating in substance the Fair Market Value,
in the opinion of the signers, of the Substitute Collateral;
(d) an instrument or instruments in recordable form sufficient for the Lien
of the Security Documents to cover the Substitute Collateral;
(e) in the case of Substitute Collateral which constitutes personal
property:
(1) an Opinion of Counsel stating that the Lien of the Security
Documents constitutes a direct and valid and perfected Lien on
such Substitute Collateral;
(2) an Officers' Certificate of the Company stating that any specific
exceptions to such Lien are Liens of the character which were
permitted to be Prior Liens under the Security Documents with
respect to the Collateral being replaced by such Substitute
Collateral; and
(3) evidence of payment or a closing statement indicating payments to
be made by the applicable Pledgor of all filing fees, recording
charges, transfer taxes and other costs and expenses, including
reasonable legal fees and disbursements of counsel for the
Collateral Agent and the Trustee (and any local counsel) that may
be incurred to validly and effectively subject such personal
property to the Lien of any applicable Security Document to
perfect such Liens;
(f) in the case of Substitute Collateral which constitutes Real Property:
(1) a policy of title insurance (or a commitment to issue title
insurance) insuring that the Lien of the Security Documents
constitutes a direct and valid and perfected mortgage Lien on
such Substitute Collateral (subject to no Liens other than Liens
which were permitted under the Security Documents with respect to
the Collateral being replaced by such Substitute Collateral) in
an aggregate amount equal to the Fair Market Value of such
Substitute Collateral and containing such endorsements and other
opinions as contemplated by Section 11.2(b)(ii) of this Indenture
or, in the event such Substitute Collateral is located in Canada,
a title Opinion of Counsel acceptable in form and substance to
the Collateral Agent;
(2) an Officers' Certificate of the Company stating that any specific
exceptions to such title insurance or title opinion are Liens
permitted to be on Collateral pursuant to the provisions of
Section 4.11 or Prior Liens;
(3) a Survey with respect to such Real Property;
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(4) a policy or certificate of insurance as required by any Mortgage
relating to such Real Property, which policy or certificate shall
bear mortgagee endorsements of the character required by such
Mortgage;
(5) evidence of payment or a closing statement indicating payments to
be made by the applicable Pledgor of all title premiums,
recording charges, transfer taxes and other costs and expenses
including reasonable legal fees and disbursements of counsel for
the Collateral Agent and the Trustee (and any local counsel) that
may be incurred to validly and effectively subject such Real
Property to the Lien of any applicable Security Document to
perfect such Lien;
(6) copies of all Leases (as defined in the Mortgages), all of which
Leases shall be in conformance with any applicable provisions of
the Security Documents;
(7) an Officers' Certificate of the Company stating that there has
been issued and is in effect a valid and proper certificate of
occupancy or local or foreign equivalent, if required by the
local or foreign codes or ordinances for the use then being made
of such Real Property and that there is not outstanding any
citation, violation or similar notice indicating that such Real
Property contains conditions which are not in compliance with
local or foreign codes or ordinances relating to building or fire
safety or structural soundness; and
(8) such consents, approvals, amendments, supplements, estoppels,
tenant subordination agreements or other instruments as shall be
necessary in order for the owner or holder of the fee interest to
grant the Lien contemplated by the Mortgage with respect to such
Real Property; and
(g) Opinion(s) of Counsel in each jurisdiction in which such Substitute
Collateral is located substantially in the form of the local counsel opinions
delivered on the Issue Date and otherwise in form and substance satisfactory to
the Trustee and the Collateral Agent with respect to the documents executed and
delivered by the applicable Pledgor and the Substitute Collateral encumbered
thereby.
SECTION 11.6 Eminent Domain and Other Governmental Takings.
Should any of the Collateral be taken by eminent domain or be sold pursuant
to the exercise by the United States of America or any state, municipality or
other domestic or foreign governmental authority of any right which it may then
have to purchase, or to designate a purchaser or to order a sale of, all or any
part of the Collateral, the Trustee shall cause the Collateral Agent to release
the property so taken or purchased, but only upon receipt by the Trustee and the
Collateral Agent of the following:
(a) an Officers' Certificate of the Company stating that such property has
been taken by eminent domain and the amount of the award therefore, or that such
property has been sold pursuant to a right vested in the United States of
America, or a state, municipality or other
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domestic or foreign governmental authority to purchase, or to designate a
purchaser, or order a sale of such property and the amount of the proceeds of
such sale, and that all conditions precedent herein provided for relating to
such release have been complied with;
(b) the award for such property or the proceeds of such sale (net of the
costs of obtaining such award or proceeds, including reasonable fees of
counsel), to be held as Trust Moneys subject to the disposition thereof pursuant
to Article XII; provided, however, that, in lieu of all or any part of such
award or proceeds, the applicable Pledgor shall have the right to deliver to the
Trustee and the Collateral Agent a certificate of the trustee, mortgagee or
other holder of a Prior Lien on all or any part of the property to be released,
stating that such award or proceeds (net of the costs of obtaining such award or
proceeds, including reasonable fees of counsel), or a specified portion thereof,
has been deposited with such trustee, mortgagee or other holder pursuant to the
requirements of such Prior Lien, in which case the balance of the award, if any,
shall be delivered to the Collateral Agent; and
(c) an Opinion of Counsel substantially to the effect:
(1) that such property has been taken by eminent domain, or has been
sold pursuant to the exercise of a right vested in the United
States of America or a state, municipality or other domestic or
foreign governmental authority to purchase, or to designate a
purchaser or order a sale of, such property;
(2) in the case of any taking by eminent domain, that the award for
the property so taken has become final or that the Board of
Directors of the applicable Pledgor has determined that an appeal
from such award is not advisable in the interests of the Company
or any other Pledgor, as applicable, or the holders of the Notes;
(3) in the case of any such sale, that the amount of the proceeds of
the property so sold is not less than the amount to which the
applicable Pledgor is legally entitled under the terms of such
right to purchase or designate a purchaser, or under the order or
orders directing such sale, as the case may be; and
(4) that the instrument or the instruments and the award or proceeds
of such sale which have been or are therewith delivered to and
deposited with the Trustee and/or the Collateral Agent conform in
all material respects to the requirements of this Indenture and
the applicable Security Documents and that, upon the basis of
such application, the Collateral Agent and the Trustee are
permitted by the terms hereof and of the Security Documents to
execute and deliver the release requested, and that all
conditions precedent herein provided for relating to such release
have been complied with.
In any proceedings for the taking or purchase or sale of any part of the
Collateral, by eminent domain or by virtue of any such right to purchase or
designate a purchaser or to order a
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sale, the Collateral Agent and the Trustee f may be represented by counsel who
may be counsel for the Company.
All cash or Cash Equivalents received by the Collateral Agent pursuant to
this Section 11.6 shall be held by the Collateral Agent as Trust Moneys under
Article XII subject to application as therein provided. All purchase money and
other obligations received by the Collateral Agent pursuant to this Section 11.6
shall be held by the Collateral Agent as Collateral subject to application as
provided in Section 11.11.
SECTION 11.7 Trust Indenture Act Requirements.
The release of any Collateral, whether pursuant to this Article XI or
Article XII, from the Lien of any of the Security Documents or the release of,
in whole or in part, the Liens created by any of the Security Documents, will
not be deemed to impair the Security Interests 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 hereof.
The Trustee and each of the holders of the Notes acknowledge that a release of
Collateral or Liens strictly in accordance with the terms of the Security
Documents and the terms hereof will not be deemed for any purpose to be an
impairment of the Security Interests in contravention of the terms of this
Indenture. To the extent applicable, without limitation, the Pledgors and each
obligor on the Notes shall cause TIA Section 314(d) relating to the release of
property or Notes from the Liens hereof and of the Security Documents to be
complied with. Any certificate or opinion required by TIA Section 314(d) may be
made by an officer of the appropriate Pledgor, except in cases in which TIA
Section 314(d) requires that such certificate or opinion be made by an
independent person.
SECTION 11.8 Suits To Protect the Collateral.
Subject to the provisions of the Security Documents and the Intercreditor
Agreement and the provisions of Section 6.6 as they relate to the rights of the
Holders to take certain actions otherwise reserved to the Trustee, the Trustee
and the Collateral Agent shall have the power to institute and to maintain such
suits and proceedings as they may deem expedient to prevent any impairment of
the Collateral by any acts which may be unlawful or in violation of any of the
Security Documents or this Indenture, and such suits and proceedings as the
Trustee and the Collateral Agent may deem expedient to preserve or protect their
interests and the interests of the Trustee and the holders of the Notes in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the Security Interests or be prejudicial to the interests of the
holders of the Notes, the Trustee or the Collateral Agent).
SECTION 11.9 Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to
be released hereunder be bound to ascertain the authority of the Trustee or
Collateral Agent to execute the release or to inquire as to the satisfaction of
any conditions required by the provisions hereof for
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the exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article XI to be sold be
under obligation to ascertain or inquire into the authority of the Company or
any other Pledgor, as applicable, to make any such sale or other transfer.
SECTION 11.10 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article XI upon the Company or
any other Pledgor, as applicable, with respect to the release, sale or other
disposition of such property may be exercised by such receiver or trustee, and
an instrument signed by such receiver or trustee shall be deemed the equivalent
of any similar instrument of the Company or any other Pledgor, as applicable, or
of any officer or officers thereof required by the provisions of this Article
XI.
SECTION 11.11 Disposition of Obligations Received.
All purchase money or other obligations received by the Collateral Agent or
the Trustee under this Article XI shall be held by the Collateral Agent or the
Trustee, as the case may be, as a part of the Collateral. Upon payment in cash
or Cash Equivalents by or on behalf of the Company or the obligor thereof to the
Collateral Agent or the Trustee of the entire unpaid principal amount of any
such obligation, to the extent not constituting Net Cash Proceeds from an Asset
Sale of Collateral or other disposition of Collateral which are required to be
used to redeem Notes pursuant to Section 4.13(c), the Trustee shall promptly
release and transfer, or cause the Collateral Agent to promptly release and
transfer, such obligation and any mortgage securing the same upon receipt of any
documentation that the Trustee and Collateral Agent may reasonably require.
Any cash or Cash Equivalents received by the Collateral Agent or the
Trustee in respect of the principal of any such obligations shall be held by the
Collateral Agent or the Trustee, as the case may be, as Trust Moneys under
Article XII subject to application as therein provided. Unless and until the
Notes are accelerated, pursuant to Section 6.2, (i) all interest and other
income on any such obligations that do not constitute Net Cash Proceeds from an
Asset Sale of Collateral or other disposition of Collateral which are required
to be used to redeem Notes pursuant to Section 4.13(c), when received by the
Collateral Agent or the Trustee, shall be paid to the Company from time to time
in accordance with Section 12.8 and (ii) all interest and other income on any
such obligations that constitute Net Cash Proceeds from an Asset Sale of
Collateral or other disposition of Collateral which are required to be used to
redeem Notes pursuant to Section 4.13(c), when received by the Collateral Agent
or the Trustee, shall be used to redeem Notes pursuant to Section 4.13(c). If
the Notes have been accelerated pursuant to Section 6.2, any such interest or
other income not theretofore paid, when collected by the Collateral Agent or the
Trustee, shall be applied by the Collateral Agent or the Trustee, as the case
may be, in accordance with Section 6.10.
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SECTION 11.12 Determinations Relating to Collateral.
In the event (i) the Collateral Agent or the Trustee shall receive any
written request from the Company or any other Pledgor under any Security
Document for consent or approval with respect to any matter or thing relating to
any Collateral or the Company's or any other Pledgor's obligations with respect
thereto or (ii) there shall be due to or from the Collateral Agent or the
Trustee under the provisions of any Security Document any performance or the
delivery of any instrument or (iii) the Collateral Agent or the Trustee shall
become aware of any nonperformance by the Company or any other Pledgor of any
covenant or any breach of any representation or warranty of the Company or any
other Pledgor set forth in any Security Document, then, in each such event, the
Collateral Agent and the Trustee shall be entitled to hire experts, consultants,
agents and attorneys to advise the Collateral Agent and the Trustee on the
manner in which the Collateral Agent or the Trustee, as the case may be, should
respond to such request or render any requested performance or response to such
nonperformance or breach (the reasonable expenses of which shall be reimbursed
to the Collateral Agent and the Trustee pursuant to Section 7.7). The Collateral
Agent shall be fully protected in the taking of any action recommended or
approved by any such expert, consultant, agent or attorney or agreed to by
Holders of a majority in aggregate principal amount of the outstanding Notes
pursuant to Section 6.5.
SECTION 11.13 Renewal and Refunding.
Nothing in this Article XI shall prevent (a) the renewal or extension,
without impairment of the Security Interests, at the same or at a lower or
higher rate of interest, of any of the obligations or Indebtedness of any Person
included in the Collateral or (b) the issue in substitution for any such
obligations or Indebtedness of other obligations or Indebtedness of such Person
for equivalent amounts and of substantially equal or superior rank as to
security, if any; provided, however, that every such obligation or Indebtedness
as so renewed or extended shall continue to be subject to the Lien of the
Security Documents and every substituted obligation of Indebtedness and the
evidence thereof shall be deposited and pledged with the Collateral Agent.
SECTION 11.14 Release upon Termination of the Company's Obligations.
In the event that the Company delivers an Officers' Certificate certifying
that its obligations under this Indenture have been satisfied and discharged by
complying with the provisions of Article VIII, the Collateral Agent and the
Trustee shall (i) execute and deliver such releases, termination statements and
other instruments (in recordable form, where appropriate) as the Company or any
other Pledgor, as applicable, may reasonably request evidencing the termination
of the Security Interests created by the Security Documents and (ii) thereafter
no longer be deemed to hold the Security Interests for the benefit of the
Trustee and the holders of the Notes.
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ARTICLE XII
APPLICATION OF TRUST MONEYS
SECTION 12.1 Trust Moneys.
All Trust Moneys shall be held by the Collateral Agent or the Trustee, as
the case may be, for the benefit of the Trustee and the holders of Notes as a
part of the Collateral in accordance with the provisions of this Indenture and
the Intercreditor Agreement and, upon any entry upon or sale or other
disposition of the Collateral or any part thereof pursuant to any of the
Security Documents, said Trust Moneys shall be applied in accordance with
Section 6.10 and the Intercreditor Agreement but, prior to any such entry, sale
or other disposition, all or any part of the Trust Moneys may be withdrawn, and
shall be released, paid or applied by the Collateral Agent and the Trustee, from
time to time as provided in Sections 12.2 through 12.6, inclusive, and the
Intercreditor Agreement.
SECTION 12.2 Retirement of Notes.
The Trustee shall apply Trust Moneys from time to time to the payment of
the principal of and interest on any Notes, when due or to the redemption
thereof or the purchase thereof upon tender or at private sale or upon any
exchange or in any one or more of such ways, as the Company shall request in
writing, upon receipt by the Trustee of the following:
(a) Board Resolutions of the Company directing the application pursuant to
this Section 12.2 of a specified amount of Trust Moneys and, in case any such
moneys are to be applied to payment, designating the Notes so to be paid and, in
case any such moneys are to be applied to the purchase of Notes, prescribing the
method of purchase, the price or prices to be paid and the maximum principal
amount of Notes to be purchased and any other provisions of this Indenture
governing such purchase;
(b) cash in the maximum amount of the accrued interest, if any, required to
be paid in connection with any such purchase, which cash shall be held by the
Trustee in trust for such purpose;
(c) an Officers' Certificate of the Company, dated not more than five
Business Days prior to the date of the relevant application stating
(i) that no Default or Event of Default exists unless such Default or
Event of Default would be cured thereby; and
(ii) that all conditions precedent and covenants herein provided for
relating to such application of Trust Moneys have been complied with; and
(d) an Opinion of Counsel stating that the documents and the cash or Cash
Equivalents, if any, which have been or are therewith delivered to and deposited
with the Trustee conform in all material respects to the requirements of this
Indenture and that all conditions precedent herein provided for relating to such
application of Trust Moneys have been complied with.
98
Upon compliance with the foregoing provisions of this Section, the Trustee
shall apply Trust Moneys as directed and specified by such Board Resolution, up
to, but not exceeding, the principal amount of the Notes so paid or purchased,
using the cash deposited pursuant to paragraph (b) of this Section 12.2, to the
extent necessary, to pay any accrued interest required in connection with such
purchase.
A Board Resolution expressed to be irrevocable directing the application of
Trust Moneys under this Section 12.2 to the payment of the principal of
particular Notes shall for all purposes of this Indenture be deemed the
equivalent of the deposit with the Trustee in trust for such purpose of money
equal to the amount of such Trust Moneys then held by the Trustee and specified
in such resolution. Such Trust Moneys and any cash deposited with the Trustee
pursuant to paragraph (b) of this Section 12.2 for the payment of accrued
interest shall not, after compliance with the foregoing provisions of this
Section, be deemed to be part of the Collateral or Trust Moneys.
SECTION 12.3 Withdrawals of Insurance Proceeds and Condemnation Awards.
To the extent that any Trust Moneys consist of either (a) the proceeds of
insurance upon any part of the Collateral or (b) any award for or the proceeds
of any of the Collateral being taken by eminent domain or sold pursuant to the
exercise by the United States of America or any state, municipality or other
governmental authority of any right which it may then have to purchase, or to
designate a purchaser or to order a sale of any part of the Collateral, such
Trust Moneys may be withdrawn by the Company or any Guarantor, as applicable,
and shall be paid by the Collateral Agent upon a request by the Company or the
applicable Guarantor by the proper officer or officers of the Company or the
applicable Guarantor to reimburse the Company or the applicable Guarantor for
expenditures made, or to pay costs incurred, by the Company or the applicable
Guarantor to repair, rebuild or replace the property destroyed, damaged or
taken, upon receipt by the Trustee and the Collateral Agent of the following:
(a) an Officers' Certificate of the Company or the applicable Guarantor
dated not more than 30 days prior to the date of the application for the
withdrawal and payment of such Trust Moneys and (if required by the TIA) signed
also, in the case of the following clauses (i), (iv) and (vi), by an Independent
Appraiser or Independent Financial Advisor, setting forth:
(i) that expenditures have been made, or costs incurred, by the
Company or the applicable Guarantor in a specified amount for the purpose
of making certain repairs, rebuildings and replacements of the Collateral,
which shall be briefly described, and stating the Fair Market Value thereof
to the Company or the applicable Guarantor at the date of the acquisition
thereof by the Company or the applicable Guarantor, except that it shall
not be necessary under this clause (i) to state the fair value of any such
repairs, rebuildings or replacements that are separately described pursuant
to clause (vi) of this paragraph (a) and whose Fair Market Value is stated
in the Independent Appraiser's or Independent Financial Advisor's
certificate under paragraph (b) of this Section 12.3;
(ii) that no part of such expenditures in any previous or then pending
application, has been or is being made the basis for the withdrawal of any
Trust Moneys pursuant to this Section 12.3;
99
(iii) that no part of such expenditures or costs has been paid out of
either the proceeds of insurance upon any part of the Collateral not
required to be paid to the Collateral Agent under the relevant Mortgage or
any award for or the proceeds from any of the Collateral being taken not
required to be paid to the Collateral Agent under Section 11.5, as the case
may be;
(iv) that there is no outstanding Indebtedness, other than costs for
which payment is being requested, known to the Company or the applicable
Guarantor, after due inquiry, for the purchase price or construction of
such repairs, rebuildings or replacements, or for labor, wages, materials
or supplies in connection with the making thereof, which, if unpaid, might
become the basis of a vendor's, mechanics', laborers' materialmen's,
statutory or other similar Lien upon any of such repairs, rebuildings or
replacement, which Lien might, in the opinion of the signers of such
certificate, materially impair the security afforded by such repairs,
rebuildings or replacement;
(v) that the property to be repaired, rebuilt or replaced is
necessary or desirable in the conduct of the Company's or the applicable
Guarantor's business;
(vi) whether any part of such repairs, rebuildings or replacements
within six months before the date of acquisition thereof by the Company or
the applicable Guarantor, has been used or operated by others than the
Company or the applicable Guarantor in a business similar to that in which
such property has been or is to be used or operated by the Company or the
applicable Guarantor, and whether the Fair Market Value to the Company or
the applicable Guarantor, at the date of such acquisition, of such part of
such repairs, rebuildings or replacement is at least $250,000 and 1% of the
aggregate principal amount of the outstanding Notes; and, if all of such
facts are present, such part of said repairs, rebuildings or replacements
shall be separately described, and it shall be stated that an Independent
Appraiser's or Independent Financial Advisor's certificate as to the Fair
Market Value to the Company or the applicable Guarantor of such separately
described repairs, rebuildings or replacements will be furnished under
paragraph (b) of this Section 12.3;
(vii) that no Default or Event of Default shall have occurred and be
continuing; and
(viii) that all conditions precedent herein provided for relating to
such withdrawal and payment have been complied with.
(b) In case any part of such repairs, rebuildings or replacements is
separately described pursuant to the foregoing clause (vi) of paragraph (a) of
this Section 12.3, a certificate of an Independent Appraiser or Independent
Financial Advisor (if required by the TIA) stating the Fair Market Value to the
Company or the applicable Guarantor, in such Independent Appraiser's or
Independent Financial Advisor's opinion, of such separately described repairs,
rebuildings or replacements at the date of the acquisition thereof by the
Company or the applicable Guarantor.
(c) (i) In case any part of such repairs, rebuildings or replacements
constitutes Real Property:
100
(1) with respect to any such repairs, rebuildings or
replacements that are not encompassed within or are
not erected upon Mortgaged Property, an instrument or
instruments in recordable form sufficient for the
Lien of this Indenture and any Mortgage to cover such
repairs, rebuildings or replacements which, if such
repairs, rebuildings or replacements include
leasehold or easement interests, shall include normal
and customary provisions with respect thereto and
evidence of the filing of all such documents as may
be necessary to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue
title insurance) insuring that the Lien of this
Indenture and any Mortgage (other than the Mortgage
executed and delivered in respect of the Mortgaged
Property located in Canada) constitutes a direct and
valid and perfected mortgage Lien on such repairs,
rebuildings or replacements (subject to no Prior
Liens other than Prior Liens which were permitted
with respect to the Collateral repaired, rebuilt or
replaced) in an aggregate amount equal to the Fair
Market Value of such repairs, rebuildings or
replacements, together with such endorsements and
other opinions as are contemplated by Section
11.2(b)(ii), or with respect to any such repairs,
rebuildings or replacements that are encompassed
within or are erected upon Mortgaged Property (other
than Mortgaged Property located in Canada) an
endorsement to the title insurance policy issued
pursuant to Section 11.2(b)(ii) regarding the
affected Mortgaged Property confirming that such
repairs, rebuildings or replacements are encumbered
by the Lien of the applicable Mortgage (subject to no
Prior Liens other than Prior Liens which were
permitted under the Mortgage with respect to the
Collateral repaired, rebuilt or replaced) or, with
respect to any such repairs, rebuildings or
replacements that are encompassed within or erected
upon Mortgaged Property located in Canada, a title
Opinion of Counsel in form and substance satisfactory
to the Trustee and the Collateral Agent;
(3) in the event such repairs, rebuildings or
replacements have a Fair Market Value in excess of
$250,000, a Survey with respect thereto; and
(4) evidence of payment or a closing statement indicating
payments to be made by the Company or the applicable
Guarantor of all title premiums, recording charges,
transfer taxes and other costs and expenses,
including reasonable legal fees and disbursements of
counsel for the Collateral Agent (and any local
counsel), that may be incurred to validly and
effectively subject such repairs, rebuildings or
replacements to the Lien of any applicable Security
Document to perfect such Lien; and
(ii) in case any part of such repairs, rebuildings or
replacements constitutes personal property interests:
(1) an instrument in recordable form sufficient for the
Lien of any applicable Security Document to cover
such repairs, rebuildings or replacements; and
101
(2) evidence of payment or a closing statement indicating
payments to be made by the Company or the applicable
Guarantor of all filing fees, recording charges,
transfer taxes and other costs and expenses, including
reasonable legal fees and disbursements of counsel for
the Collateral Agent (and any local counsel), that may
be incurred to validly and effectively subject such
repairs, rebuildings or replacements to the Lien of any
Security Document.
(d) An Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith
delivered to the Collateral Agent conform in all material respects to
the requirements of this Indenture and any other applicable Security
Document, and that, upon the basis of such request of the Company or
the applicable Guarantor and the accompanying documents specified in
this Section 12.3, all conditions precedent herein provided for
relating to such withdrawal and payment have been complied with, and
the Trust Moneys whose withdrawal is then requested may be lawfully
paid over under this Section 12.3; and
(ii) that all of the Company's or the applicable Guarantor's
right, title and interest in and to said repairs, rebuildings or
replacements, or combination thereof, are then subject to the Lien of
the applicable Security Documents.
Upon compliance with the foregoing provisions of this Section 12.3, the Trustee
shall cause the Collateral Agent to pay on the written request of the Company an
amount of Trust Moneys of the character aforesaid equal to the amount of the
expenditures or costs stated in the Officers' Certificate required by clause (i)
of paragraph (a) of this Section 12.3, or the Fair Market Value to the Company
of such repairs, rebuildings and replacements stated in such Officers'
Certificate (and in such Independent Appraiser's or Independent Financial
Advisor's certificate, if required by paragraph (b) of this Section 12.3),
whichever is less; provided, however, that notwithstanding the above, so long as
no Default or Event of Default shall have occurred and be continuing, in the
event that any insurance proceeds or award for such property or proceeds of such
sale does not exceed the lesser of $25,000 or 1% of the principal amount of the
outstanding Notes, and, in the good faith estimate of the Company or the
applicable Guarantor, such destruction or damage resulting in such insurance
proceeds or such taking or sale resulting in such award does not detrimentally
affect the value or use of the applicable Collateral in any material respect,
upon delivery to the Trustee and the Collateral Agent of an Officers'
Certificate of the Company or the applicable Guarantor to such effect, the
Trustee shall cause the Collateral Agent to release to the Company or the
applicable Guarantor such insurance proceeds or award for such property or
proceeds of such sale, free of the Lien hereof and of the applicable Security
Documents; the Company shall take all steps necessary to notify the condemning
authority of such assignment.
102
SECTION 12.4 [Intentionally Omitted].
SECTION 12.5 Powers Exercisable Notwithstanding Event of Default.
In case an Event of Default shall have occurred and shall be
continuing, the Company or any Guarantor, as applicable, while in possession of
Collateral (other than cash, Cash Equivalents, Notes and other personal property
held by, or required to be deposited or pledged with, the Collateral Agent or
the Trustee hereunder or under the Security Documents or with the trustee,
mortgagee or other holder of a Prior Lien), may do any of the things enumerated
in Sections 12.2 and 12.3 if the Majority Holders, by appropriate action of such
holders, shall consent to such action, in which event any certificate filed
under any of such Sections shall omit the statement to the effect that no Event
of Default has occurred and is continuing. This Section 12.5 shall not apply,
however, during the continuance of an Event of Default of the type specified in
Section 6.1(a) or (b).
SECTION 12.6 Powers Exercisable by Collateral Agent or Receiver.
In case the Collateral (other than any cash, Cash Equivalents, Notes
and other personal property held by, or required to be deposited or pledged
with, the Collateral Agent or the Trustee hereunder or under the Security
Documents or with the trustee, mortgagee or other holder of a Prior Lien) shall
be in the possession of a receiver or trustee lawfully appointed, the powers
hereinbefore in this Article XII conferred upon the Company and any Guarantor,
as applicable, with respect to the withdrawal or application of Trust Moneys may
be exercised by such receiver or trustee, in which case a certificate signed by
such receiver or trustee shall be deemed the equivalent of any Officers'
Certificate required by this Article XII. If the Collateral Agent or the Trustee
shall be in possession of any of the Collateral hereunder or under any of the
Security Documents, such powers may be exercised by the Collateral Agent or the
Trustee, in its discretion.
SECTION 12.7 Disposition of Notes Retired.
All Notes received by the Trustee and for whose purchase Trust Moneys
are applied under this Article XII, if not otherwise cancelled, shall be
promptly delivered to the Trustee for cancellation and destruction unless the
Trustee shall be otherwise directed in writing by the Company. Upon destruction
of any Notes, the Trustee shall promptly issue a certificate of destruction to
the Company.
SECTION 12.8 Investment of Trust Moneys.
(a) All or any part of any Trust Moneys held by the Collateral Agent or
the Trustee hereunder (except such as may be held for the account of any
particular Notes) shall from time to time be invested or reinvested by the
Collateral Agent or the Trustee in any Cash Equivalents pursuant to the written
direction of the Company which shall specify the Cash Equivalents in which such
Trust Moneys shall be invested, provided that Trust Moneys designated to redeem
the Notes cannot be invested in Cash Equivalents having a maturity date later
than the anticipated Redemption Date. Such Cash Equivalents shall be held by the
Collateral Agent or the Trustee, as the case may be, as a part of the
Collateral, subject to the same provisions hereof as the cash used by it to
purchase such Cash Equivalents. Unless an Event of Default occurs and
103
is continuing, any interest on such Cash Equivalents (in excess of any accrued
interest paid at the time of purchase) which may be received by the Collateral
Agent or the Trustee shall be forthwith paid promptly to the Company, provided
that interest and dividends accrued and earned or paid on such investment of
Trust Moneys consisting of Net Cash Proceeds from an Asset Sale of Collateral or
other disposition of Collateral shall not be paid to the Company but shall be
Trust Moneys and used to redeem the Notes in accordance with Section 3.2.
Neither the Collateral Agent nor the Trustee shall be liable or
responsible for any loss resulting from such investments or sales except only
for its own grossly negligent action, its own grossly negligent failure to act
or its own willful misconduct in complying with this Section 12.8.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 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 13.2 Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person, or by registered or certified mail (postage prepaid,
return receipt requested), reputable overnight air courier, or telecopier
addressed as follows:
(a) if to the Issuers or the Guarantors:
REPUBLIC ENGINEERED PRODUCTS LLC
0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000
Attention: Chief Executive Officer
Facsimile: 000-000-0000
(b) if to the Trustee or Paying Agent:
LaSalle Bank National Association
Corporate Trust Services Division
000 X. XxXxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxx
Facsimile: 000-000-0000
(c) if to the Collateral Agent:
104
LaSalle Bank National Association
Corporate Trust Services Division
000 X. XxXxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxx
Facsimile: 000-000-0000
Each of the Issuers, the Guarantors, the Trustee and the Collateral
Agent by notice to the others may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication mailed to a Holder, including any notice
delivered in connection with TIA Section 310(b), TIA Section 313(c), TIA Section
314(a) and TIA Section 315(b), shall be mailed to him, first-class postage
prepaid, at his address as it appears on the register maintained by the
Registrar and shall be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee or the Collateral Agent, which is deemed given only when
received, if a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
SECTION 13.3 Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Subsidiary Guarantors, the Trustee, the Registrar, the Collateral
Agent and any other Person shall have the protection of TIA Section 312(c).
SECTION 13.4 Certificate and Opinion of Counsel as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee or the
Collateral Agent to take any action under this Indenture, the Issuers shall
furnish to the Trustee or the Collateral Agent, as applicable, at the request of
the Trustee or the Collateral Agent, as applicable, (a) an Officers' Certificate
in form and substance satisfactory to the Trustee or the Collateral Agent, as
applicable, 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, (b) an Opinion of Counsel in form and substance
satisfactory to the Trustee or the Collateral Agent, as applicable, stating
that, in the opinion of counsel, all such conditions have been complied with and
(c) where applicable, a certificate or opinion by an independent certified
public accountant satisfactory to the Trustee or the Collateral Agent, as
applicable, that complies with TIA Section 314(c).
SECTION 13.5 Statements Required in Certificate and Opinion of Counsel.
Each certificate and Opinion of Counsel with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or Opinion of
Counsel has read such covenant or condition;
105
(b) 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 of Counsel are based;
(c) a statement that, in the opinion of such Person, he has made an
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
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 13.6 Rules by Trustee, Paying Agent, Registrar, Collateral Agent.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Holders. The Paying Agent,
Collateral Agent or Registrar may make reasonable rules for its functions.
SECTION 13.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
SECTION 13.8 Governing Law.
The internal laws of the State of New York shall govern this Indenture,
the Notes and the Guarantee.
SECTION 13.9 No Recourse Against Others.
A trustee, director, officer, employee, stockholder or beneficiary, as
such, of the Issuers or the Guarantors shall not have any liability for any
obligations of the Issuers or the Guarantors under the Notes or this Indenture
or the Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability.
SECTION 13.10 Successors.
All agreements of the Issuers and the Guarantors in this Indenture and
the Notes and the Guarantees shall bind their respective successors. All
agreements of the Trustee and the Collateral Agent in this Indenture shall bind
its successor.
SECTION 13.11 Duplicate 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.
106
SECTION 13.12 Severability.
In case any provision in this Indenture or in the Notes or the
Guarantees 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, and a Holder shall have no claim therefore against any
party hereto.
SECTION 13.13 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, and are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
107
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
REPUBLIC ENGINEERED PRODUCTS LLC,
as Issuer
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
BLUE STEEL CAPITAL CORP.,
as Issuer
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
BLUE BAR L.P.,
as Guarantor
By: BLUE STEEL CORPORATION,
Its General Partner
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
N&T RAILWAY COMPANY LLC,
as Guarantor
By: REPUBLIC ENGINEERED PRODUCTS LLC,
Its Sole Member
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
S-1
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Power of Attorney
LASALLE BANK NATIONAL ASSOCIATION, as
Collateral Agent
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Power of Xxxxxxxx
X-0
EXHIBIT A
[FORM OF NOTE]
(Face of Note)
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY OTHER STATE OR
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.]*
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN].**
____________________________
* This paragraph should be included on the Note issued to the Liquidation
Trust. This legend shall be removed upon registration under the Securities Act
of the distribution of the Notes from the Liquidation Trust to the beneficiaries
of the Liquidation Trust.
** These paragraphs should be included if the Notes are issued in global
form.
A-1
(Face of Note)
10 % Senior Secured Notes due 2009
No.________________ $________
CUSIP XX. 000000 XX 0
XXXXXXXX ENGINEERED PRODUCTS LLC and BLUE STEEL CAPITAL CORP. jointly
and severally promise to pay to ______________ or registered assigns, the
principal sum of __________________ United States Dollars on _______, 2009.
Interest Payment Dates: March 31, June 30, September 30 and December 31
Record Dates: March 15, June 15, September 15 and December 15
REPUBLIC ENGINEERED PRODUCTS LLC
By: __________________________
Name:
Title:
BLUE STEEL CAPITAL CORP.
By: __________________________
Name:
Title:
Dated: __________________________
This is one of the Global Notes referred to in the within-mentioned Indenture:
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
By: __________________________
Authorized Signatory
A-2
(Back of Note)
10% SENIOR SECURED NOTE DUE 2009
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the Issuers or their agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entry as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. REPUBLIC ENGINEERED PRODUCTS LLC, a Delaware limited liability
company (the "Company"), and BLUE STEEL CAPITAL CORP., a Delaware corporation
("Blue Steel Capital" and together with the Company, the "Issuers"), jointly and
severally promise to pay interest on the principal amount of this Note at 10%
per annum from August 16, 2002 until maturity, provided that in the event that
registration and distribution of the Notes from the Liquidation Trust to the
beneficiaries of the Liquidation Trust are not consummated within 180 days from
the Issue Date, the interest rate on the Notes shall increase by 100 basis
points commencing on the 180th day after the Issue Date and interest at such
increased rate shall continue until the date that (i) such registration is
effective, (ii) distribution of the Notes from the Liquidation Trust to the
beneficiaries of the Liquidation Trust is consummated, and (iii) as a result of
such registration and distribution, the Issuers, as issuers of the Notes, shall
have caused the Notes to be freely transferable as unrestricted securities that
are immediately saleable by the holders thereof (other than holders who are
control persons or affiliates of the Issuers or any holder who by virtue of its
own legal status under the Securities Act or by agreement is subject to a
restriction on transfer of the Notes) in the United States of America The
Issuers will pay interest quarterly on March 31, June 30, September 30 and
December 31 of each year (the "Interest Payment Date"), or if any such day is
not a Business Day, on the next succeeding Business Day. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further, that the first Interest Payment Date shall be
September 30, 2002.
A-3
The Issuers jointly and severally shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal from time to time at a rate that is the interest rate then in effect
on this Note plus 2% per annum; to the extent permitted by law, they shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time at the same rate. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Issuers will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the Record Date next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be payable as to principal
and interest at the office or agency of the Issuers maintained for such purpose
within or without the City and State of New York or the City of Chicago, State
of Illinois, or, at the option of the Issuers, payment of interest may be made
by check mailed to the Holders at their addresses set forth in the register of
Holders; provided that payment by wire transfer of immediately available funds
will be required with respect to principal of and interest and premium on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Issuers or the Paying Agent. Such payment shall be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, LaSalle Bank National
Association (the "Trustee") will act as Paying Agent and Registrar. The Issuers
may not change any Paying Agent without the consent of the Majority Noteholders.
The Issuers may change any Registrar without notice to any Holder. The Issuers
or any of their Subsidiaries may act in any such capacity.
4. Indenture and Guarantees. The Issuers have issued the Notes under an
Indenture dated as of August 16, 2002 (the "Indenture") among the Issuers, the
Guarantors, the Trustee and the Collateral Agent. This Note is one of an issue
of 10% Senior Secured Notes Due 2009 of the Issuers issued under the Indenture.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb), as amended from time to time ("TIA"). The Notes are
subject to all such terms, and Holders are referred to the Indenture and the TIA
for a statement of them. The Notes are senior secured obligations of the Issuers
limited in aggregate principal amount to $80,000,000. Payment on each Note is
guaranteed on a senior secured basis by the Guarantors in accordance with the
terms of Article X of the Indenture.
5. Redemption. The Issuers have the option, at any time, to redeem the
Notes, in whole, at a redemption price equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, to but excluding the
date of redemption. The Issuers are required to utilize the proceeds of Asset
Sales of the Collateral and other dispositions of the Collateral to redeem the
Notes in part on each Interest Payment Date, at a redemption price equal to 100%
of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon, to but excluding the date of redemption.
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6. Notice of Redemption. Notice of redemption will be mailed by
first-class mail at least 30 days before the redemption date to each Holder of
Notes to be redeemed at his registered address. On and after the Redemption
Date, unless the Issuers default in making the redemption payment, interest
ceases to accrue on the Notes or portions thereof called for redemption.
7. Offer To Purchase. Section 4.15 of the Indenture provides that upon
the occurrence of a Change of Control, subject to certain exceptions contained
therein, the Issuers shall make an offer to purchase certain amounts of Notes in
accordance with the procedures set forth in the Indenture.
8. Security Documents. In order to secure the due and punctual payment
of the principal of and interest on the Notes and all other amounts payable by
the Issuers under the Indenture and the Notes when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Notes and the Indenture, the Pledgors have granted and, subject to
the terms of the Indenture, will grant Liens on the Collateral to the Collateral
Agent pursuant to the Indenture and the Security Documents. The Notes will be
secured by Liens on the Collateral that are subject only to certain permitted
encumbrances, which shall include, among other things, an equal and ratable Lien
on the Pledged Securities to secure Indebtedness under the New Credit Facility.
Each Holder, by accepting a Note, 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 respective provisions thereof and the Indenture.
The Trustee and each Holder acknowledge that a release of any of the
Collateral or any Lien strictly in accordance with the terms and provisions of
any of the Security Documents and the terms and provisions of the Indenture will
not be deemed for any purpose to be an impairment of the security under the
Indenture.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1.00 and integral multiples of $1.00. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not transfer or
exchange any Notes or portion of a Note selected for redemption, or transfer or
exchange any Notes for a period of 15 days before a selection of Notes to be
redeemed.
11. Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Issuers at their request. After that, Holders entitled to the money
must look to the Issuers for payment as general creditors unless an "abandoned
property" law designates another Person.
13. Amendment, Supplement, Waiver. From time to time, the Issuers and
the Guarantors, when authorized by Board Resolutions of their respective Boards
of Directors, and the Trustee
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may, without the consent of the Holders of any outstanding Notes, amend, waive
or supplement (or, if applicable, authorize the Collateral Agent to amend, waive
or supplement) the Indenture, the Notes, the Guarantees, the Security Documents,
and/or the Intercreditor Agreement for certain specified purposes, including,
among other things, curing ambiguities, defects or inconsistencies, qualifying,
or maintaining the qualification of, the Indenture under the Trust Indenture
Act, releasing certain Collateral described in the Indenture, acquiring a Lien
on certain new property described in the Indenture or making any other change
that does not adversely affect the rights of any holder of Notes. Other
amendments and modifications of the Indenture, the Notes, the Guarantees, the
Security Documents and/or, if applicable, the Intercreditor Agreement, may be
made by the Issuers, the Guarantors, the Trustee, and the Collateral Agent with
the consent of the Holders of not less than a majority of the aggregate
principal amount of the outstanding Notes, subject to certain exceptions
requiring the consent of the Holders of the particular Notes to be affected and
certain exceptions requiring the consent of the Holders of 95% of the aggregate
principal amount of outstanding Notes.
14. Successor. When a successor Person assumes all the obligations of
its predecessor under the Notes and the Indenture and the transaction complies
with the terms of Article V of the Indenture, the predecessor Person will be
released from those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default with respect to the Issuers specified in
clauses (k) and (l) of Section 6.1 of the Indenture) occurs and is continuing,
then the Holders of at least 25% in aggregate principal amount of the
outstanding Notes may, by written notice, and the Trustee upon the request of
the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes shall, declare the principal of and accrued and unpaid
interest on, all the Notes to be due and payable immediately. Upon any such
declaration such principal shall become due and payable immediately. If an Event
of Default specified in clause (k) or (l) of Section 6.1 of the Indenture with
respect to the Issuers occurs and is continuing, then the principal of and
accrued and unpaid interest on, all the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
After a declaration of acceleration under Section 6.2 of the Indenture,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee and before any foreclosure (whether pursuant to judicial
proceedings or otherwise), or the taking of ownership in lieu of foreclosure,
upon any Collateral by the Collateral Agent (on behalf of the Trustee or
Holders), by the Trustee or at the direction of the Holders, the Holders of not
less than a majority in aggregate principal amount of outstanding Notes, by
written notice to the Issuers and the Trustee, may rescind such declaration if
(a) the Issuers have paid or deposited with the Trustee or the Collateral Agent
a sum sufficient to pay (i) all sums paid or advanced by the Trustee or the
Collateral Agent under the Indenture, the Security Documents and the reasonable
compensation, expenses, disbursements and advances of the Trustee and the
Collateral Agent and their respective agents and counsel, (ii) all overdue
interest on all Notes, (iii) the principal of any Notes which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Notes, and (iv) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal at the rate borne
by the Notes which has become due otherwise than by such declaration of
acceleration; (b) the rescission
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would not conflict with any judgment or decree of a court of competent
jurisdiction; and (c) all Events of Default, other than the non-payment of
principal of and interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture, the
Guarantees, the Security Documents or the Notes. Subject to certain exceptions
and limitations, Holders of at least a majority in aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any remedy.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Issuers must furnish annual and quarterly
compliance certificates to the Trustee.
By acceptance of the benefits of the Indenture and the Security
Documents each Holder confirms that the Collateral Agent is authorized to
execute and deliver and perform its obligations under the Intercreditor
Agreement and the remedies set forth in the Indenture shall be subject to the
terms of such Intercreditor Agreement.
16. Trustee Dealings with Issuers. Subject to certain limitations
imposed by the TIA, the Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Issuers or
their respective Affiliates, and may otherwise deal with the Issuers or their
respective Affiliates, as if it were not Trustee.
17. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Issuers or a Guarantor shall not have any liability
for any obligations of the Issuers or a Guarantor under the Notes or the
Indenture or the Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
18. Discharge. The Issuers' and each Guarantor's obligations pursuant
to the Indenture and the Guarantees will be discharged, except for obligations
pursuant to certain sections thereof, subject to the terms of the Indenture,
upon the payment of all the Notes or upon the irrevocable deposit with the
Trustee of money and/or U.S. Government Obligations sufficient to pay when due
principal of and interest on the Notes to maturity or redemption, as the case
may be.
19. Definitions; Governing Law. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Indenture. The internal laws of
the State of New York shall govern this Note.
20. Authentication. This Note shall not be valid until the Trustee
signs the certificate of authentication on the face of this Note.
21. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
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22. CUSIP. Pursuant to the recommendations promulgated by the Committee
on Uniform Security Identification Procedures the Issuers have caused CUSIP
numbers to be printed on the Notes and have directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to (Insert assignee's soc. sec. or tax I.D. no)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for him.
Date: ______________________________________________________
Your Signature:_____________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:________________________________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Issuers pursuant to Section 4.15 of the Indenture, check the box below:
[_] Section 4.15
If you want to elect to have only part of the Note purchased
by the Issuers pursuant to Section 4.15 of the Indenture, state the amount you
elect to have purchased: $________
Date:______________________
Your Signature:_____________________________________________
(Sign exactly as your name appears on the face of this Note)
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SCHEDULE OF TRANSFER OR EXCHANGES OF INTERESTS IN THE GLOBAL NOTE/1/
The following transfers or exchanges of a part of this Global
Note for an interest in another Global Note or for a Certificated Note, or
transfers or exchanges of a part of another Global Note or Certificated Note for
an interest in this Global Note, have been made:
Principal Amount
Amount of Amount of increase of
decrease in in Principal this Global Note Signature of
Principal Amount Amount following such authorized officer
of of decrease (or of Trustee or Note
Date of Exchange this Global Note this Global Note increase) Custodian
----------------------- ---------------- ------------------ ---------------- ------------------
____________________________
/1/ This schedule should only be included if the Notes are issued in global
form.
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EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated
as of ________, among [GUARANTOR] (the "New Subsidiary
Guarantor"), a subsidiary of REPUBLIC ENGINEERED PRODUCTS LLC, a
Delaware limited liability company (the "Company"), the Company,
BLUE STEEL CAPITAL CORP., a Delaware corporation ("Blue Steel
Capital," and together with the Company, the "Issuers") and the
Guarantors (the "Existing Guarantors") under the indenture
referred to below, and LASALLE BANK NATIONAL ASSOCIATION, as
trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Issuers and the Existing Guarantors have heretofore executed
and delivered to the Trustee an Indenture (the "Indenture") dated as of August
16, 2002 providing for the initial issuance of an aggregate principal amount at
maturity of up to $80,000,000 of 10% Senior Notes due 2009 (the "Notes");
WHEREAS Section 4.21 of the Indenture provides that under certain
circumstances the Issuers are required to cause the New Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantor shall unconditionally guarantee all the Issuers'
obligations under the Notes pursuant to a Guarantee on the terms and conditions
set forth herein; and
WHEREAS pursuant to Section 9.6 of the Indenture, the Trustee, the Issuers
and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Issuers, the Existing Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the holders of
the Notes as follows:
1. Agreement to Guarantee. The New Subsidiary Guarantor hereby
agrees, jointly and severally with all other Guarantors, to unconditionally
guarantee the Issuers' obligations under the Notes and under the Indenture on
the terms and subject to the conditions set forth in Article Ten of the
Indenture and to be bound by all other applicable provisions of the Indenture.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This
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Supplemental Indenture shall form a part of the Indenture for all purposes, and
every holder of Notes heretofore or hereafter authenticated and delivered shall
be bound hereby.
3. Governing Law. The internal laws of the State of New York shall
govern this Supplemental Indenture.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
By:_______________________________________
Name:
Title:
REPUBLIC ENGINEERED PRODUCTS LLC
By:_______________________________________
Name:
Title:
BLUE STEEL CAPITAL CORP.
By:_______________________________________
Name:
Title:
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Subsidiary Guarantors:
By:________________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By ________________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Collateral Agent
By ________________________________________
Name:
Title:
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Schedule 1.1(a)
Independent Appraiser
1. MEI
2. Dovebid
Independent Financial Advisor
1. XxXxxxxx
2. Jefferies & Company
3. Xxxxxxxx Xxxxxxx & Co.
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Schedule 4.9(b)(ii)
Indebtedness Outstanding on the Issue Date
None.
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