Exhibit T3C
WHEELING-PITTSBURGH STEEL CORPORATION
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
SENIOR SECURED NOTES DUE 2011
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INDENTURE
Dated as of [__________], 2003
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BANK ONE, N.A.
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Trustee
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
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310 (a)(1) ...................................... 7.10
(a)(2) ...................................... 7.10
(a)(3) ...................................... N.A.
(a)(4) ...................................... N.A.
(a)(5) ...................................... 7.10
(b).......................................... 7.10
(c).......................................... N.A.
311 (a).......................................... 7.11
(b).......................................... 7.11
(c).......................................... N.A.
312 (a).......................................... 2.6
(b).......................................... 11.3
(c).......................................... 11.3
313 (a).......................................... 7.6
(b)(1) ...................................... 7.6; 10.10(b)
(b)(2) ...................................... 7.6; 7.7; 10.10(b)
(c).......................................... 7.6;11.2
(d).......................................... 7.6
314 (a).......................................... 4.3
(b).......................................... 10.1
(c)(1) ...................................... 11.4
(c)(2) ...................................... 11.4
(c)(3) ...................................... N.A.
(d) ......................................... 10.1(c); 10.10(b); 10.11
(e) ......................................... 11.5
(f) ......................................... N.A.
315 (a) ......................................... 7.1
(b) ......................................... 7.5,11.2
(c) ......................................... 7.1
(d) ......................................... 7.1
(e) ......................................... 6.11
316-- (a)(last sentence) .......................... 2.11
(a)(1)(A) ................................... 6.5
(a).(1.XB) .................................. 6.4
(a)(2) ...................................... N.A.
(b) ......................................... 6.7
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
(c) ......................................... N. A.
317 (a)(1) ...................................... 6.8
(a)(2) ...................................... 6.9
(b) ......................................... 2.5
318 (a) ......................................... 11.1
(b) ......................................... N.A.
(c) ......................................... 11.1
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE ................................................................. 1
Section 1.1. Definitions .................................................................................. 1
Section 1.2. Other Definitions ............................................................................ 9
Section 1.3. Incorporation by Reference of Trust Indenture Act ............................................ 9
Section 1.4. Rules of Construction ........................................................................ 9
ARTICLE II. THE NOTES ................................................................................................. 10
Section 2.1. Form and Dating. ............................................................................. 10
Section 2.2. Restrictive Legends .......................................................................... 11
Section 2.3. Execution and Authentication ................................................................. 11
Section 2.4. Registrar and Paying Agent.................................................................... 12
Section 2.5. Paying Agent to Hold Money in Trust. ......................................................... 12
Section 2.6. Holder Lists ................................................................................. 13
Section 2.7. Transfer and Exchange ........................................................................ 13
Section 2.8. Book-Entry Provisions for Global Notes ....................................................... 14
Section 2.9. Replacement Notes ............................................................................ 14
Section 2.10. Outstanding Notes ........................................................................... 15
Section 2.11. Treasury Notes. ............................................................................. 15
Section 2.12. CUSIP Numbers ............................................................................... 16
Section 2.13. Temporary Notes ............................................................................. 16
Section 2.14. Cancellation ................................................................................ 16
Section 2.15. Defaulted Interest .......................................................................... 16
ARTICLE III. REDEMPTION AND PREPAYMENT ................................................................................ 17
Section 3.1. Notices to Trustee ........................................................................... 17
Section 3.2. Selection of Notes to Be Redeemed ............................................................ 17
Section 3.3. Notice of Redemption ......................................................................... 17
Section 3.4. Effect of Notice of Redemption ............................................................... 18
Section 3.5. Deposit of Redemption Price .................................................................. 18
Section 3.6. Notes Redeemed in Part ....................................................................... 19
Section 3.7. Optional Redemption .......................................................................... 19
Section 3.8. Mandatory Redemption ......................................................................... 19
ARTICLE IV. COVENANTS ................................................................................................. 20
Section 4.1. Payment of Notes ............................................................................. 20
Section 4.2. Maintenance of Office or Agency .............................................................. 20
Section 4.3. Reports ...................................................................................... 20
Section 4.4. Compliance Certificate ....................................................................... 21
Section 4.5. Taxes......................................................................................... 21
Section 4.6. Stay, Extension and Usury Laws ............................................................... 22
Section 4.7. Restrictions Relating to Joint Venture Distributions ......................................... 22
Section 4.8. Disposition of Joint Venture Interests ....................................................... 22
Section 4.9. Transactions with Affiliates ................................................................. 22
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Section 4.10. Liens ....................................................................................... 23
Section 4.11. Limitation on Indebtedness .................................................................. 23
Section 4.12. Subrogation Rights .......................................................................... 24
Section 4.13. Limitation on Restrictions on Distributions from Subsidiaries ............................... 24
Section 4.14. Restricted Payments ......................................................................... 24
Section 4.15. Corporate Existence ......................................................................... 25
Section 4.16. Payment for Consent ......................................................................... 25
ARTICLE V. SUCCESSORS ................................................................................................. 25
Section 5.1. Xxxxxx, Consolidation, or Sale of Assets .................................................... 25
Section 5.2. Successor Corporation Substituted ........................................................... 26
ARTICLE VI. DEFAULTS AND REMEDIES ..................................................................................... 26
Section 6.1. Events of Default ........................................................................... 26
Section 6.2. Acceleration ................................................................................ 29
Section 6.3. Other Remedies .............................................................................. 29
Section 6.4. Waiver of Past Defaults ..................................................................... 29
Section 6.5. Control by Majority ......................................................................... 29
Section 6.6. Limitation on Suits ......................................................................... 30
Section 6.7. Rights of Holders of Notes to Receive Payment. .............................................. 30
Section 6.8. Collection Suit by Trustee. ................................................................. 30
Section 6.9. Trustee May File Proofs of Claim ............................................................ 31
Section 6.10. Trustee May Enforce Claims without Possession of Notes ...................................... 31
Section 6.11. Priorities .................................................................................. 31
Section 6.12. Undertaking for Costs ....................................................................... 32
ARTICLE VII. TRUSTEE .................................................................................................. 32
Section 7.1. Duties of Trustee ............................................................................ 32
Section 7.2. Rights of Trustee ............................................................................ 33
Section 7.3. Individual Rights of Trustee ................................................................. 34
Section 7.4. Trustee's Disclaimer ......................................................................... 34
Section 7.5. Notice of Defaults ........................................................................... 34
Section 7.6. Reports by Trustee to Holders of the Notes ................................................... 35
Section 7.7. Compensation and Indemnity. .................................................................. 35
Section 7.8. Replacement of Trustee ....................................................................... 36
Section 7.9. Successor Trustee by Xxxxxx. etc ............................................................. 37
Section 7.10. Eligibility; Disqualification ............................................................... 37
Section 7.11. Preferential Collection of Claims Against Company ........................................... 37
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE ................................................................ 37
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. .................................... 37
Section 8.2. Legal Defeasance and Discharge ............................................................... 38
Section 8.3. Covenant Defeasance .......................................................................... 38
Section 8.4. Conditions to Legal or Covenant Defeasance ................................................... 39
Section 8.5. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions 40
Section 8.6. Repayment to Company ......................................................................... 41
Section 8.7. Reinstatement ................................................................................ 41
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ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER .......................................................................... 41
Section 9.1. Without Consent of Holders of Notes. ......................................................... 41
Section 9.2. With Consent of Holders of Notes ............................................................. 42
Section 9.3. Compliance with Trust Indenture Act. ......................................................... 44
Section 9.4. Revocation and Effect of Consents ............................................................ 44
Section 9.5. Notation on or Exchange of Notes ............................................................. 44
Section 9.6. Trustee to Sign Amendments, etc .............................................................. 44
ARTICLE X. SECURITY & GUARANTEE OF NOTES .............................................................................. 44
Section 10.1. Security of Notes ........................................................................... 44
Section 10.2. Subsidiary Guarantee ........................................................................ 45
Section 10.3. Execution and Delivery of Subsidiary Guarantee .............................................. 46
Section 10.4. Guarantors May Consolidate. etc. on Certain Terms ........................................... 47
Section 10.5. Releases Following Sale of Assets ........................................................... 48
Section 10.6. Limitation on Guarantor Liability ........................................................... 48
Section 10.7. "Trustee" to Include Paying Agent ........................................................... 49
Section 10.8. Priority of Subsidiary Guarantee ............................................................ 49
Section 10.9. Rights under the Subsidiary Guarantees ...................................................... 49
Section 10.10. Release of Collateral ...................................................................... 50
Section 10.11. Certificates of the Company ................................................................ 50
Section 10.12. Certificates of the Trustee ................................................................ 50
Section 10.13. Authorization of Receipt of Funds by the Trustee Under the Pledge Agreement. ............... 51
Section 10.14. Termination of Security Interest ........................................................... 51
ARTICLE XI. MISCELLANEOUS ............................................................................................. 51
Section 11.1. Trust Indenture Act Controls ................................................................ 51
Section 11.2. Notices ..................................................................................... 51
Section 11.3. Communication by Holders of Notes with Other Holders of Notes ............................... 52
Section 11.4. Certificate and Opinion as to Conditions Precedent .......................................... 53
Section 11.5. Statements Required in Certificate or Opinion................................................ 53
Section 11.6. Rules by Trustee and Agents ................................................................. 53
Section 11.7. No Personal Liability of Directors, Officers, Employees and Stockholders .................... 53
Section 11.8. Governing Law ............................................................................... 54
Section 11.9. No Adverse Interpretation of Other Agreements................................................ 54
Section 11.10. Successors ................................................................................. 54
Section 11.11. Severability ............................................................................... 54
Section 11.12. Counterpart Originals ...................................................................... 54
Section 11.13. Table of Contents, Headings, etc ........................................................... 54
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EXHIBITS
Exhibit A Form of Note ........................................... A-1
Exhibit B Form of Subsidiary Guarantee ........................... B-1
Exhibit C Form of Supplemental Indenture ......................... C-1
Exhibit D Affiliate Transactions ................................. D-1
This Indenture, dated as of [__________], 2003, is among
Wheeling-Pittsburgh Steel Corporation, a Delaware corporation (the "Company"),
the guarantors listed on the signature pages hereto (each, a "Guarantor" and,
collectively, the "Guarantors") and Bank One, N.A., a [_________________], as
trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Senior Secured Notes due 2011 (the "Notes"):
ARTICLE I.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Affiliate" of any specified Person means any other Person which, directly
or indirectly, controls, is controlled by or is under direct or indirect common
control with, such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Percentage" means, (a) during the period commencing on the
date hereof through the date immediately preceding the fifth anniversary of this
Indenture, 50%, and (b) thereafter, 100%.
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial interests in a Global Note, the rules and procedures of the
Depositary that apply to such transfer and exchange.
"Bankruptcy Court" means the United States Bankruptcy Court for the
Northern District of Ohio.
"Bankruptcy Law" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person, or any authorized committee of the Board of Directors
of such Person.
"Business Day" means any day other than a Legal Holiday.
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"Capital Expenditure Indebtedness" means Indebtedness incurred by any
Person to finance the purchase or construction of any property or assets
acquired or constructed by such Person which have a useful life of more than one
year so long as (a) the purchase or construction price for such property or
assets is included in "addition to property, plant or equipment" in accordance
with GAAP, (b) the acquisition or construction of such property or assets is not
part of any acquisition of a Person or line of business and (c) such
Indebtedness is incurred within 180 days of the acquisition or completion of
construction of such property or assets.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited), and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Collateral" shall have the meaning provided in the Pledge Agreement.
"Collateral Trustee" means the collateral trustee appointed by the Secured
Parties to hold a security interest in the Collateral for the benefit of the
Secured Parties.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.2 hereof or such other address as to which the
Trustee may give notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.4 hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
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"Excess Cash Flow" means, with respect to the Company and any particular
period, an amount equal to (a) the aggregate amount of Joint Venture
Distributions received by the Company during such period multiplied by the
Applicable Percentage, minus (b) the aggregate amount of current interest
required to be paid or accrued by the Company during such period on the
outstanding Notes, minus (c) the aggregate amount of capitalized interest which
has accrued and remains unpaid by the Company on the outstanding Notes which is
required to be paid in such period in the manner provided in the Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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 have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and other agreements or arrangements
designed to protect such Person against fluctuations in interest rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as Indebtedness of others
secured by a Lien on any asset of such Person (whether or not such Indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
guarantee by such Person of any Indebtedness of any other Person. The amount of
any Indebtedness outstanding as of any date shall be (a) the accreted value
thereof, in the case of any Indebtedness that does not require current payments
of interest, and (b) the principal amount thereof, in the case of any other
Indebtedness.
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"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Issue Date" means the date on which the Notes are initially issued
pursuant to this Indenture.
"Joint Venture Distributions" means all dividends, interest or other
distributions of earnings paid to the Company in respect of the Joint Venture
Interests.
"Joint Venture Interests" means, collectively, the Equity Interests of
Wheeling-Nisshin and OCC owned by the Company as of the date hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. 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.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Maturity Date" means [__________], 2011.
"Net Proceeds" means the aggregate proceeds received by the Company in
respect of any disposition of any of its Joint Venture Interests, net of
(without duplication) (a) the direct costs relating to such disposition
(including, without limitation, reasonable legal, accounting and investment
banking fees, sales commissions, appraiser fees and costs incurred in connection
with such disposition), (b) taxes paid or estimated to be payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements), (c) amounts required to be applied to the
repayment of Indebtedness in respect of the Term Loan Agreement secured by a
Lien on the Joint Venture Interests that were the subject of such disposition
(except that, as used in Section4.8, amounts applied to repayment of
Indebtedness under this clause (c) shall not be deducted), and (d) any reserve
established in accordance with GAAP or any amount placed in escrow, in either
case for adjustment in respect of the sale price of such Joint Venture
Interests, until such time as such reserve is reversed or such escrow
arrangement is terminated, in which case Net Proceeds shall include only the
amount of the reserve so reversed or the amount returned to the Company from
such escrow arrangement.
"Note Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
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"Note Obligations" means all Obligations of the Company with respect to
the Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnification, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
"OCC" means Ohio Coatings Company, a [________] corporation.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officer's Certificate" means a certificate signed on behalf of the
Company by the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company, that meets the
requirements of Section 11.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 11.5 hereof.
The counsel may be counsel to the Company, any Subsidiary of the Company or the
Trustee.
"Permitted Indebtedness" [to be discussed]
"Permitted Liens" means (a) Liens securing the Note Obligations; (b) Liens
securing the Term Loan Agreement; (c) Liens on the Joint Venture Interests in
favor of the Secured Parties; (d) Liens securing the Revolving Credit Facility,
(e) Liens existing as of the date of this Indenture, (f) Liens on property of a
Person existing at the time such Person is merged into or consolidated with the
Company or any Subsidiary of the Company, provided, that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated
with the Company or any of its Restricted Subsidiaries; (g) Liens on property
existing at the time of acquisition thereof by the Company or any Restricted
Subsidiary of the Company, provided that such Liens were in existence prior to
the contemplation of such acquisition; (h) pledges or deposits under worker's
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or deposits
to secure public statutory obligations of such Person or deposits of cash or
United States Government bonds to secure surety or appeal bonds to which such
Person is a party, or deposits as security for contested taxes or import duties
or for the payment of rent in each case incurred in the ordinary course of
business, (i) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently pursued, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor, (j) Liens incurred in the
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ordinary course of business of the Company or any Restricted Subsidiary of the
Company that (1) are not incurred in connection with the borrowing of money or
the obtaining of advances or credit (other than trade credit in the ordinary
course of business) and (2) do not in the aggregate materially detract from the
value of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary; (k) Liens securing
Permitted Refinancing Indebtedness, provided that the Company was permitted to
incur such Liens with respect to the Indebtedness so refinanced; and (l) minor
encroachments, encumbrances, easements or reservations of, or rights of others
for, rights-of-way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions as to the use of real
properties all of which do not materially impair the value or utility for its
intended purposes of the real property to which they relate or Liens incidental
to the conduct of the business of such Person or to the ownership of its
properties.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Subsidiaries issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Restricted Subsidiaries; provided that
(a) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted
value, if applicable), plus premium, if any, and accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in connection therewith); and
(b) such Indebtedness is incurred either by the Company or by the Subsidiary who
is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; provided, however, that a Subsidiary may
guarantee Permitted Refinancing Indebtedness incurred by the Company, whether or
not such Restricted Subsidiary was an obligor or guarantor of the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Permitted Working Capital Indebtedness" means Indebtedness of the Company
and its Subsidiaries under the Revolving Credit Facility and under any other
agreement, instrument, facility or arrangement that is intended to provide
working capital financing or financing for general corporate purposes (including
any asset securitization facility involving the sale of accounts receivable);
provided that the aggregate outstanding amount of such Indebtedness of the
Company and its Subsidiaries, at the time of incurrence, shall not exceed the
greater of (a) the sum of (i) 65% of the net aggregate book value of all
inventory of the Company and its Subsidiaries at such time and (ii) 85% of the
net aggregate book value of all accounts receivable (net of bad debt expense) of
the Company and its Subsidiaries at such time and (b) $250 million.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof (including
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any subdivision or ongoing business of any such entity or substantially all of
the assets of any such entity, subdivision or business).
"Plan of Reorganization" means the Plan of Reorganization of the Company
filed with the Bankruptcy Court on December 20, 2002, as amended by the First
Amended Plan of Reorganization filed with the Bankruptcy Court on January [9],
2003, the Second Amended Plan of Reorganization filed with the Bankruptcy Court
on May , 2003, and the Third Amended Plan of Reorganization filed with the
Bankruptcy Court on May __, 2003.
"Pledge Agreement" means the Pledge Agreement of even date herewith, among
the Company, the Guarantors, the Collateral Trustee, the Trustee and the
representatives of the other Secured Parties, pursuant to which the Company
pledges to the Collateral Trustee, for the benefit of the holders of the Notes
and the other Secured Parties, all of its Joint Venture Interests.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, including Capital Stock in, and other securities of, any other
Person.
"RDL" means [Rio Doce Limited].
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Department of the Trustee (or any successor
department of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Revolving Credit Facility" means the Revolving Credit Agreement, dated
as of [___________], 2003, among Company, the lenders party thereto and The
Royal Bank of Canada, as administrative agent for such lenders, as the same may
be amended, supplemented or otherwise modified including any refinancing,
refunding, replacement or extension thereof and whether by the same or any other
lender or groups of lenders.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means the lenders under the Term Loan Agreement, the
lenders under the Revolving Credit Facility, the holders of the Notes, the
holders of the Series B Notes, and RDL.
"Securities Act" means the Securities Act of 1933, as amended.
"Series B Indenture" means the Indenture, of even date herewith, under
which the Series B Notes are issued, as amended or supplemented from time to
time.
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"Series B Notes" means the $20,000,000 in aggregate principal amount of
Series B Notes due 2010 issued under the Series B Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (a) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof), and (b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person, or (ii)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof). For the avoidance of
doubt, neither Wheeling-Nisshin nor OCC is, as of the date hereof, a Subsidiary
of the Company.
"Subsidiary Guarantees" means the joint and several guarantees of the
Company's payment obligations under the Notes issued by all of the Company's
present and future Significant Subsidiaries (the "Guarantors")
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Term Loan Agreement" means the Term Loan Agreement, dated as of
[_______], 2003, between the Company, the lenders party thereto and The Royal
Bank of Canada, as administrative agent for such lenders, as the same may be
amended, supplemented or otherwise modified including any refinancing,
refunding, replacement or extension thereof and whether by the same or any other
lender or groups of lenders.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"U.S. Government Obligations" means direct, fixed-rate obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
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the payment of which the full faith and credit of the United States of America
is pledged, which are not callable and which mature (or may be put to the issuer
by the Holder at no less than par) no later than the maturity date of the Notes.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wheeling-Nisshin" means Wheeling-Nisshin, Inc., a Delaware
corporation.
"WPC" means Wheeling Pittsburgh Corporation, the parent of the company.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Affiliate Transaction" ...........................................4.9
"Agent Members" ...................................................2.8
"Covenant Defeasance" .............................................8.3
"DTC"..............................................................2.4
"Event of Default" ................................................6.1
"Global Note" .....................................................2.1
"Legal Defeasance" ................................................8.2
"Paying Agent" ....................................................2.4
"Payment Default" .................................................6.1
"Physical Note" ...................................................2.1
"Registrar" .......................................................2.4
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is as and to the extent required incorporated by reference in and made a part of
this Indenture. Any terms incorporated in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
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(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and transactions;
and
(f) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE II.
THE NOTES
SECTION 2.1. FORM AND DATING.
(a) 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 issued in
denominations of $1,000 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 Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(b) Notes issued in reliance upon 11 U.S.C. Section 1145 which are
freely tradable by the Holder thereof after issuance shall be issued as one or
more global notes in registered form substantially in the form of Exhibit A,
bearing the legend set forth in Section 2.2 (collectively, "Global Notes") or,
at the request of such a Holder on or after the date hereof, as certificated
notes in registered form substantially in the form set forth on Exhibit A (the
"Physical Notes"). The aggregate principal amount of the Global Notes may be
increased or decreased from time to time by adjustments made on the records of
the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
(c) The Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
(c) Global Notes. Notes issued in certificated form shall be
substantially in the form of Exhibit A attached hereto [(but without including
the text referred to in footnotes 1 and 2 thereto)].
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SECTION 2.2. RESTRICTIVE LEGENDS.
Each Global Note shall bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY 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 DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THIS INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO WHEELING-PITTSBURGH STEEL CORPORATION
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT THEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE.
SECTION 2.3. EXECUTION AND AUTHENTICATION.
Two officers shall sign the Notes for the Company by either manual or
facsimile signature. The Company's seal shall be reproduced, impressed, affixed
or imprinted on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated or at any time thereafter, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. Such signature shall be conclusive evidence that the Note has
been authenticated under this Indenture. The form of Trustee's certificate of
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authentication to be borne by the Notes shall be substantially as set forth in
Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed by two
Officers, 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 at any time may not exceed such amount except as provided in
Section 2.9 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company,
any Guarantor or an Affiliate of the Company.
SECTION 2.4. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in New York, New York
where Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency in New York, New York where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, and such agreement shall
incorporate the TIA's provisions of this Indenture that relate to such Agent.
The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.5. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent other than the Trustee shall agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal of or interest
on the Notes, and will notify the Trustee of any default by the Company (or any
other obligor of the Notes) in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to
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pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary 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
proceedings relating to the Company after the date hereof, the Trustee shall
serve as Paying Agent for the Notes.
SECTION 2.6. 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 Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least 5
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.7. TRANSFER AND EXCHANGE.
(a) The Notes are issuable only in registered form. A Holder may
transfer a Note only by written application to the Registrar stating the name of
the proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Note Register. Prior to the registration
of any transfer by a Holder as provided herein, the Company, the Trustee, and
any agent of the Company shall treat the Person in whose name the Note is
registered as the owner thereof for all purposes whether or not the Note shall
be overdue, and neither the Company, the Trustee, nor any such agent shall be
affected by notice to the contrary. Furthermore, any Holder of a Global Note
shall, by acceptance of such Global Note, agree that transfers of beneficial
interests in such Global Note may be effected only through a book entry system
maintained by the Holder of such Global Note (or its agent) and that ownership
of a beneficial interest in the Note shall be required to be reflected in a book
entry.
(b) When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Notes of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's request. No service charge shall be made for any registration of
transfer or exchange or redemption of the Notes, 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
other similar governmental charge payable upon exchanges pursuant to Section
3.7, 3.8 or 8.5 hereof). The Registrar shall not be required (i) to issue,
register
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the transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 3.03 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 2.8. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Notes initially shall (i) be registered in the name of
the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Section 2.2. Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary (or its nominee) or impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Note.
(b) The registered holder of a Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(c) Global Notes and interests therein may not be exchanged for
Physical Notes, whether in whole or in part, unless (i) the Depositary (x)
notifies the Company that it is unwilling or unable to continue as depositary
for the Global Notes and the Company thereupon fails to appoint a successor
depositary within 90 days or (y) has ceased to be a clearing agency registered
under the Exchange Act, (ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Physical Notes, (iii) any
beneficial owner of interests in a Global Note so requests or (iv) a Default or
an Event of Default exists and the Trustee requests the issuance of Physical
Notes. In any such case, the Company will notify the Trustee in writing that,
upon surrender by the beneficial owners of their interests in such Global Notes,
Physical Notes will be issued to each Person that such direct and indirect
participants in the Depositary identify as being the beneficial owner of the
related Notes.
SECTION 2.9. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
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Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its and
the Trustee's expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.10. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.11 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.9 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the entire principal of and interest on any Note is considered paid
under Section 4.1 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than the Company, a Subsidiary of the
Company or an Affiliate) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.11. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, a Subsidiary of the Company or an Affiliate, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Trustee knows are so owned shall be so disregarded.
Notwithstanding the foregoing, Notes that the Company, a Subsidiary of the
Company or an Affiliate offers to purchase or acquires pursuant to an offer,
exchange offer, tender offer or otherwise shall not be deemed to be owned by the
Company, a Subsidiary of the Company or an Affiliate until legal title to such
Notes passes to the Company, such Subsidiary or such Affiliate as the case may
be.
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SECTION 2.12. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP," "CINS" or "ISIN"
numbers (if then generally in use), and the Trustee shall use CUSIP, CINS or
ISIN numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders; provided, that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of redemption or exchange and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee of any change in any of
such numbers
SECTION 2.13. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes. Until such exchange, Holders of temporary Notes shall be entitled to all
of the benefits of this Indenture.
SECTION 2.14. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and, at the request of
the Company, shall destroy cancelled Notes (subject to the record retention
requirement of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or redeemed or that have been delivered
to the Trustee for cancellation.
SECTION 2.15. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.1 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at
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the expense of the Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.
ARTICLE III.
REDEMPTION AND PREPAYMENT
SECTION 3.1. NOTICES TO TRUSTEE.
If the Company elects or is required to redeem Notes pursuant to the
optional or mandatory redemption provisions of Sections 3.7 or 3.8 hereof, it
shall furnish to the Trustee, at least 30 days but not more than 60 days before
a redemption date, an Officer's Certificate setting forth (a) the clause of this
Indenture pursuant to which the redemption shall occur, (b) the redemption date,
(c) the principal amount of Notes to be redeemed and (d) the redemption price.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
pro rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 days nor more than 60 days prior to the redemption date
by the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.3. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
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(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in a
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP, CINS or ISIN number, if any, listed in such
notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officer's Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph (unless a shorter notice shall have been agreed to by
the Trustee in writing).
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest on all Notes to be redeemed on that date. The Paying Agent
shall promptly return to the Company any money deposited with the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price of
and accrued interest on all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date and interest shall cease to accrue on the Notes
or the portions of Notes called for redemption. If a Note is redeemed on or
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after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business on such record date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.1 hereof.
SECTION 3.6. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the written order of the Company signed by two Officers of the
Company, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
SECTION 3.7. OPTIONAL REDEMPTION.
(a) The Company shall have the option to redeem the Notes at any time
and from time to time, in whole or in part, at a redemption price of 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date
(b) Any redemption pursuant to this Section 3.7 shall be made pursuant
to the provisions of Section 3.1 through Section 3.6 hereof.
SECTION 3.8. MANDATORY REDEMPTION.
(a) Except as set forth in this Section 3.8, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
(b) For each semi-annual interest period of the Company ending after
the date hereof, the Company shall make a mandatory redemption payment in
respect of the principal amount of the Notes in an amount equal to Excess Cash
Flow for such interest period of the Company, each such mandatory redemption
payment to be due [___] days after the end of each such interest period.
(c) In the event that the Company sells, transfers, assigns or
otherwise disposes of any of its Joint Venture Interests in accordance with the
provisions of Section 4.8 hereof, then the Company shall make a mandatory
redemption payment in respect of the principal amount of the Notes in an amount
equal to the Net Proceeds received in respect of such disposition within 60 days
after such disposition.
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ARTICLE IV.
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of and interest
on the Notes on the dates and in the manner provided in the Notes. Principal and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York time
on the due date money deposited by the Company in immediately available funds
and designated for and sufficient to pay all principal and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the interest rate on the Notes to the extent lawful; it 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
period), at the same rate to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency in New York, New York
(which may be an office of the Trustee or an affiliate of the Trustee, Registrar
or co-registrar) where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3.
SECTION 4.3. REPORTS.
(a) Whether or not WPC is required to do so by the rules and
regulations of the SEC, WPC will file with the SEC (unless the SEC will not
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accept such a filing) and, within 15 days of filing, or in the event the SEC
will not accept such a filing, the deadline for such filing, the same with the
SEC, furnish to the Holders of the Notes (i) all quarterly and annual financial
and other information with respect to WPC and its Subsidiaries that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if WPC
were required to file such forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by WPC's certified independent
accountants, and (ii) all current reports that would be required to be filed
with the SEC on Form 8-K if WPC were required to file such reports. The Company
shall at all times comply with TIA Section 314(a).
(b) For as long as any of the Notes remain outstanding and constitute
"restricted securities" under Rule 144 under the Securities Act, WPC shall
provide the Trustee and the Holders with any information required to be
delivered pursuant to Rule 144 under the Securities Act.
SECTION 4.4. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officer's Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officer's Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.5. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
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SECTION 4.6. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.7. RESTRICTIONS RELATING TO JOINT VENTURE DISTRIBUTIONS.
The Company shall not (a) enter into or permit to exist any arrangement
or agreement (excluding this Indenture and the Term Loan Agreement and Permitted
Refinancing Indebtedness in respect thereof) which directly or indirectly
prohibits the Company from creating, assuming or incurring any Lien (other than
Permitted Liens) upon its Joint Venture Interests, or (b) enter into any
agreement, contract or arrangement (excluding this Indenture and the Term Loan
Agreement and Permitted Refinancing Indebtedness in respect thereof) (i)
restricting the right or ability of the Company to receive any Joint Venture
Distributions or reducing the amount thereof, or (ii) restricting the ability of
the Company to pay to the Holders the amount of any Joint Venture Distributions
received by the Company.
SECTION 4.8. DISPOSITION OF JOINT VENTURE INTERESTS.
The Company shall not dispose of any of its Joint Venture Interests
unless (a) such disposition constitutes an arms-length transaction for fair
value, (b) at least seventy-five percent (75%) of the consideration therefor
received by the Company is in the form of cash, and (c) the Company receives Net
Proceeds of not less than (i) $[_________] in respect of a disposition of its
Joint Venture Interests in OCC, (ii) $[_________] in respect of a disposition of
its Joint Venture Interests in Wheeling-Nisshin, and (iii) an amount sufficient
to repay 100% of the outstanding principal and interest on the Notes in respect
of a disposition of all of its Joint Venture Interests.
SECTION 4.9. TRANSACTIONS WITH AFFILIATES.
The Company shall not make any payment to, or sell, lease, transfer or
otherwise dispose of any of its Joint Venture Interests to, or except as set
forth on Exhibit D, enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
such Affiliate Transaction is on terms that are no less favorable to the Company
or the relevant Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Subsidiary with an unrelated
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Person or, if there is no such comparable transaction, on terms that are fair
and reasonable to the Company.
SECTION 4.10. LIENS.
The Company shall not, and shall not permit its Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien (other
than Permitted Liens) on any of the Joint Venture Interests, or any income or
profits therefrom or assign or convey any right to receive income therefrom
(except as provided under Permitted Liens).
SECTION 4.11. LIMITATION ON INDEBTEDNESS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness secured by any of the Collateral.
Notwithstanding the foregoing, the Company and its Subsidiaries may
incur the following (each of which shall be given independent effect):
(a) Indebtedness of the Company under the Notes and this
Indenture;
(b) Permitted Working Capital Indebtedness of the Company and
its Subsidiaries;
(c) Existing Indebtedness including such Indebtedness
contemplated under the Plan of Reorganization;
(d) Capital Expenditure Indebtedness, Capital Lease
Obligations and purchase money Indebtedness of the Company and its
Subsidiaries;
(e) Indebtedness of the Company representing guarantees of
Indebtedness incurred by one of its Subsidiaries pursuant to, and in
compliance with, another provision of this covenant;
(f) Indebtedness under the Term Loan Agreement;
(g) any Permitted Refinancing Indebtedness representing a
replacement, renewal, refinancing or extension of Indebtedness
permitted under this covenant;
(h) Hedging Obligations; and
(i) Indebtedness under the Series B Indenture.
In the event that the incurrence of any Indebtedness would be permitted
hereunder, the Company may designate (in the form of an officer's certificate
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delivered to the Trustee) the particular provision of this Indenture pursuant to
which it is incurring such Indebtedness.
SECTION 4.12. SUBROGATION RIGHTS.
The Company hereby covenants not to, directly or indirectly, enter
into, incur or permit to exist post-confirmation any agreement or other
arrangement that prohibits, restricts or imposes any condition upon the right or
ability of the Trustee for the benefit of the Holders becoming subrogated to, or
otherwise succeeding to, the status of the beneficiary of the first Lien on the
Joint Venture Interests, upon the payment in full of the Indebtedness under the
Term Loan Agreement and any Permitted Refinancing Indebtedness in respect
thereof.
SECTION 4.13. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
SUBSIDIARIES.
The Company shall not, and shall not permit any Subsidiary to, create
or cause any contractual restriction (except those contained in agreements
relating to Indebtedness permitted hereunder) on the right of any Subsidiary to
pay dividends in cash or otherwise, or make any other distributions on or in
respect of, its Capital Stock, or pay any Indebtedness or other obligation owed,
to the Company or any other Subsidiary.
SECTION 4.14. RESTRICTED PAYMENTS.
Neither WPC nor the Company shall (a) declare or pay any dividend or
make any other payment or distribution on account of WPC's Equity Interests or
to the holders of WPC's Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests of WPC); or (b) purchase,
redeem or otherwise acquire or retire for value any Equity Interests of the
Company (other than any such Equity Interests owned by WPC, the Company or any
Subsidiary of the Company) (all such payments and other actions set forth in
clauses (a) and (b) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such Restricted
Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(ii) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
after the date of this Indenture, is less than the sum of (A) 50% of the
Consolidated Net Income of WPC for the period (taken as one accounting period)
commencing [June 30, 2003] to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate Net
Cash Proceeds received by WPC and the Company from the issue or sale since the
date of this Indenture of Equity Interests of WPC and the Company or of debt
securities of the Company that have been converted into such Equity
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Interests (other than any such Equity Interests or convertible debt securities
sold to a Subsidiary of the Company), plus (C) $10 million.
The foregoing provisions will not prohibit (a) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (b) the redemption, repurchase, retirement, defeasance or other
acquisition of any Equity Interests of WPC or the Company in exchange for, or
out of the Net Cash Proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Company) of, other Equity Interests of WPC or the Company;
(c) the repurchase, redemption or other acquisition or retirement for value of
any Equity Interest of WPC or the Company held by any employee, director or
consultant of WPC, the Company or any of its Subsidiaries upon the death,
disability, or termination of employment of such employee, director or
consultant or in accordance with the terms of any incentive stock plan; and (d)
any distributions by the Company to pay ordinary operating expenses of WPC,
including, without limitation, directors' fees, franchise taxes, audit and legal
fees, filing fees, indemnity and insurance costs and other ordinary course
expenses.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Subsidiary;
provided, however, that the Company shall not be required to preserve the
existence of any of its Subsidiaries, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole.
SECTION 4.16. PAYMENT FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation statement documents relating to such
consent, waiver or agreement.
ARTICLE V.
SUCCESSORS
SECTION 5.1. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
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convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (a) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia, (b) the entity or Person formed by or surviving any such consolidation
or merger (if other than the Company) (the "Surviving Person") or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company
under the Notes and the Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee, (c) immediately after such transaction
no Default or Event of Default exists, and (d) the Company shall deliver, or
cause to be delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officer's Certificate and an Opinion of Counsel,
each stating that such transaction and the supplemental indenture, if any, and
the new security documents, if any, in respect thereto comply with this Section
5.1 and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.1 hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest
on the Notes, and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal
of the Notes when the same becomes due and payable at maturity, upon
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redemption (including in connection with an offer to purchase) or
otherwise;
(c) the Company fails to comply with any of the provisions of
Sections 4.7 through 4.14 or Article V hereof;
(d) the Company fails to observe or perform any other
covenant, representation warranty or other agreement in this Indenture
or the Notes for 30 days after notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Notes then outstanding of such failure;
(e) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Subsidiaries), whether such Indebtedness or
guarantee now exists, or is created after the date of this Indenture,
which default (i) is caused by a failure to pay principal at maturity
on such Indebtedness prior to the expiration of any grace period
provided in such Indebtedness (a "Payment Default"), or (ii) results in
the acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $10.0 million or more;
(f) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such judgment or
judgments are not paid or discharged for a period (during which
execution shall not be effectively stayed by reason of pending appeal
or otherwise) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $10.0 million;
(g) the failure of any Guarantor to perform any covenant set
forth in its Subsidiary Guarantee or the repudiation by any Guarantor
of its obligations under its Subsidiary Guarantee or the
unenforceability of any Subsidiary Guarantee against a Guarantor for
any reason, unless, in each such case, such Guarantor and its
Subsidiaries have no Indebtedness outstanding at such time or at any
time thereafter;
(h) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
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(iii) consents to the appointment of a custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they become
due; or
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case;
(ii) appoints a Custodian of the Company or any of
its Significant Subsidiaries or for all or substantially all
of the property of the Company or any of its Significant
Subsidiaries; or
(iii) orders the liquidation of the Company or any of
its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; provided, however, that if the entry of such order or
decree is appealed and 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.
(j) the Subsidiary Guarantees provided by the Guarantors that
individually or in the aggregate would constitute a Significant
Subsidiary cease to be in full force and effect (other than in
accordance with the terms of such Subsidiary Guarantees) or Guarantors
that would individually or in the aggregate constitute a Significant
Subsidiary deny or disaffirm their obligations under their Subsidiary
Guarantees (other than by reason of the release of a Guarantor in
accordance with the terms of this Indenture);
(k) (A) the Lien(s) created by the Pledge Agreement cease(s)
to constitute valid and perfected Lien(s) on, and security interest in,
the Joint Venture Interests (other than in accordance with the terms of
the Pledge Agreement and this Indenture) in favor of the Collateral
Trustee for the benefit of the Holders (and the other Secured Parties),
free and clear of all other Liens (other than Permitted Liens), or (B)
the Pledge Agreement shall for whatever reason be terminated or cease
to be in full force and effect (other than in accordance with the terms
of the Pledge Agreement and this Indenture), if, in either case, such
default continues for 30 days after notice, or the enforceability
thereof shall be contested by the Company.
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SECTION 6.2. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (h) or (i) of Section
6.1 hereof occurs all outstanding Notes shall be due and payable immediately
without further action or notice. The Holders of a majority in aggregate
principal amount of the then outstanding Notes by written notice to the Trustee
may on behalf of all of the Holders rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal or interest that has
become due solely because of the 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 to collect the payment of principal of and interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of all
of the Notes waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of the
principal of or interest on the Notes (including in connection with an offer to
purchase); provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Notes may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration in accordance with Section 6.2. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.5. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
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exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in Personal liability.
SECTION 6.6. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.7. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of and interest on the Note, on
or after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest, and such further amount as shall
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be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.
SECTION 6.11. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
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First: to the Trustee, its agents and attorneys for amounts due under
Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the Trustee's
costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for
principal and interest ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.11.
SECTION 6.12. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII.
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(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 furnished to
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the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities 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;
(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; and
(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 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
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(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any Guarantor
or any Affiliate of the Company with the same rights it would have if it were
not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it 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 or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 30 days after it occurs.
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SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each [___] 15 beginning with the [____] 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Sections 3.13(b)(1) and 313(b)(2). The Trustee shall
also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company and the Guarantors shall indemnify the Trustee against any
and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.7) and defending itself against any claim
(whether asserted by the Company, any Guarantor or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, bad faith or willful misconduct.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company or the Guarantors of their obligations hereunder. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this Section
7.7 shall survive the satisfaction and discharge of this Indenture.
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To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(i) or (j) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property;
or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Xxxxxxx does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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If the Trustee, after written request by any Holder of a Note who has been
a Holder of a Note for at least six months, fails to comply with Section 7.10
hereof, such Holder of a Note may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER. ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA
Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creDITor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officer's Certificate, at any time, exercise its
rights
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under either Section 8.2 or 8.3 hereof with respect to all outstanding
Notes upon compliance with the conditions set forth below in this Article Eight.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be deemed to have discharged
its obligations with respect to all outstanding Notes, and each Guarantor shall
be deemed to have discharged its obligations with respect to its Guarantee, on
the date the conditions set forth in Section 8.4 below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, and each Guarantor shall be deemed to have
paid and discharged its Guarantee (which in each case shall thereafter be deemed
to be "outstanding" only for the purposes of Section 8.5 hereof and the other
Sections of this Indenture referred to in (a) and (b) below) and to have
satisfied all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.4 hereof, and as more fully set forth in such Section, payments in
respect of the principal of and interest on such Notes when such payments are
due, (b) the Company's obligations with respect to such Notes under Sections
2.4, 2.7, 2.8, 2.9, 2.13 and 4.2 hereof, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (d) this Article Eight. Subject to compliance with this
Article Eight, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3 hereof.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be released from its
obligations under the covenants contained in Article 4 (other than those in
Sections 4.1, 4.2, 4.6 and 4.13) and Section 5.1 hereof on and after the date
the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply
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shall not constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.1 hereof of the option applicable to this Section 8.3 hereof,
subject to the satisfaction of the conditions set forth in Section 8.4 hereof,
Sections 6.1(c) through 6.1(g) hereof shall not constitute Events of Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars,
non-callable U.S. Government Obligations, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of
and interest on the outstanding Notes on the stated maturity thereof or on
the applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(b) in the case of an election under Section 8.2 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness, all or a portion of
the proceeds of which will be used to defease the Notes pursuant to this
Article 8 concurrently with such incurrence or within 30 days thereof);
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(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be based on such solvency certificates or solvency
opinions as counsel deems necessary or appropriate) to the effect that the
trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee pursuant
to Section 8.4 hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable U.S.
Government Obligations deposited pursuant to Section 8.4 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.4 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under
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Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.6. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, or interest on any
Note and remaining unclaimed for two years after such principal, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter, as a secured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may be; provided, however, that, if the Company makes any payment of
principal of or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.2 of this Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture, the Notes or the Pledge
Agreement without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
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(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Notes in the case of a merger or consolidation pursuant
to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Note;
(e) to comply with Section 10.2 hereof; or
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company and the Guarantors accompanied by
resolutions of the Boards of Directors of the Company and the Guarantors
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.2 hereof,
the Trustee shall join with the Company and the Guarantors in the execution of
any amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter
into such amended or supplemental Indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.2. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture, and consent to
amendments or supplements to the Pledge Agreement and the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for the Notes), and, subject to Sections 6.4 and 6.7 hereof, any existing
Default or compliance with any provision of this Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes).
Upon the request of the Company and the Guarantors accompanied by a
resolution of the Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
7.2 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in
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its discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.2 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.4 and 6.7 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter any of the provisions with respect to the redemption of the
Notes;
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal
of or interest on the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate principal amount
of the Notes and a waiver of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes (except as permitted in
clause (g) below);
(g) waive a redemption payment with respect to any Note; or
(h) make any change in the foregoing amendment and waiver
provisions.
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SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies 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 of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Xxxxxx's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
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 TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
and the Guarantors may not sign an amendment or supplemental indenture until
their Boards of Directors approve it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section 7.1)
shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE X.
SECURITY & GUARANTEE OF NOTES
SECTION 10.1. SECURITY OF NOTES.
(a) The Company shall concurrently with entering into this Indenture,
pledge the Joint Venture Interests pursuant to the Pledge Agreement to the
Collateral Trustee and grant to the Collateral Trustee and for the benefit of
the Holders, a perfected second priority security interest (subject only to the
Permitted Liens entitled to priority under applicable law) in all of the Joint
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Venture Interests owned by the Company, whether now owned or hereafter acquired,
junior only to the liens securing the obligations under the Term Loan Agreement
and Permitted Refinancing Indebtedness thereof, to secure the Company's and the
Guarantors' obligations to pay the principal of (and premium, if any) and
interest, if any, on the Notes in accordance with the terms of the Notes and
this Indenture and all other obligations of the Company thereunder.
(b) The Company shall furnish to the Trustee Opinions of Counsel as
required by the Trust Indenture Act with respect to indentures that are secured
by the mortgage or pledge of property, including Opinions of Counsel required
pursuant to Sections 314(b)(1) and 314(b)(2) of the TIA.
(c) The Company and the Guarantors shall otherwise comply with the
provisions of Section 314(d) of the TIA.
(d) Each Holder, by its acceptance of the Notes, agrees to all of the
terms and conditions of the Pledge Agreement, and authorizes and directs the
Trustee to instruct the Collateral Trustee to enter into and perform its
respective obligations, and exercise its respective rights under, the Pledge
Agreement in accordance therewith.
SECTION 10.2. SUBSIDIARY GUARANTEE.
Subject to Section 10.5 hereof, the Guarantors hereby, jointly and
severally, unconditionally guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes
held thereby and the Obligations of the Company hereunder and thereunder, that:
(a) the principal of and interest on the Notes will be promptly paid in full
when due, subject to any applicable grace period, whether at Stated Maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal (to
the extent permitted by law), interest on any interest, if any, and all other
payment Obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full and performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, the same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, subject to any applicable grace period, whether at
Stated Maturity, by acceleration, redemption or otherwise. Failing payment when
so due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under the Subsidiary Guarantees, and shall
entitle the Holders to accelerate the Obligations of the Guarantors hereunder in
the same manner and to the same extent as the Obligations of the Company. The
Guarantors hereby agree that their Obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or
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thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Subsidiary Guarantee will not be discharged except by
complete performance of the Obligations contained in the Notes and this
Indenture. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, or any Note Custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by the Company or any Guarantor to the Trustee
or such Holder, the Subsidiary Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect. The Subsidiary Guarantee shall
remain in full force and effect and continue to be effective should any petition
be filed by or against the Company for liquidation or reorganization, should the
Company become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Notes are pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on the Notes,
whether as a "voidable preference," "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Notes shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned. Each Guarantor agrees that it shall not be entitled to, and hereby
waives, any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby. Each Guarantor further agrees that, as between
the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (a) the maturity of the Obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of its Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed thereby, and (b) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantor for the purpose of its
Subsidiary Guarantee. The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Subsidiary Guarantees.
SECTION 10.3. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To evidence its Subsidiary Guarantee set forth in Section 10.1 hereof,
each Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form of Exhibit B hereto shall be endorsed by manual or
facsimile signature by an Officer of such Guarantor on each Note authenticated
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and delivered by the Trustee and that this Indenture shall be executed on behalf
of such Guarantor, by manual or facsimile signature, by an Officer of such
Guarantor.
After the date of this Indenture, if the Company or any or its
Subsidiaries shall acquire or create a Subsidiary, then the Company shall cause
such Subsidiary to execute a Subsidiary Guarantee substantially in the form of
Exhibit B. Such Subsidiary Guarantee shall be accompanied by a supplemental
indenture substantially in the form of Exhibit C, along with such other
opinions, certificates and documents required under this Indenture.
The Company shall deliver to the Trustee an Opinion of Counsel, in form
reasonably satisfactory to the Trustee, to the effect that (A) such supplemental
indenture, security documents (if applicable) and Subsidiary Guarantee have been
duly authorized, executed and delivered by such Subsidiary and (B) such
supplemental indenture, security documents (if applicable) and Subsidiary
Guarantee constitute legal, valid, binding and enforceable obligations of such
Subsidiary, subject to customary exceptions and carve-outs applicable to other
similar opinions.
Each Guarantor hereby agrees that its Subsidiary Guarantee shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Guarantors.
SECTION 10.4. GUARANTORS MAY CONSOLIDATE. ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture shall prohibit a merger between a Guarantor
and another Guarantor or a merger between a Guarantor and the Company.
(b) No Guarantor shall consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) or sell all or
substantially all of its assets to, another corporation, Person or entity
whether or not affiliated with such Guarantor unless, other than with
respect to a merger between a Guarantor and another Guarantor or a merger
between a Guarantor and the Company, (i) subject to the provisions of
Section 10.4 hereof, the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor, pursuant to a supplemental indenture
substantially in the form of Exhibit C hereto, under the Subsidiary
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Guarantee of such Guarantor and this Indenture; and (ii) immediately after
giving effect to such transaction, no Default or Event of Default exists.
(c) In the case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and
substantially in the form of Exhibit C hereto, of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for
the Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor Person thereupon may cause to be signed any or
all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All of the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under
this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the execution
hereof.
SECTION 10.5. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor, then such Guarantor
(in the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of such Guarantor) shall be released and
relieved of any obligations under its Subsidiary Guarantee. Upon delivery by the
Company to the Trustee of an Officer's Certificate to the effect of the
foregoing, the Trustee shall execute any documents reasonably required in order
to evidence the release of any Guarantor from its Obligation under its
Subsidiary Guarantee. Any Guarantor not released from its Obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
premium, if any, and interest on the Notes and for the other Obligations of such
Guarantor under this Indenture as provided in this Article 10.
SECTION 10.6. LIMITATION ON GUARANTOR LIABILITY.
For purposes hereof, each Guarantor's liability shall be limited to the
lesser of (a) the aggregate amount of the Obligations of the Company under the
Notes and this Indenture, and (b) the amount, if any, which would not have (i)
rendered such Guarantor "insolvent" (as such term is defined in the Bankruptcy
Law), or (ii) left such Guarantor with unreasonably small capital at the time
its Subsidiary Guarantee was entered into; provided, however, that, it will be a
presumption in any lawsuit or other proceeding in which a Guarantor is a party
that the amount guaranteed pursuant to the Subsidiary Guarantee is
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the amount set forth in clause (a) above unless any creditor, or representative
of creditors of such Guarantor, or debtor in possession or trustee in bankruptcy
of the Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of the Guarantor is the amount set forth in clause (b) above. 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 Subsidiary Guarantee not constitute a fraudulent transfer or conveyance
for purposes of any federal or state law. In making any determination as to
solvency or sufficiency of capital of a Guarantor in accordance with the
previous sentence, the right of such Guarantor to contribution from other
Guarantors, and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.
SECTION 10.7. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article 10 shall in each case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 10 in place of the Trustee.
SECTION 10.8. PRIORITY OF SUBSIDIARY GUARANTEE.
The Subsidiary Guarantees rank pari passu in right of payment with all
existing and future senior indebtedness of the Guarantors, including the
obligations of the Guarantors under the Revolving Credit Facility and any
successor credit facility. For purposes of the foregoing sentence, the Trustee
and the Holders shall have the right to receive and/or retain payments by any of
the Guarantors only at such times as they may receive and/or retain payments in
respect of the Notes pursuant to this Indenture, including this Article 10.
SECTION 10.9. RIGHTS UNDER THE SUBSIDIARY GUARANTEES.
(a) Until payment in full of the Notes, no payment by any Guarantor
pursuant to the provisions hereof shall entitle such Guarantor to any
payment out of the Collateral or give rise to any claim of the Guarantors
against the Trustee or any Holder.
(b) Each Guarantor waives notice of the issuance, sale and purchase
of the Notes and notice from the Trustee or the Holders from time to time
of any of the Notes of their acceptance and reliance on its Subsidiary
Guarantee.
(c) No set-off, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature (other than performance by
the Guarantors of their obligations hereunder) that any Guarantor
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may have or assert against the Trustee or any Holder shall be available
hereunder to such Guarantor.
(d) Each Guarantor shall pay all reasonable costs, expenses and
fees, including all reasonable attorneys' fees, that may be incurred by
the Trustee in enforcing or attempting to enforce the Subsidiary
Guarantees or protecting the rights of the Trustee or the Holder, if any,
in accordance with this Indenture.
SECTION 10.10. RELEASE OF COLLATERAL.
(a) Each Holder, by its acceptance of the Notes, agrees that the
Collateral Trustee may release Collateral from the Lien and security
interest created by the Pledge Agreement at any time or from time to time
in accordance with the provisions of the Pledge Agreement.
(b) To the extent applicable, the Company shall cause Section 313(b)
of the TIA relating to reports and Section 314(d) of the TIA relating to
the release of property or securities from the Lien and security interest
created by the Pledge Agreement and relating to the substitution therefor
of any property or securities to be subjected to the Lien and security
interest created by the Pledge Agreement, to be complied with. Any
certificate or opinion required by Section 314(d) of the TIA may be made
by an Officer of the Company except in cases where Section 314(d) of the
TIA requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or other
expert selected or approved by the Trustee and the Collateral Trustee in
the exercise of reasonable care.
SECTION 10.11. CERTIFICATES OF THE COMPANY.
If the Company desires release of any Collateral, the Company shall
furnish to the Trustee and the Collateral Trustee, prior to each such proposed
release of Collateral pursuant to the Pledge Agreement, (i) all documents
required by Section 314(d) of the TIA, and (ii) an Opinion of Counsel, which may
be rendered by internal counsel to the Company, to the effect that such
accompanying documents constitute all documents required by Section 314(d) of
the TIA. The Trustee may, to the extent permitted by Sections 7.1 and 7.2
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinions of Counsel.
SECTION 10.12. CERTIFICATES OF THE TRUSTEE.
If the Company desires to release Collateral in accordance with the Pledge
Agreement and has delivered or caused to be delivered the certificates and
documents required by the Pledge Agreement and Sections 10.10 and 10.11 hereof,
the Trustee shall, upon receipt of such documentation and based on the Opinion
of Counsel delivered pursuant to Section 10.1(b), deliver a certificate to the
Collateral Trustee confirming receipt of such documentation
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and Opinion of Counsel; provided, however, that so long as the Trustee is the
Collateral Trustee, the requirement that the Trustee deliver a certificate to
the Collateral Trustee shall not be applicable.
SECTION 10.13. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
PLEDGE AGREEMENT.
The Trustee is authorized to receive any funds for the benefit of the
Holders and to make further distributions of such funds to the Holders according
to the provisions of this Indenture.
SECTION 10.14. TERMINATION OF SECURITY INTEREST.
If the Trustee is not the Collateral Trustee, upon the cash payment in
full of all obligations of the Company and the Guarantors under this Indenture,
the Notes and the Subsidiary Guarantees, or upon defeasance in accordance with
this Indenture, the Trustee shall, at the request of the Company deliver a
certificate to the Collateral Trustee stating that such obligations have been
paid in full, and instruct the Collateral Trustee to release the Liens securing
the obligations of the Company hereunder pursuant to this Indenture and the
Pledge Agreement.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 11.2. NOTICES.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company or the Guarantors:
Wheeling-Pittsburgh Steel Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
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With copies to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxx, Esq.
If to the Trustee:
Bank One, N.A.
[__________]
Telecopier No.: [__________]
Attention: [________]
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if Personally
delivered; 5 Business Days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 11.3. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA
Section 312(c).
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SECTION 11.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.5 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.5 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
SECTION 11.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(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 are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 11.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture or for any claim
based on, in
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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 issuance of the Notes.
SECTION 11.8. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
SECTION 11.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and the
Notes shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes 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 11.12. COUNTERPART 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.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[SIGNATURES ON FOLLOWING PAGES]
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SIGNATURES
Dated as of [________], 2003
WHEELING-PITTSBURGH STEEL
CORPORATION
By:
---------------------------------
Name:
Title:
[Insert Subsidiaries]
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Dated as of [__________], 2003 BANK ONE, N.A., as trustee
By:
---------------------------------
Name:
Title:
Exhibit A
(Face of Note)
Senior Secured Notes due 2011
No. $
--------------
CUSIP NO.
WHEELING-PITTSBURGH STEEL CORPORATION
promises to pay to [_____________] or its registered assigns, the principal sum
of ____________ Dollars ($_____________) on ___________, 2011.
Interest Payment Dates: [_______] 15 and [ ] 15
Record Date: [_______] 1
Trustee: Bank One, N.A.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. This Note is issued pursuant
to, and subject to the terms of, the Indenture, dated as of ________, 2003,
among the Company, the Trustee and the Guarantors signatory thereto. The
Guarantors that are parties to the Indenture, and their successors under the
Indenture, have jointly and severally, fully and unconditionally, guaranteed the
payment of principal of, premium, if any, and interest on the Notes.
IN WITNESS WHEREOF, the Company has caused this Note to be signed by a
duly authorized officer.
WHEELING-PITTSBURGH STEEL CORPORATION
By:
-----------------------------------
Name:
Title:
Dated:_______, 2003
-2-
This is one of the Senior Secured Notes due 2011 described in the
within-mentioned Indenture.
Date:
Bank One, N.A., as Trustee
By:
-----------------------------------------
Authorized Signatory
(Reverse Side of Note)
Wheeling-Pittsburgh Steel Corporation Senior Secured Notes due 2011
(the "Notes")
[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 (00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.](1)/
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY 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
--------------
(1) This paragraph should be included only if the Note is issued in global form.
-3-
A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THIS INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO WHEELING-PITTSBURGH STEEL CORPORATION
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT THEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE.
1. Principal and Interest.
(a) Wheeling-Pittsburgh Steel Corporation, a Delaware corporation (the
"Company"), promises to pay the principal of this Note on the Maturity Date.
(b) The Company promises to pay interest on the principal amount of
this Note (including interest on the PIK Interest (as hereinafter defined)) at
the Current Interest Rate. The Company will pay interest semi-annually on the
15th day of each [ ] and [ ] of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of original
issuance (each an "Interest Period"). Interest on the Notes shall be payable in
cash on each
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Interest Payment Date from the Joint Venture Distributions received by the
Company during such Interest Period, provided, however, that (i) to the extent
any "event of default" has occurred and is continuing under the Term Loan
Agreement and/or the Revolving Credit Facility, or would result after giving
effect to such interest payment, such interest payment shall be payable as
follows: (A) interest in an amount equal to the Minimum Amount shall be payable
in cash, and (B) interest at a rate per annum equal to the PIK Interest Rate on
the PIK Principal Amount shall be payable as payment-in-kind interest ("PIK
Interest"), and (ii) to the extent the amount of Joint Venture Distributions
received by the Company during such Interest Period on or prior to the Interest
Payment Date (the "Available Amount") is insufficient to cover any such interest
payment, such interest payment shall be payable as follows: (A) interest at a
rate per annum equal to the Current Interest Rate on the Cash Pay Principal
Amount shall be payable in cash, and (B) interest at a rate per annum equal to
the PIK Interest Rate on the PIK Principal Amount, shall be payable as PIK
Interest. The amount of any such PIK Interest shall be paid through the
capitalization of such PIK Interest and shall be recorded through an appropriate
notation on the record attached hereto as Schedule II and made a part hereof
reflecting the accrual of such PIK Interest. On or promptly following each
Interest Payment Date, the Company shall deliver a copy of Schedule II to this
Note to the Holder of this Note.
For purposes of the calculations contained herein, the terms set forth
below shall have the following meanings:
"Cash Pay Principal Amount" shall mean an amount equal to (a) the
greater of (i) the Available Amount, and (ii) the Minimum Amount, divided by (b)
the Current Interest Rate multiplied by 2.
"Current Interest Rate" shall mean (x) the rate of 5% per annum from
________ __, 2003 until _________ __, 2008, and (y) the rate of 8% per annum
thereafter.
"Minimum Amount" shall mean an amount equal to the Principal Amount
multiplied by 2.00%.
PIK Principal Amount" shall mean an amount equal to the Principal
Amount minus Cash Pay Principal Amount.
"PIK Interest Rate" shall mean (x) the rate of 8% per annum during the
period commencing on _______ __, 2003 through ________ __, 2008, and (y) the
rate of 10% per annum thereafter.
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"Principal Amount" shall mean the entire principal amount of the Notes
outstanding at any time.
(c) The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is equal to the interest rate
then in effect on the Notes; it 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 on
demand at the same rate to the extent lawful. All Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
(d) The Notes will be subrogated to the first lien and other rights of
the lenders under the Term Loan Agreement and any refinancing to the scheduled
amount thereof in the joint venture interests constituting collateral for the
Notes to the extent of any funds from Wheeling Pittsburgh Corporation,
Wheeling-Nisshin and OCC transferred to the Company post-petition and to the
extent of any funds from these entities not utilized to pay the Notes
post-confirmation.
(e) The Company shall be permitted to make cash interest payments to
the holders of the Series B Notes in an amount greater than the Minimum Amount
(as defined in the Series B Notes) for any period only if the interest on the
Notes has been paid in full in cash for the corresponding Interest Period.
2. Method of Payment. The Company 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 [_______] 1, or [______] 1, immediately
preceding the Interest Payment Date, even if such Notes are cancelled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.15 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, interest, and premium, if any, at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, and premium,
if any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
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3. Paying Agent and Registrar. Initially, [____________], the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of _________ __, 2003 ("Indenture") among the Company, the Guarantors and the
Trustee. Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. The Notes are senior
secured obligations of the Company limited to $40,000,000 aggregate principal
amount, plus PIK Interest thereon, if any. To the extent permitted by applicable
law, in the event of any inconsistency between the terms of this Note and the
terms of the Indenture, the terms of the Indenture shall control.
5. Optional Redemption. The Company shall have the option to redeem the
Notes at any time and from time to time, in whole or in part, at a redemption
price of 100% of the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date.
6. Mandatory Redemption.
(a) Except as set forth in this Section 6 and in the Indenture, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
(b) For each semi-annual interest period of the Company ending after
the date hereof, the Company shall make a mandatory redemption payment in
respect of the principal amount of the Notes in an amount equal to Excess Cash
Flow for such interest period of the Company, each such mandatory redemption
payment to be due [___] days after the end of each such interest period.
(c) In the event that the Company sells, transfers, assigns or
otherwise disposes of any of its Joint Venture Interests in accordance with the
provisions of Section 4.8 of the Indenture, then the Company shall make a
mandatory redemption payment in respect of the principal amount of the Notes in
an amount equal to the Net Proceeds received in respect of such disposition
within 60 days after such disposition.
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7. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes during a period of 15 days before
the day of mailing a notice of redemption of Notes selected for redemption under
Section 3.3 of the Indenture and ending at the close of business on the day of
such mailing or during the period between a record date and the corresponding
Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA.
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11. Defaults and Remedies. Events of Default include: (a) default for
30 days in the payment when due of interest on the Notes; (b) default in payment
when due of the principal of the Notes; (c) failure by the Company to comply
with Sections 4.7 through 4.14 and Article V of the Indenture; (d) failure by
the Company for 30 days after notice to comply with any covenant, representation
or warranty or other agreements in the Indenture or the Notes; (e) default under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Subsidiaries), whether such Indebtedness or guarantee
now exists or is created after the date of the Indenture, which default (i) is
caused by a failure to pay principal of or premium or interest on such
Indebtedness prior to the expiration of any grace period provided in such
Indebtedness (a "Payment Default"), or (ii) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates [$10.0] million or more; (f)
failure by the Company or any of its Subsidiaries to pay final judgments
aggregating in excess of [$10.0] million, which judgments are not paid,
discharged or stayed for a period of 60 days; (g) failure by any Guarantor to
perform any covenant set forth in its Subsidiary Guarantee, or the repudiation
by any Guarantor of its obligations under its Subsidiary Guarantee or the
unenforceability of any Subsidiary Guarantee against a Guarantor for any reason,
unless, in each such case, such Guarantor and its Subsidiaries have no
Indebtedness outstanding at such time or at any time thereafter; (h) certain
events of bankruptcy or insolvency with respect to the Company or any of its
Significant Subsidiaries; (i) the Subsidiary Guarantees provided by the
Guarantors that would constitute a Significant Subsidiary cease to be in full
force and effect or such Guarantors deny or disaffirm their obligations under
their Subsidiary Guarantees; and (j) (A) the Liens(s) created by the Pledge
Agreement cease(s) to constitute valid and perfected Lien(s) on and security
interests in the Joint Venture Interests or (B) the Pledge Agreement shall be
terminated or cease to be in full force and effect if, in either case, such
default continues for 30 days after notice or the enforceability thereof shall
be contested by the Company. If any Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the
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Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Holders
of a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.
12. Defeasance. The Notes are subject to defeasance upon the terms and
conditions specified in the Indenture.
13. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations-or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to
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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.
18. Guarantee. This Note is guaranteed by certain Subsidiaries of the
Company pursuant to Article 10 of the Indenture.
19. Governing Law. The internal law of the State of New York shall
govern and be used to construe this Note.
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The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Wheeling-Pittsburgh Steel Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
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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 Company. The agent may substitute
another to act for him.
Date:___________________
Your Signature:
------------------------
(Sign exactly as your name appears on the face of this
Note)
Signature Guarantee:
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SCHEDULE I
SCHEDULE OF EXCHANGES OF NOTES(2)/_____
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NOTE FOR OTHER NOTES HAVE BEEN
MADE:
Date of Amount of Amount of Principal Signature of
Exchange decrease in increase in Amount of authorized
-------- Principal Principal this Global officer of
Amount of this Amount of this Note Trustee or Note
Global Note Global Note, following Custodian
------------ ----------- such decrease ---------
(or increase)
---------
(2) This should be included only if the Note is issued in global form.
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SCHEDULE II
SCHEDULE OF PIK INTEREST
THE FOLLOWING AMOUNTS OF PIK INTEREST HAVE BEEN CAPITALIZED:
Signature of Authorized
Officer of Trustee or Note
Date Amount of PIK Interest Custodian
---- ---------------------- ---------
