1
Exhibit 4.1
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AMERISTEEL CORPORATION
Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN
Subsidiary Guarantors
and
STATE STREET BANK AND TRUST COMPANY
Trustee
____________________
INDENTURE
Dated as of April 3, 1998
_____________________
$130,000,000
8 3/4% Senior Notes Due 2008
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2
AMERISTEEL CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF APRIL 3, 1998
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
Section 312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008(a)
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
Section 316(a)(last
sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105(d)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
3
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TABLE OF CONTENTS
PAGE
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Acquired Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Asset Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Atlas Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bank Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Company Request or Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Consolidated Adjusted Net Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Consolidated EBITDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Consolidated Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
----------------------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Indenture.
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PAGE
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Disinterested Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Disqualified Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exchange Offer Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Existing Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Federal Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Fixed Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Fixed Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
FLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Generally Accepted Accounting Principles or GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Hedging Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Kyoei Steel Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Net Cash Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Non-U.S. Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Non-U.S. Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Note Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Permitted Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Permitted Refinancing Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Predecessor Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Public Equity Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Purchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
QIB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Qualified Equity Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Qualified Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Refinancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Register and Note Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Regulation S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Revolving Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sale and Leaseback Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Shelf Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Special Dividend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Subordinated Intercompany Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Technical Assistance Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Trade Loan Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Treasury Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Weighted Average Life to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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Wholly Owned Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 102. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 105. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 106. Notices, etc., to Trustee, Company and Subsidiary Guarantors . . . . . . . . . . . . . . . . . 24
SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 114. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 202. Restrictive Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 304. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 32
SECTION 306. Book-Entry Provisions for Global Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 307. Special Transfer Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 309. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 310. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 311. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 312. Issuance of Additional Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 313. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 45
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 505. Trustee May Enforce Claims Without Possession of Notes . . . . . . . . . . . . . . . . . . . . 47
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . 48
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Notes . . . . . . . . . . . . . . . . . . 52
SECTION 604. May Hold Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8
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PAGE
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 609. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 610. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 55
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY
AND SUBSIDIARY GUARANTORS
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . 57
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND NOTE GUARANTEES
SECTION 901. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 902. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 906. Reference in Notes to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE TEN
COVENANTS
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PAGE
SECTION 1001. Payment of Principal, Premium, if any, and Interest . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1003. Money for Note Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1005. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1008. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1009. [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1010. Limitation on Indebtedness of Issuance of Disqualified Stock . . . . . . . . . . . . . . . . 66
SECTION 1011. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1012. Limitation on Issuances and Sales of Capital Stock and Preferred Stock of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1013. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1014. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1015. Purchase of Notes upon a Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1016. Limitation on Certain Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1017. Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1018. Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1019. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1020. Payment for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1021. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries . . . . . . . . . . . . . 81
SECTION 1022. Line of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1023. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1102. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1103. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1104. Selection by Trustee of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1107. Notes Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1108. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
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PAGE
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . 85
SECTION 1202. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1203. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1204. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1206. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Note Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 1302. Execution and Delivery of Note Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 1303. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1304. Seniority of Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1305. Limitation of Subsidiary Guarantor's Liability . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1306. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1307. Release of a Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 1308. Subsidiary Guarantors May Consolidate, etc. on Certain Terms . . . . . . . . . . . . . . . . 93
SECTION 1309. Benefits Acknowledged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 1310. Issuance of Guarantees by Certain New Restricted Subsidiaries . . . . . . . . . . . . . . . . 93
Exhibit A - Form of Note
Exhibit B - Form of Note Guarantee
Exhibit C - Form of Letter to Be Delivered By Institutional Accredited Investors
Exhibit D- Form of Letter to Be Delivered in Connection with Transfers Pursuant to Regulation S
11
INDENTURE, dated as of April 3, 1998 among AmeriSteel
Corporation, a corporation duly organized and existing under the laws of the
State of Florida (herein called the "Company"), the Subsidiary Guarantors (as
hereinafter defined) and State Street Bank and Trust Company, a trust company
duly organized and existing under the laws of the Commonwealth of
Massachusetts, trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issue of
8 3/4% Senior Notes Due 2008 (herein called the "Initial Notes"), and 8 3/4%
Series B Senior Notes Due 2008 (the "Exchange Notes" and, together with the
Initial Notes, the "Notes") of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.
Each of the Subsidiary Guarantors has duly authorized its
guarantee of the Notes, and to provide therefor each of them has duly
authorized the execution and delivery of this Indenture.
Upon the issuance of the Exchange Notes, if any, or the
effectiveness of the Shelf Registration Statement (as defined herein), this
Indenture will be subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be part of this Indenture and will, to the
extent applicable, be governed by such provisions.
The Company has also duly authorized the creation of up to
$130,000,000 aggregate principal amount of Additional Notes to be issued from
time to time having identical terms and conditions to the Notes offered hereby.
All things necessary have been done to make the Notes, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company and the Subsidiary Guarantors, each
in accordance with their respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction"
and "self-liquidating paper", as used in TIA Section 311, will have
the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Two, Eight, Ten and
Twelve, are defined in those Articles.
"Acquired Indebtedness" means Indebtedness of a person (a)
existing at the time such person is merged with or into the Company or becomes
a Subsidiary or (b) assumed in connection with the acquisition of assets from
such person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Notes" has the meaning set forth in Section 312.
"Affiliate" means, with respect to any specified person, (a)
any other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person or (b) any other
person that owns, directly or indirectly, 5% or
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3
more of such specified person's Capital Stock or any executive officer or
director of any such specified person or other person or, with respect to any
natural person, any person having a relationship with such person by blood,
marriage or adoption not more remote than first cousin. For the purposes of
this definition, "control", when used with respect to any specified person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Asset Sale" means the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of merger,
consolidation or similar arrangement) (collectively, a "transfer") by the
Company or any Restricted Subsidiary other than in the ordinary course of
business, whether in a single transaction or a series of related transactions.
For the purposes of this definition, the term "Asset Sale" does not include any
transfer of properties or assets (i) that is governed by Article Eight, (ii)
between or among the Company and its Restricted Subsidiaries pursuant to
transactions that do not violate any other provision of this Indenture, (iii)
representing obsolete or permanently retired equipment and facilities, (iv) to
an Unrestricted Subsidiary, if permitted by Section 1011, (v) that are being
held for sale, as reflected in the Company's financial statements as of
December 31, 1997 or (vi) the gross proceeds of which (exclusive of
indemnities) do not exceed $1 million for any particular item or $3 million in
the aggregate for any fiscal year.
"Atlas Disposition" means the sale or other disposition of all
or substantially all of the assets of the Atlas Steel and Wire division of the
Company.
"Bank Credit Agreement" means a bank credit facility between
the Company and one or more bank lenders, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, which term will include the Revolving Credit Agreement,
as any such facility may be amended, modified, increased, renewed, refunded,
replaced, restated or refinanced from time to time.
"Banks" means the banks and other financial institutions that
from time to time are lenders under the Bank Credit Agreement.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or a Subsidiary
Guarantor, if the content so requires, to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Borrowing Base" means, as of any date, an amount equal to the
sum of (a) 80% of the face amount of all accounts receivable owned by the
Company and its Restricted Subsidiaries as of such date that are not more than
90 days past due, and (b) 60% of the book value of all inventory owned by the
Company and its Subsidiaries as of such date, all calculated on a consolidated
basis and in accordance with GAAP.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
"Capital Stock" of any person means any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated) of such person's equity interest (however
designated), whether now outstanding or issued after the Closing Date.
"Capitalized Lease Obligation" means, with respect to any
person, an obligation incurred or assumed under or in connection with any
capital lease of real or personal property that, in accordance with GAAP, has
been recorded as a capitalized lease.
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) other than Kyoei Steel
Ltd. and its Affiliates is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of more than 35% of the voting power of all classes of Voting Stock of
the Company;
(b) the Company, either individually or in conjunction
with one or more Subsidiaries, sells, assigns, conveys, transfers,
leases or otherwise disposes of, or the Subsidiaries sell, assign,
convey, transfer, lease or otherwise dispose of, all or substantially
all of the properties of the Company and the Subsidiaries, taken as a
whole (either in one transaction or a series of related transactions),
including Capital Stock of the Subsidiaries, to any person (other than
the Company or a Restricted Subsidiary);
(c) during any consecutive two-year period, individuals
who at the beginning of such period constituted the Board of Directors
of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of a majority of
the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease
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for any reason to constitute a majority of the Board of Directors of
the Company then in office; or
(d) the Company is liquidated or dissolved or adopts a
plan of liquidation or dissolution, other than in a transaction that
complies with Article Eight.
"Closing Date" means the date on which the Notes are
originally issued under this Indenture.
"Common Stock" means the Company's shares of Class A Common
Stock, par value $.01 per share, and the Company's shares of Class B Common
Stock, par value $.01 per share.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person will have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" will mean such successor Person.
"Company Request or Company Order" means a written request or
order signed in the name of the Company by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Adjusted Net Income" means, for any period, the
net income (or net loss) of the Company and its Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP,
adjusted to the extent included in calculating such net income or loss by
excluding
(a) any net after-tax extraordinary gains or losses (less
all fees and expenses relating thereto),
(b) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to Asset Sales,
(c) the portion of net income (or loss) of any person
(other than the Company or a Restricted Subsidiary), including
Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to the
Company or any Restricted Subsidiary in cash during such period,
(d) solely for purposes of Section 1011, the net income
(or loss) of any person combined with the Company or any Restricted
Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination, and
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6
(e) the net income (but not the net loss) of any
Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary is at
the date of determination restricted, directly or indirectly, except
to the extent that such net income is actually paid to the Company or
a Restricted Subsidiary thereof by loans, advances, intercompany
transfers, principal repayments or otherwise;
provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated Adjusted Net Income will be reduced (to the extent not
otherwise reduced in accordance with GAAP) by an amount equal to (A) the amount
of the Consolidated Adjusted Net Income otherwise attributable to such
Restricted Subsidiary multiplied by (B) the quotient of (1) the number of
shares of outstanding common stock of such Restricted Subsidiary not owned on
the last day of such period by the Company or any of its Restricted
Subsidiaries divided by (2) the total number of shares of outstanding common
stock of such Restricted Subsidiary on the last day of such period.
"Consolidated EBITDA" means, for any period, the sum of,
without duplication, Consolidated Adjusted Net Income for such period, plus
(or, in the case of clause (d) below, plus or minus) the following items to the
extent included in computing Consolidated Adjusted Net Income for such period
(a) Fixed Charges for such period, plus
(b) the provision for federal, state, local and foreign
income taxes of the Company and its Restricted Subsidiaries for such
period, plus
(c) the aggregate depreciation and amortization expense
of the Company and its Restricted Subsidiaries for such period, plus
(d) any other non-cash charges for such period, and minus
non-cash credits for such period, other than non-cash charges or
credits resulting from changes in prepaid assets or accrued
liabilities in the ordinary course of business;
provided that fixed charges, income tax expense, depreciation and amortization
expense and non-cash charges and credits of a Restricted Subsidiary will be
included in Consolidated EBITDA only to the extent (and in the same proportion)
that the net income of such Subsidiary was included in calculating Consolidated
Adjusted Net Income for such period.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity of the Company and its Restricted Subsidiaries as set
forth on the most recently available quarterly or annual consolidated balance
sheet of the Company and its Restricted
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Subsidiaries, less any amounts attributable to Disqualified Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of
treasury stock and the principal amount of any promissory notes receivable from
the sale of the Capital Stock of the Company or any of its Restricted
Subsidiaries and less to the extent included in calculating such stockholders'
equity of the Company and its Restricted Subsidiaries, the stockholders' equity
attributable to Unrestricted Subsidiaries, each item to be determined in
conformity with GAAP (excluding the effects of foreign currency adjustments
under Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 52).
"Consolidated Tangible Assets" means, at any date of
determination, the total assets, less goodwill and other intangibles (other
than patents, trademarks, copyrights, licenses and other intellectual
property), shown on the balance sheet of the Company and its Restricted
Subsidiaries as of the most recent date for which such a balance sheet is
available, determined on a consolidated basis in accordance with GAAP less all
write-ups (other than write-ups in connection with acquisitions) subsequent to
the date of this Indenture in the book value of any asset (except any such
intangible assets) owned by the Company or any of its Restricted Subsidiaries.
At December 31, 1997, on a pro forma basis giving effect to the Refinancing,
the Consolidated Tangible Assets of the Company were approximately $453
million.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business will be administered, which office at the date of execution of this
Indenture is located at Xxxxxxx Square, 000 Xxxxxx Xxxxxx, 00xx xxxxx,
Xxxxxxxx, XX 00000, except that with respect to presentation of Notes for
payment or for registration of transfer or exchange, such term will mean the
office or agency of the Trustee at which, at any particular time, its corporate
trust and agency business will be conducted.
"Corporation" includes corporations, associations, companies
and business trusts.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 309.
"Depositary" means The Depository Trust Company, its nominees
and successors.
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board of
Directors is required to deliver a resolution of the Board of Directors, to
make a finding or otherwise take action under this Indenture, a member
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8
of the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Disqualified Stock" means any class or series of Capital
Stock that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise
(i) is or upon the happening of an event or passage of
time would be, required to be redeemed prior to the final Stated
Maturity of the Notes,
(ii) is redeemable at the option of the Holder thereof, at
any time prior to such final Stated Maturity or
(iii) at the option of the Holder thereof is convertible
into or exchangeable for debt securities at any time prior to such
final Stated Maturity;
provided that any Capital Stock that would not constitute Disqualified Stock
but for provisions therein giving Holders thereof the right to cause the issuer
thereof to repurchase or redeem such Capital Stock upon the occurrence of an
"asset sale" or "change of control" occurring prior to the Stated Maturity of
the Notes will not constitute Disqualified Stock if the "asset sale" or "change
of control" provisions applicable to such Capital Stock are no more favorable
to the Holders of such Capital Stock than the provisions described under
Section 1015 and Section 1016 of this Indenture and such Capital Stock
specifically provides that the issuer will not repurchase or redeem any such
stock pursuant to such provision prior to the Company's repurchase of such
Notes as are required to be repurchased pursuant to the provisions described
under Section 1015 and Section 1016 of this Indenture.
"Equity Investment" means the March 26, 1998 sale of 454,545
shares of the Company's Class B Common Stock to an institutional investor for
$10.0 million.
"Equity Ownership Plan" means the Company's Equity Ownership
Plan, effective as of April 1, 1995, as in effect on the Closing Date.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the exchange offer that may be effected
pursuant to the Registration Rights Agreement.
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"Exchange Offer Registration Statement" means the Exchange
Offer Registration Statement as defined in the Registration Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under the Bank Credit
Agreement) in existence on the date of this Indenture, until such amounts are
repaid, including but not limited to the Industrial Revenue Bonds.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"First Mortgage Notes" means the Company's 11 1/2% First
Mortgage Notes due December 15, 2000.
"Fixed Assets" means, at any date of determination, property,
plant and equipment, including the property, plant and equipment portion of
assets held for sale (as reflected in the Company's financial statements as of
the most recent date for which such statements are available).
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of Consolidated EBITDA for such period to Fixed Charges for such period.
"Fixed Charges" means, for any period, without duplication,
the sum of (a) the amount that, in conformity with GAAP, would be set forth
opposite the caption "interest expense" (or any like caption) on a consolidated
statement of operations of the Company and its Restricted Subsidiaries for such
period, including, without limitation,
(i) amortization of debt discount,
(ii) the net cost of interest rate contracts (including
amortization of discounts),
(iii) the interest portion of any deferred payment
obligation,
(iv) amortization of debt issuance costs and
(v) the interest component of Capitalized Lease
Obligations,
(b) cash dividends paid on Preferred Stock and Disqualified Stock by the
Company and any Restricted Subsidiary (to any person other than the Company and
its Restricted Subsidiaries), computed on a tax effected basis, and (c) all
interest on any Indebtedness of any person
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guaranteed by the Company or any of its Restricted Subsidiaries or unsecured by
a lien on the assets of the Company or any of its Restricted Subsidiaries;
provided, however, that Fixed Charges will not include (i) any gain or loss
from extinguishment of debt, including the write-off of debt issuance costs,
and (ii) the fixed charges of a Restricted Subsidiary to the extent (and in the
same proportion) that the net income of such Subsidiary was excluded in
calculating Consolidated Adjusted Net Income pursuant to clause (e) of the
definition thereof for such period.
"FLS" means FLS Holdings Inc., a wholly owned subsidiary of
Kyoei Steel Ltd.
"Generally Accepted Accounting Principles or GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that are in effect on the Closing Date.
"Guarantee" means a guarantee of the Notes on a senior basis.
"Guarantors" means, collectively, all Restricted Subsidiaries;
provided that any Person that becomes an Unrestricted Subsidiary in compliance
with Section 1011 will not be included in "Guarantors" after becoming an
Unrestricted Subsidiary.
"Hedging Obligations" means the obligations of any person
under (i) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (ii) other agreements or arrangements
designed to protect such person against fluctuations in interest rates or the
value of foreign currencies.
"Holder" means the person in whose name a Note is, at the time
of determination, registered on the Registrar's books.
"Indebtedness" means (without duplication), with respect to
any person, whether recourse is to all or a portion of the assets of such
person and whether or not contingent,
(a) every obligation of such person for money borrowed,
(b) every obligation of such person evidenced by bonds,
debentures, notes or other similar instruments,
(c) every reimbursement obligation of such person with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such person,
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(d) every obligation of such person issued or assumed as
the deferred purchase price of property or services,
(e) the attributable value of every Capitalized Lease
Obligation of such person,
(f) all Disqualified Stock of such person valued at its
maximum fixed repurchase price, plus accrued and unpaid dividends,
(g) all obligations of such person under or in respect of
Hedging Obligations, and
(h) every obligation of the type referred to in clauses
(a) through (g) of another person and all dividends of another person
the payment of which, in either case, such person has guaranteed.
For purposes of this definition, the "maximum fixed repurchase price" of any
Disqualified Stock that does not have a fixed repurchase price will be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness is required
to be determined pursuant to this Indenture, and if such price is based upon,
or measured by, the fair market value of such Disqualified Stock, such fair
market value will be determined in good faith by the board of directors of the
issuer of such Disqualified Stock. Notwithstanding the foregoing, trade
accounts payable and accrued liabilities arising in the ordinary course of
business and any liability for federal, state or local taxes or other taxes
owed by such person will not be considered Indebtedness for purposes of this
definition.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Industrial Revenue Bonds" means the Company's industrial
revenue bonds issued to construct certain of the Company's facilities
outstanding as of the Closing Date.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Investment" in any person means,
(i) directly or indirectly, any advance, loan or other
extension of credit (including, without limitation, by way of
guarantee or similar arrangement) or capital
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contribution to such person, the purchase or other acquisition of any
stock, bonds, notes, debentures or other securities issued by such
person, the acquisition (by purchase or otherwise) of all or
substantially all of the business or assets of such person, or the
making of any investment in such person,
(ii) the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary and
(iii) the fair market value of the Capital Stock (or any
other Investment), held by the Company or any of its Restricted
Subsidiaries, of (or in) any person that has ceased to be a Restricted
Subsidiary.
Investments exclude extensions of trade credit on commercially reasonable terms
in accordance with normal trade practices.
"Kyoei Steel Ltd." means Kyoei Steel Ltd. and its successors.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon, or with
respect to, any property of any kind, real or personal, movable or immovable,
now owned or hereafter acquired. A person will be deemed to own subject to a
Lien any property that such person has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement.
"Maturity", when used with respect to any Note, means the date
on which the principal of such Note or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed for, cash or cash equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of
(a) brokerage commissions and other fees and expenses
(including fees and expenses of legal counsel and investment banks)
related to such Asset Sale,
(b) provisions for all taxes payable as a result of such
Asset Sale,
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(c) payments made to retire Indebtedness where such
Indebtedness is secured by the assets that are the subject of such
Asset Sale,
(d) amounts required to be paid to any person (other than
the Company or any Restricted Subsidiary) owning a beneficial interest
in the assets that are subject to the Asset Sale, and
(e) appropriate amounts to be provided by the Company or
any Restricted Subsidiary, as the case may be, as a reserve required
in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the seller after such Asset Sale, including
pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Non-U.S. Person" means a Person that is not a "U.S. Person"
as defined in Regulation S.
"Non-U.S. Restricted Subsidiary" means a Restricted Subsidiary
that is not a U.S. Restricted Subsidiary.
"Note Guarantee" means with respect to each Subsidiary
Guarantor, the unconditional guarantee by such Subsidiary Guarantor, pursuant
to Article Thirteen.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Notes"
will include any Exchange Notes to be issued and exchanged for any Notes
pursuant to the Registration Rights Agreement and this Indenture. From and
after the issuance of any Additional Notes pursuant to Section 312 (but, not
for purposes of determining whether such issuance is permitted hereunder),
"Notes" will include such Additional Notes for purposes of this Indenture and
all Initial Notes, Exchange Notes and any such Additional Notes, will vote
together as one series of Notes under this Indenture.
"Offering" means the offering of the 8 3/4% Senior Notes Due
2008 by the Company.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel
acceptable to the Trustee, who may be counsel for the Company, including an
employee of the Company.
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"Outstanding", when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(a) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Notes; provided that, if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) Notes, except to the extent provided in Sections 1202
and 1203, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Twelve; and
(d) Notes which have been paid pursuant to Section 308 or
in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there will have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona
fide purchaser in whose hands the Notes are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee will be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which an officer in the
Corporate Trust office of the Trustee knows to be so owned will be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor.
"Paying Agent" means State Street Bank and Trust Company and
any successor (including the Company acting as Paying Agent) authorized by the
Company to pay the principal of (and premium, if any) or interest on any Notes
on behalf of the Company.
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"Permitted Investments" means any of the following:
(a) Investments in (i) securities with a maturity of one
year or less issued or directly and fully guaranteed or insured by the
United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support
thereof); (ii) certificates of deposit or acceptances with a maturity
of one year or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus of not
less than $200,000,000; (iii) any shares of money market mutual or
similar funds having assets in excess of $200,000,000; and (iv)
commercial paper with a maturity of one year or less issued by a
corporation that is not an Affiliate of the Company and is organized
under the laws of any state of the United States or the District of
Columbia and having a rating (A) from Xxxxx'x Investors Service, Inc.
of at least P-1 or (B) from Standard & Poor's Ratings Group of at
least A-1;
(b) Investments by the Company or any Wholly Owned
Restricted Subsidiary in another person, if as a result of such
Investment (i) such other person becomes a Restricted Subsidiary that
is a Subsidiary Guarantor or (ii) such other person is merged or
consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or a Restricted
Subsidiary that is a Subsidiary Guarantor;
(c) Investments by the Company or a Restricted Subsidiary
in the Company or a Subsidiary Guarantor;
(d) Investments in existence on the Closing Date;
(e) promissory notes received as a result of Asset Sales
permitted under Section 1016;
(f) loans or advances to officers, directors and
employees of the Company or any of its Restricted Subsidiaries made in
the ordinary course of business after the date of the initial issuance
of the Notes in an amount not to exceed $1 million in the aggregate at
any one time outstanding; and
(g) other Investments that do not exceed $5 million in
the aggregate at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted 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:
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(i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded plus
the lesser of the amount of any premium required to be paid in
connection with such refinancings pursuant to the terms of such
indebtedness or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing (plus the amount
of reasonable expenses incurred in connection therewith);
(ii) such Permitted Refinancing Indebtedness has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
(iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(iv) such Indebtedness is incurred either by the Company
or by the Restricted Subsidiary of the Company that is the obligor on
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
and provided further that "Permitted Refinancing Indebtedness" will not be
permitted with respect to Existing Indebtedness comprising (x) the First
Mortgage Notes, (y) the Subordinated Intercompany Note (other than as described
in clause (g) of the second paragraph of Section 1011) or (z) clause (ix) of
the definition of "Permitted Indebtedness."
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 308 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note will be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any person, any and
all shares, interests, partnership interests, participation, rights in or other
equivalents (however designated) of such person's preferred or preference
stock, whether now outstanding or issued
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after the Closing Date, and including, without limitation, all classes and
series of preferred or preference stock of such person.
"Public Equity Offering" means an offer and sale of common
stock (which is Qualified Stock) of the Company pursuant to a registration
statement that has been declared effective by the Commission pursuant to the
Securities Act (other than a registration statement on Form S-8 or otherwise
relating to equity securities issuable under any employee benefit plan of the
Company).
"Purchase Date" means any Change of Control Payment Date.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Qualified Equity Interest" means any Qualified Stock and all
warrants, options or other rights to acquire Qualified Stock (but excluding any
debt security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any person means any and all Capital
Stock of such person, other than Disqualified Stock.
"Redemption Date", when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Refinancing" means
(i) the Offering,
(ii) the Equity Investment,
(iii) the redemption of the First Mortgage Notes; and
(iv) the repayment of $30 million of the Subordinated
Intercompany Note.
"Register and Note Registrar" have the respective meanings
specified in Section 305.
"Registrar" means State Street Bank and Trust Company and any
successor authorized by the Company to act as Registrar.
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"Registration Rights Agreement" means the Registration Rights
Agreement between the Company, the Subsidiary Guarantors and the Initial
Purchaser named therein, dated as of April 3, 1998 relating to the Notes.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the October 1 or April 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Revolving Credit Agreement" means the $140,000,000 Credit
Agreement dated as of June 9, 1995 among the Company, certain financial
institutions, The Bank of Tokyo, Ltd. and NationsBank of Florida, N.A., as
Issuing Banks and Co-Administrative Agents, and The Bank of Tokyo, Ltd., as
agent, as amended.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any transaction or
series of related transactions pursuant to which a person sells or transfers
any property or asset in connection with the leasing, or the resale against
installment payments, of such property or asset to the seller or transferor.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder.
"Shares in Success Plan" means the Company's stock
purchase/stock option Shares in Success Plan, dated as of July 1, 1995, as in
effect on the Closing Date.
"Short-Term Incentive Plan" means the Company's 1995
Short-Term Incentive Plan pursuant to which 48,836 shares of Class B Common
Stock were issued.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of
the Company that, together with its Subsidiaries, (a) for the most recent
fiscal year of the Company, accounted for more than 10% of the consolidated net
sales of the Company and its Subsidiaries, (b) as of the end of such fiscal
year, was the owner of more than 10% of the consolidated assets of the
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Company and its Restricted Subsidiaries, in the case of either (a) or (b), as
set forth on the most recently available consolidated financial statements of
the Company for such fiscal year or (c) was organized or acquired after the
beginning of such fiscal year and would have been a Significant Subsidiary if
it had been owned during such entire fiscal year.
"Special Dividend" means the $6.1 million dividend paid by the
Company in December 1997.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable and, when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness or any installment of interest
thereon is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
or a Subsidiary Guarantor that is subordinated in right of payment to the Notes
or the Subsidiary Guarantees issued by such Subsidiary Guarantor, as the case
may be; provided, however, that, for purposes of Section 1011, "Subordinated
Indebtedness" will not include the Subordinated Intercompany Note.
"Subordinated Intercompany Note" means the $50 million
subordinated note of the Company to FLS due December 31, 2002.
"Subsidiary" means any person a majority of the equity
ownership or Voting Stock of which is at the time owned, directly or
indirectly, by the Company and/or one or more other Subsidiaries of the
Company.
"Subsidiary Guarantor" means any Restricted Subsidiary that is
a party to a Note Guarantee pursuant to the terms of this Indenture.
"Technical Assistance Agreement" means the technical
assistance agreement by and between the Company and Kyoei Steel Ltd. which
became effective on April 1, 1997 and expires on March 31, 1999.
"Trade Loan Agreements" means any obligation for Indebtedness
owed to U.S. affiliates or agents of Japanese trading houses.
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"Treasury Rate" will be defined as the yield to maturity at
the time of computation of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) which has become publicly available at least two
Business Days prior to the date fixed for prepayment (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the then remaining Weighted Average Life to
Maturity of the Notes; provided, however, that if the Weighted Average Life to
Maturity of the Notes is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Rate
will be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the Weighted Average Life to
Maturity of the Notes is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year will be used.
"Trust Indenture Act or TIA" means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee will have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" will mean such successor Trustee.
"U.S. Government Obligations" means direct obligations of,
obligations fully guaranteed by, or participations in pools consisting of or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States
of America is pledged and which are not callable or redeemable at the option of
the issuer thereof.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary in accordance with Section 1017 and (b) any Subsidiary of an
Unrestricted Subsidiary.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the Holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any person (irrespective of whether or not, at the
time, stock of any other class or classes has, or might have, voting power by
reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, as of the date of
determination with respect to any Indebtedness or Disqualified Stock, the
quotient obtained by dividing (a) the sum of the products of (i) the number of
years from the date of determination to the date or dates of each successive
scheduled principal or liquidation value payment of such
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Indebtedness or Disqualified Stock, respectively, multiplied by (ii) the amount
of each such principal or liquidation value payment by (b) the sum of all such
principal or liquidation value payments.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares or shares of foreign Restricted Subsidiaries required to be
owned by foreign nationals pursuant to applicable law) of which are owned,
directly or indirectly, by the Company.
SECTION 102. Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, defined by reference in the Trust
Indenture Act to another statute or defined by a rule of the Commission and not
otherwise defined herein will have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Upon any application or request by the Company and the
Subsidiary Guarantors to the Trustee to take any action under any provision of
this Indenture, the Company and the Subsidiary Guarantors shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by
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any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) will include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(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 each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
The Company shall furnish to the Trustee from time to time a
list of the Significant Subsidiaries of the Company. The Trustee may
conclusively rely upon such list until another is provided.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company and/or
the Subsidiary Guarantors may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
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knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in Person or by agents
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the Acts of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held
by any Person, and the date of holding the same, shall be proved by the
Register.
(d) If the Company or any Subsidiary Guarantor shall
solicit from the Holders of Notes any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or any such
Subsidiary Guarantor (as the case may be), may, at its option, by or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company or any such Subsidiary
Guarantor (as the case may be) shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which
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shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than
the date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to be Holders for
the purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company and/or the Subsidiary Guarantors in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 106. Notices, etc., to Trustee, Company and
Subsidiary Guarantors.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust, or
(b) the Company by the Trustee, any Holder or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at 0000 X.
Xxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, or at any other address
previously furnished in writing to the Trustee or such Subsidiary
Guarantor (as the case may be) by the Company.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein
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expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to
a Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Subsidiary Guarantors shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. Separability Clause.
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 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Note Registrar and their
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successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Notes shall be governed by the law of
the State of New York. Upon the issuance of the Exchange Notes, if any, or the
effectiveness of the Shelf Registration Statement, this Indenture shall be
subject to the provisions of the Trust Indenture Act of 1939, as amended, that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date established for payment of Defaulted Interest pursuant to Section
309, Stated Maturity or Maturity with respect to any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of principal (or premium, if any) or interest need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Purchase Date established for payment of Defaulted Interest pursuant to Section
309, Stated Maturity or Maturity; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Purchase
Date established for payment of Defaulted Interest pursuant to Section 309,
Stated Maturity or Maturity, as the case may be, to the next succeeding
Business Day.
SECTION 114. 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, this
Indenture or the Note Guarantees or for any claim based on, in respect of, or
by reason of, such obligations of 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.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Initial Notes shall be known as the "8 3/4% Senior Notes
Due 2008" and the Exchange Notes shall be known as the "8 3/4% Series B Senior
Notes Due 2008", in each case,
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of the Company. The Notes and the Trustee's certificate of authentication
shall be in substantially the form annexed hereto as Exhibit A. The Notes may
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have letters, notations
or other marks of identification and such notations, legends or endorsements
required by law, stock exchange agreements to which the Company is subject or
usage. Any portion of the text of any Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Note. The
Company shall approve the form of the Notes and any notation, legend or
endorsement on the Notes. Each Note shall be dated the date of its
authentication.
The definitive Notes shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Notes, as evidenced
by their execution of such Notes.
The terms and provisions contained in the form of the Notes
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.
The Initial Notes offered and sold in reliance on Regulation S
will be represented by a single, permanent Global Note in definitive, fully
registered book-entry form (the "Offshore Global Note"), which will be
registered in the name of the Global Note Holder and deposited on behalf of the
purchasers of the Notes represented thereby with a custodian for the Global
Note Holder for credit to the representative accounts of the purchasers (or to
such other accounts as they may direct) at the Euroclear System ("Euroclear")
or Cedel Bank, societe anonyme ("Cedel Bank"). Prior to the 40th day after the
later of the commencement of the Offering and the Closing Date, interests in
the Offshore Global Note may only be held through Euroclear or Cedel Bank.
The Initial Notes offered and sold to "qualified institutional
buyers" ("QIBs") in reliance on Rule 144A under the Securities Act will be
represented by a single, permanent Global Note in definitive, fully registered
book-entry form, substantially in the form of Exhibit A (the "U.S. Global Note"
and, together with the Offshore Global Note, the "Global Notes"), which will be
registered in the name of the Global Note Holder and deposited on behalf of
purchasers of the Notes represented thereby with a custodian for the Global
Note Holder for credit to the respective accounts of the purchasers (or to such
other accounts as they may direct) at the Global Note Holder.
The Notes that were (i) originally issued to or transferred to
institutional "accredited investors" (as such term is defined in Rule
501(a)(1), (2), (3) and (7)) under the Securities Act who are not QIBs (the
"Non-Global Purchasers") or (ii) issued as described in
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Section 306 of this Indenture will be issued in registered, definitive,
certificated form, substantially in the form of Exhibit A (the "Certificated
Notes"). Upon the transfer to a QIB or in an offshore transaction under Rule
903 or Rule 904 under Regulation S of Certificated Notes initially issued to a
Non-Global Purchaser, such Certificated Notes may, unless the Global Notes have
previously been exchanged in whole for Certificated Notes, be exchanged for an
interest in a Global Note representing the principal amount of the Notes being
transferred upon delivery of appropriate certificates to the Trustee.
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SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Note is sold under an
effective Registration Statement or (ii) an Initial Note is exchanged for an
Exchange Note in connection with an effective Registration Statement, in each
case pursuant to the Registration Rights Agreement, each certificate
representing a Note shall contain a legend substantially to the following
effect (the "Private Placement Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AMERISTEEL
CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION
TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY
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OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT, THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Global Note, whether or not an Initial Note, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY OR SUCH OTHER 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 HEREON
IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE 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 AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF THIS INDENTURE.
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $130,000,000,
except for Notes authenticated and
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delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Section 304, 305, 306, 307, 308, 906, 1015, 1016 or
1108, pursuant to an Exchange Offer or pursuant to Section 312.
The Initial Notes shall be known and designated as the "8 3/4%
Senior Notes Due 2008" and the Exchange Notes shall be known and designated as
the "8 3/4% Series B Senior Notes Due 2008" of the Company. The Stated
Maturity of the Notes shall be April 15, 2008, and the Notes shall bear interest
at the rate of 8 3/4 per annum from April 3, 1998, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
payable semiannually on April 15 and October 15 in each year, commencing October
15, 1998, until the principal thereof is paid or duly provided for, to the
Person in whose name the Note (or any Predecessor Note) is registered at the
close of business on the October 1 or April 1 next preceding such Interest
Payment Date.
The principal of (and premium, if any), and interest on the
Notes shall be payable, and the Notes shall be exchangeable and transferable,
at the office or agency of the Company in The City of New York maintained for
such purposes, (which initially shall be the agency of the Trustee located at
00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 10006) or, at the option of the
Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear on the Register; provided that
all payments with respect to the Global Note and the Certificated Notes the
Holder of which have given wire transfer instructions to the Company shall be
required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof.
Notes that remain outstanding after the consummation of the
Exchange Offer and Exchange Notes issued in connection with the Exchange Offer
will be treated as a single class of securities under this Indenture.
The Notes shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman, its President or a Vice President. The signature of any of these
officers on the Notes may be manual or facsimile signatures of the present or
any future such authorized officer and may be imprinted or otherwise reproduced
on the Notes.
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Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Initial Notes executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Initial Notes directing the Trustee
to authenticate the Notes and certifying that all conditions precedent to the
issuance of Notes contained herein have been fully complied with, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Initial Notes. On Company Order, the Trustee shall authenticate for
original issue Exchange Notes in an aggregate principal amount not to exceed
the sum of $130,000,000 plus the aggregate principal amount of any Additional
Notes issued; provided that such Exchange Notes shall be issuable only upon the
valid surrender for cancellation of Initial Notes of a like aggregate principal
amount in accordance with an Exchange Offer pursuant to the Registration Rights
Agreement. In each case, the Trustee shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel of the Company that it may reasonably
request in connection with such authentication of Notes. Such order shall
specify the amount of Notes to be authenticated and the date on which the
original issue of Initial Notes or Exchange Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Notes authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Notes executed in the
name of the successor Person with such changes in phraseology and form as may
be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like
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principal amount; and the Trustee, upon Company Request of the successor
Person, shall authenticate and deliver Notes as specified in such request for
the purpose of such exchange. If Notes shall at any time be authenticated and
delivered in any new name of a successor Person pursuant to this Section in
exchange or substitution for or upon registration of transfer of any Notes,
such successor Person, at the option of the Holders but without expense to
them, shall provide for the exchange of all Notes at the time Outstanding for
Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.
If temporary Notes are issued, the Company shall cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 1002, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Register shall be in written form or
any other form capable of being converted into written form within a reasonable
time. At all reasonable times, the Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as the Note Registrar
("Note Registrar") for the purpose of registering Notes and transfers of Notes
as herein provided.
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Upon surrender for registration of transfer of any Note at the
office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange (including an exchange of Initial
Notes for Exchange Notes), the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive; provided that no exchange of Initial Notes for Exchange
Notes shall occur until an Exchange Offer Registration Statement shall have
been declared effective by the Commission and that the Initial Notes to be
exchanged for the Exchange Notes shall be cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Note Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment in certain circumstances of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Section 304,
906, 1015, 1016 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the selection of Notes to be redeemed under Sections
1104, 1015 and 1016 and ending at the close of business on the day of such
mailing of the relevant notice of redemption, 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.
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SECTION 306. Book-Entry Provisions for Global Note.
(a) The Global Note initially shall (i) be registered in
the name of Cede & Co., as nominee of the Depositary (such nominee being
referred to herein as the "Global Note Holder"), (ii) be deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for such
Depositary, and (iii) bear legends as set forth in Section 202.
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 shall 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. With respect to
any Global Note deposited with the Trustee as custodian for the Depositary for
credit to the respective accounts of beneficial owners (or to such other
accounts as they may direct) at Euroclear or Cedel, the provisions of the
"Operating Procedures of the Euroclear System" and the "Terms and Conditions
Governing Use of Euroclear", and the "Management Regulations" and "Instructions
to Participants" of Cedel, respectively, shall be applicable to such Global
Note.
(b) Transfers of the Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in the
Global Note may be transferred in accordance with the rules and procedures of
the Depositary and the provisions of Section 307. Beneficial owners may obtain
Certificated Notes in exchange for their beneficial interests in the Global
Note upon request in accordance with the Depositary's and the Registrar's
procedures. In addition, if (i) the Company notifies the Trustee in writing
that the Depositary is no longer willing or able to act as a depositary and the
Company is unable to locate a qualified successor within 90 days or (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of Notes in the form of Certificated Securities under this
Indenture then, upon surrender by the Global Note Holder of its Global Note,
Certificated Notes will be issued to each person that the Global Note Holder
and the Depositary identify as being the beneficial owner of the related Notes.
(c) In connection with any transfer of a portion of the
beneficial interest in the Global Note to beneficial owners pursuant to
subsection (b) of this Section, the Note Registrar shall reflect on its books
and records the date and a decrease in the principal amount of the Global Note
in an amount equal to the principal amount of the beneficial interest in the
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Global Note to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Certificated Notes of like tenor
and amount.
(d) Any Certificated Note delivered in exchange for an
interest in the Global Note pursuant to subsection (b) or subsection (c) of
this Section shall, except as otherwise provided by Section 307, bear the
applicable legend regarding transfer restrictions applicable to the
Certificated Note set forth in Section 202.
(e) The Holder of the 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.
SECTION 307. Special Transfer Provisions.
Unless and until (i) an Initial Note is sold under an
effective Registration Statement, or (ii) an Initial Note is exchanged for an
Exchange Note in connection with an effective Registration Statement, in each
case pursuant to the Registration Rights Agreement, the following provisions
shall apply:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the
registration of any proposed transfer of an Initial Note to any institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act) which is not a QIB (excluding Non-U.S.
Persons):
(i) The Registrar shall register the transfer of any
Initial Note, whether or not such Initial Note bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the original issue date of the Initial Notes or (y) the proposed
transferee has delivered to the Registrar a certificate substantially
in the form of Exhibit C hereto.
(ii) If the proposed transferor is an Agent Member holding
a beneficial interest in the Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of
the Global Note in an amount equal to the principal amount of the
beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver,
one or more Certificated Notes of like tenor and amount.
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(b) Transfers to QIBs. The following provisions
shall apply with respect to the registration of any proposed transfer of an
Initial Note to a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (i)
Certificated Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Initial Note stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form
of Initial Note stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Initial Note for its
own account or an account with respect to which it exercises sole
investment discretion and that it, or the Person on whose behalf it is
acting with respect to any such account, is a QIB within the meaning
of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A or (ii) an interest in the Certificated Notes,
the transfer of such interest may be effected only through the
book-entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and
the Initial Note to be transferred consists of Certificated Notes,
upon receipt by the Registrar of instructions given in accordance with
the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Note in an amount equal
to the principal amount of the Certificated Notes, as the case may be,
to be transferred, and the Trustee shall cancel the Certificated Note
so transferred.
(c) Transfers of Interests in the Offshore Global Note or
Certificated Notes to U.S. Persons. The following provisions shall apply with
respect to any transfer of interests in the Offshore Global Note or
Certificated Notes to U.S. Persons:
(i) prior to the removal of the Private Placement Legend
from an Offshore Global Note or Certificated Notes pursuant to Section
202, the Note Registrar shall refuse to register such transfer; and
(ii) after such removal pursuant to Section 202, the Note
Registrar shall register the transfer of any such Note without
requiring any additional certification.
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(d) Transfers to Non-U.S. Persons at Any Time.
The following provisions shall apply with respect to any transfer of an Initial
Note to a Non-U.S. Person:
(i) The Note Registrar shall register any proposed
transfer to any Non-U.S. Person if the Note to be transferred is a
Certificated Note or an interest in the U.S. Global Note, only upon
receipt of a certificate substantially in the form of Exhibit D from
the proposed transferor.
(ii) (a) If the proposed transferor in an Agent Member
holding a beneficial interest in the U.S. Global Note, upon receipt
by the Note Registrar of (x) the document required by paragraph (i)
above, and (y) instructions in accordance with the Depositary's and
the Note Registrar's procedures, the Note Registrar shall reflect on
its books and records the date and a decrease in the principal amount
at maturity of the U.S. Global Note in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Note to
be transferred, and (b) if the proposed transferor is an Agent Member,
upon receipt by the Note Registrar of instructions given in accordance
with the Depositary's and the Note Registrar's procedures, the Note
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Offshore Global Note in an
amount equal to the principal amount of the Certificated Note or the
U.S. Global Note, as the case may be, to be transferred, and the
Trustee shall cancel the Cerficated Note, if any, so transferred or
decrease the amount of the U.S. Global Note.
(e) Private Placement Legend. Upon the transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar shall deliver only Notes that bear the Private
Placement Legend unless either (i) the circumstances contemplated by paragraph
(a)(i)(x) of this Section 307 exist or (ii) there is delivered to the Registrar
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.
(f) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain until such time as no Notes remain
Outstanding copies of all letters, notices and other written communications
received pursuant to Section 306 or this Section 307. The Company shall have
the right to inspect and make copies of all such letters,
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notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
Each beneficial owner of an interest in a Senior Note agrees
to indemnify the Company and the trustee against any liability that may result
form the transfer, exchange or assignment by such beneficial owner of such
interest in violation of any provisions of this Indenture and/or applicable
United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or among Agent
Members or beneficial owners of interests in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee or the
Registrar, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time
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enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 309. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company in The City of New York maintained for such purposes
(which initially shall be the agency of the Trustee located at 00 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000) pursuant to Section 1002 or, at the
option of the Company, interest may be paid by check mailed to the address of
the Person entitled thereto pursuant to Section 310 as such address appears in
the Register; provided that all payments with respect to the Global Note and
Certificated Notes the holders of which have given wire transfer instructions
to the Trustee (or other Paying Agent) by the Regular Record Date shall be
required to be made by wire transfer of immediately available funds to the
accounts specified be the holders thereof.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by
virtue of having been such Holder, and such defaulted interest and (to the
extent lawful) interest on such defaulted interest at the rate borne by the
Notes (such defaulted interest and interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. 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,
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more
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than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date, and in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given in the manner provided for in Section 107,
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
If the Company shall be required to pay any additional
interest pursuant to the terms of the Registration Rights Agreement, it shall
deliver an Officer's Certificate to the Trustee setting forth the new interest
rate and the period for which such rate is applicable.
SECTION 310. Persons Deemed Owners.
Prior to the due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Sections 305 and 309) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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SECTION 311. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Notes previously
authenticated hereunder which the Company has not issued and sold, and all
Notes so delivered shall be promptly cancelled by the Trustee. If the Company
shall so acquire any of the Notes, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Notes
unless and until the same are surrendered to the Trustee for cancellation. No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Notes held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their disposal
delivered to the Company unless by Company Order the Company shall direct that
cancelled Notes be returned to it.
SECTION 312. Issuance of Additional Notes.
The Company may, subject to Article Ten of this Indenture,
issue up to $100,000,000 aggregate principal amount of Additional Notes having
identical terms and conditions to the Notes offered hereby. Any Additional
Notes will be part of the same issue as the Notes offered hereby and will vote
on all matters with the Notes offered hereby.
SECTION 313. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the request of the Company, this Indenture will cease to
be of further effect (except as to surviving rights of registration of transfer
or exchange of the Notes, as expressly provided for herein or pursuant hereto),
the Company and the Subsidiary Guarantors will be discharged from their
obligations under the Notes and the Note Guarantees and the
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Trustee, at the expense of the Company, will execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(a) either (i) all the Notes theretofore authenticated
and delivered (other than mutilated, destroyed, lost or stolen Notes
that have been replaced or paid and Notes that have been subject to
defeasance under Article Twelve) have been delivered to the Trustee
for cancellation or (ii) all Notes not theretofore delivered to the
Trustee for cancellation (A) have become due and payable, (B) will
become due and payable at maturity within one year or (C) are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, and the Company, in
the case of (A), (B) or (C) above, has irrevocably deposited or caused
to be deposited with the Trustee funds in trust for the purpose in an
amount sufficient to pay and discharge, without the need to reinvest
any proceeds thereof, the entire Indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any, on) and interest on the Notes to the date of
such deposit (in the case of Notes that have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all sums
payable under this Indenture by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided in this Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606 and,
if money shall have been deposited with the Trustee pursuant to subclause (ii)
of clause (a) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and of this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law. All money deposited pursuant to Section 401 remaining
after all payments to be made pursuant to
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this Article Four having been made, shall be returned to the person(s) which
provided such money or their designee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Note
when it becomes due and payable, and continuance of such default for a
period of 30 days;
(b) default in the payment of the principal of (or
premium, if any, on) any Note when due;
(c) failure to perform or comply with the provisions of
this Indenture as described in Sections 1010, 1011, 1015 and 1016;
(d) default in the performance, or breach, of any
covenant or agreement of the Company or any Subsidiary Guarantor
contained in this Indenture or in any Subsidiary Guarantee (other than
a default in the performance, or breach, of a covenant or agreement
that is specifically dealt with elsewhere herein), and continuance of
such default or breach for a period of 60 days after written notice
has been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Notes then Outstanding;
(e) (i) an event of default has occurred under any
mortgage, bond, indenture, loan agreement or other document evidencing
an issue of Indebtedness of the Company or any Restricted Subsidiary,
which issue has an aggregate outstanding principal amount of not less
than $5 million, and such default has resulted in such Indebtedness
becoming, whether by declaration or otherwise, due and payable prior
to the date on which it would otherwise become due and payable or (ii)
a default in any payment when due at final maturity of any such
Indebtedness;
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(f) failure by the Company or any of its Restricted
Subsidiaries to pay one or more final judgments the uninsured portion
of which exceeds in the aggregate $5 million, which judgment or
judgments are not paid, discharged or stayed for a period of 60 days;
(g) any Subsidiary Guarantee ceases to be in full force
and effect or is declared null and void or any such Subsidiary
Guarantor denies that it has any further liability under any
Subsidiary Guarantee, or gives notice to such effect (other than by
reason of the termination of this Indenture or the release of any such
Subsidiary Guarantee in accordance with this Indenture); or
(h) the occurrence of bankruptcy, insolvency or
reorganization with respect to the Company or any Significant
Subsidiary.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than as specified in clause (h)
above) occurs and is continuing, the Trustee or the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding may, and the
Trustee at the request of such Holders will, declare the principal of, and
accrued interest on, all of the outstanding Notes immediately due and payable
and, upon any such declaration, such principal and such interest will become
due and payable immediately.
If an Event of Default specified in clause (h) above occurs
and is continuing, then the principal of and accrued interest on all of the
outstanding Notes will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of the money due has
been obtained by the Trustee, the holders of a majority in aggregate principal
amount of the outstanding Notes, by written notice to the Company and the
Trustee, may rescind such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue
interest on all Notes, (B) all unpaid principal of (and premium, if any, on)
any outstanding Notes that has become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes, (C) to the
extent that payment of such interest is lawful, interest upon overdue interest
and overdue principal at the rate borne by the Notes, and (D) all sums paid or
advanced by the Trustee under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and (ii) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on the Notes that have become
due solely by such declaration of acceleration, have
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been cured or waived. No such rescission will affect any subsequent default or
impair any right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because of an Event of
Default specified in Section 501(e) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned
by the holders of such Indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of
the Notes, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company and each of the Subsidiary Guarantors covenants
that if
(a) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of
(or premium, if any, on) any Note at the Maturity thereof,
the Company and each Subsidiary Guarantor will, upon demand of the Trustee, pay
to the Trustee for the benefit of the Holders of such Notes, the whole amount
then due and payable on such Notes for principal (and premium, if any) and
interest, and interest on any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any
overdue installment of interest, at the rate borne by the Notes, and, in
addition thereto, such further amount as shall 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.
If the Company or any Subsidiary Guarantor, as the case may
be, fails to pay such amounts forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the
Company, such Subsidiary Guarantor or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the
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property of the Company, such Subsidiary Guarantor or any other obligor upon
the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Notes (including the Subsidiary Guarantors) or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such 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
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official 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
the Trustee any amount due 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 606.
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
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thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 505. 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 and 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 agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Notes and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal
(and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company, its successors
and assigns or the Person or Persons legally entitled thereto.
SECTION 507. Limitation on Suits.
No Holder has any right to institute any proceeding with
respect to this Indenture or any remedy thereunder, unless the Holders of at
least 25% in aggregate principal amount of the outstanding Notes have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding within 60 days after receipt of such notice and the Trustee,
within such 60-day period, has not received directions inconsistent with such
written request by Holders of a majority in aggregate principal amount of the
outstanding Notes. Such limitations do not apply, however, to a suit
instituted by a Holder for the enforcement of the
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payment of the principal of, premium, if any, or interest on such Note on or
after the respective due dates expressed in such Note.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment, as provided herein (including, if applicable, Article
Twelve) and in such Note of the principal of (and premium, if any) and (subject
to Section 309) interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 308, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised
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from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture,
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to the
Holders not consenting.
SECTION 512. [INTENTIONALLY OMITTED]
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the outstanding Notes may, on behalf of the Holders of all of the
Notes, waive any past defaults under this Indenture, except a default in the
payment of the principal of (and premium, if any) or interest on any Note, or
in respect of a covenant or provision that under this Indenture cannot be
modified or amended without the consent of the holder of each Note outstanding.
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 Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company and each Subsidiary Guarantor covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company and each Subsidiary Guarantor (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and is known to the Trustee, the Trustee shall mail to each holder of the Notes
notice of the Default or Event of Default within 90 days after the occurrence
thereof. However, except in the case of a Default or an Event of Default in
payment of principal of (and premium, if any, on) or interest on any Notes, the
Trustee may withhold the notice to the holders of the Notes if a committee of
its trust officers in good faith determines that withholding such notice is in
the interests of the holders of the Notes.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting, pursuant to the terms
of this Indenture or otherwise, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order with sufficient detail as may be requested by the Trustee and
any resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers
Certificate and/or an Opinion of Counsel;
(d) 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 in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
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(e) 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 pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities (including fees and expenses of its agents and counsel)
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into, and may conclusively rely upon, the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(i) except during the continuance of an Event of Default,
the Trustee need perform only those duties as are specifically set
forth in this Indenture and no others. If an Event of Default has
occurred and is continuing, the Trustee shall exercise its rights and
powers and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
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SECTION 603. Trustee Not Responsible for Recitals or
Issuance of Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Subsidiary Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture, the Notes or any Note
Guarantee, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Notes and perform its
obligations hereunder and, upon the effectiveness of the Registration
Statement, that the statements made by it in a Statement of Eligibility on Form
T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be accountable for the
use or application by the Company of the Notes or the proceeds thereof.
SECTION 604. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Note Registrar or such other
agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or any Subsidiary Guarantor, as the
case may be.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee (in its capacity as Trustee,
Paying Agent and Registrar) from time to time such reasonable
compensation for all services rendered by it hereunder as may be
separately agreed in writing (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
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reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(h), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of Federal, State, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
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(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding
Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Note for at least
six months, except when the Trustee's duty to resign is stayed in
accordance with the provisions of TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for
at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
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shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided subject to TIA Section 315(e), any Holder who has been a
bona fide Holder of a Note for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 107. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder subject to the retiring
Trustee's rights as provided under the last sentence of Section 606. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of
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the parties hereto. In case any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes. In case at that time
any of the Notes shall not have been authenticated, any successor Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor Trustee. In all such cases such certificates shall
have the full force and effect which this Indenture provides that the
certificate of authentication of the Trustee shall have; provided, however,
that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Notes in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY
AND SUBSIDIARY GUARANTORS
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company, the Subsidiary Guarantors and the Trustee that none of
the Company, the Subsidiary Guarantors or the Trustee or any agent of either
of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
To the extent required by the TIA, within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Notes, the Trustee shall transmit to the Holders, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15
if required by TIA Section 313(a).
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
The Company may not, in a single transaction or series of
related transactions, consolidate or merge with or into (whether or not the
Company is the surviving corporation), or directly and/or indirectly through
its Subsidiaries, sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets (determined on a
consolidated basis for the Company and its Subsidiaries taken as a whole) in
one or more related transactions to, another corporation, person or entity
unless:
(a) either (i) the Company is the surviving corporation
or (ii) in the case of a transaction involving the Company, 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
(the "Surviving Entity") is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia and assumes all the obligations of the Company under the
Notes and this Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee;
(b) immediately after giving effect to such transaction
and treating any obligation of the Company in connection with or as a
result of such transaction as having been incurred as of the time of
such transaction, no Default or Event of Default has occurred and is
continuing;
(c) the Company (or the Surviving Entity if the Company
is not the continuing obligor under this Indenture) could, at the time
of such transaction and after giving pro forma effect thereto as if
such transaction had occurred at the beginning of the applicable
four-quarter period, incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the first paragraph of
Section 1010;
(d) if the Company is not the continuing obligor under
this Indenture, each Subsidiary Guarantor, unless it is the other
party to the transaction described above, has by supplemental
indenture confirmed that its Subsidiary Guarantee applies to the
Surviving Entity's obligations under this Indenture and the Notes;
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(e) if any of the property or assets of the Company or
any of its Restricted Subsidiaries would thereupon become subject to
any Lien, the provisions of Section 1014 are complied with;
(f) immediately after giving effect to such transaction
on a pro forma basis, the Consolidated Net Worth of the Company (or of
the Surviving Entity if the Company is not the continuing obligor
under this Indenture) is equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction; and
(g) the Company delivers, or causes to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the
Trustee, an officers' certificate and an opinion of counsel, each
stating that such transaction complies with the requirements
identified under this Section;
provided, however, that any sale, transfer or disposition of all of the Capital
Stock, or all or substantially all of the assets, of a Subsidiary Guarantor
will not be restricted by the foregoing provisions but will be governed by the
provisions described under "Subsidiary Guarantees."
This Indenture will provide that no Subsidiary Guarantor may
consolidate with or merge with or into any other person or convey, sell,
assign, transfer, lease or otherwise disposed of its properties and assets
substantially as an entirely to any other person (other than the Company or
another Subsidiary Guarantor) unless: (a) subject to the provisions of the
following paragraph, the person formed by or surviving such consolidation or
merger (if other than such Subsidiary Guarantor) or to which such properties
and assets are transferred assumes all of the obligations of such Subsidiary
Guarantor under this Indenture and its Subsidiary Guarantee, pursuant to a
supplemental indenture in form and substance satisfactory to the Trustee and
(b) immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
In the event of any transaction described in and complying
with the conditions listed in the first paragraph of this covenant in which the
Company is not the continuing obligor under this Indenture, the Surviving
Entity will succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture, and thereafter the Company
shall, except in the case of a lease, be discharged from all its obligations
and covenants under this Indenture and the Notes.
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SECTION 802. Successor Substituted.
In the event of any transaction described in and complying
with the conditions listed in the Section 801 in which the Company is not the
continuing obligor under this Indenture, the Surviving Entity will succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture, and thereafter the Company shall, except in the case of a
lease, be discharged from all its obligations and covenants under this
Indenture and Notes.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND NOTE GUARANTEES
SECTION 901. Without Consent of Holders.
Without the consent of any Holders, the Company and any
affected Subsidiary Guarantor, each when authorized by a Board Resolution, and
the Trustee may amend or supplement this Indenture, the Notes or any Note
Guarantee without the consent of any Holder of a Note:
(a) to evidence the succession of another person to the
Company or any Subsidiary Guarantor and the assumption by any such
successor of the covenants of the Company or any Subsidiary Guarantor
in this Indenture and in the Notes; or
(b) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Notes in addition to or
in place of the certificated Notes; or
(e) to evidence and provide for the acceptance of
appointment under this Indenture by a successor Trustee; or
(f) to secure the Notes or any Subsidiary Guarantee; or
(g) to cure any ambiguity, to correct or supplement any
provision in this Indenture that may be defective or inconsistent with
any other provision in this
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Indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such actions
pursuant to this clause do not adversely affect the interests of the
holders; or
(h) to comply with any requirements of the Commission in
order to effect and maintain the qualification of this Indenture under
the Trust Indenture Act; or
(i) to release any Subsidiary Guarantor from its Note
Guarantee in accordance with the provisions of this Indenture
(including in connection with a sale of all of the Capital Stock of
such Subsidiary Guarantor).
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
indenture, Note or Note Guarantee, and upon receipt by the Trustee of the
documents described in Section 602(b) hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental indenture or Note
Guarantee 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 or Note Guarantee that adversely affects its own rights,
duties or immunities under this Indenture or otherwise.
SECTION 902. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate Outstanding principal amount of the Notes, by Act of said Holders
delivered to the Company, any affected Subsidiary Guarantor and the Trustee,
the Company and the Subsidiary Guarantor, each when authorized by a Board
Resolution, and the Trustee may amend or supplement in any manner this
Indenture or any Note Guarantee or modify in any manner the rights of the
Holders under this Indenture or any Note Guarantee; provided, however, that no
such supplement, amendment or modification may, without the consent of the
Holder of each Outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, any Note, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the coin or currency in which
any Note or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
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(b) reduce the percentage in principal amount of
outstanding Notes, the consent of whose holders is required for any
waiver of compliance with certain provisions of, or certain defaults
and their consequences provided for under, this Indenture;
(c) waive a default in the payment of principal of, or
premium, if any, or interest on the Notes; or
(d) release any Subsidiary Guarantor that is a
Significant Subsidiary from any of its obligations under its Note
Guarantee or this Indenture other than in accordance with the terms of
this Indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act of Holders shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustees own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, any affected
Subsidiary Guarantor and the Trustee of any supplemental indenture or Note
Guarantee pursuant to the provisions of Section 902, the Company shall give
notice thereof to the Holders of each Outstanding Note affected, in the manner
provided for in Section 107, setting forth in general terms the substance of
such supplemental indenture or Note Guarantee. Any failed attempt to effect
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 Note
Guarantee; provided that the Company has acted reasonably and in good faith.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders that it will duly and punctually pay the principal of (and premium, if
any) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in the City of New York, an office
or agency where Notes may be presented or surrendered for payment, where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The agency of the Trustee, located at 00 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, shall be such office or agency of the Company,
unless the Company shall designate and maintain some other office or agency for
one or more of such purposes. The Company shall give prompt written
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notice to the Trustee of any change in the location of any 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 agency of the Trustee in the City of New York, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of the City of New York) where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the City of New York for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (or premium, if any) or
interest on any of the Notes, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal of (or
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date of the principal of (or premium,
if any) or interest on any Notes, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of such action or any failure so
to act.
The Company shall cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Notes in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
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(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Notes) in the making of any
payment of principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
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
premium, if any) or interest on any Note and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as an unsecured general 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 a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, 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 publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Restricted Subsidiaries
as a whole and that the loss thereof is not disadvantageous in any material
respect to the Holders.
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SECTION 1005. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of the
Company or any Restricted Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company shall cause all properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted)
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all to the extent in the judgment of the
Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the maintenance of any of such properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material respect
to the Holders.
SECTION 1007. Insurance.
The Company shall at all times keep all of its and its
Restricted Subsidiaries' properties which are of an insurable nature insured
with insurers, believed by the Company to be responsible, against loss or
damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties.
SECTION 1008. Statement by Officers as to Default.
(a) The Company and each Subsidiary Guarantor will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of
compliance by the Company and such Subsidiary Guarantor with all conditions and
covenants under this Indenture. For purposes of this Section 1008(a), such
compliance shall be
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determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under
this Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than $2,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission an officers certificate specifying such event,
notice or other action within five Business Days of its occurrence.
SECTION 1009. [INTENTIONALLY OMITTED]
SECTION 1010. Limitation on Indebtedness of Issuance of
Disqualified Stock.
The Company shall not, and will not permit any Restricted
Subsidiary to, create, issue, assume, guarantee or in any manner become
directly or indirectly liable for the payment of, or otherwise incur
(collectively, "incur"), any Indebtedness (including Acquired Indebtedness and
the issuance of Disqualified Stock), except that the Company may incur
Indebtedness if, at the time of such event, the Fixed Charge Coverage Ratio for
the immediately preceding four full fiscal quarters for which internal
financial statements are available, taken as one accounting period, would have
been equal to at least 2.25 to 1.0.
In making the calculation under the preceding paragraph for
any four-quarter period that includes the Closing Date, pro forma effect will
be given to the Refinancing, as if the Refinancing had occurred at the
beginning of such four-quarter period. In addition (but without duplication),
in making the calculation under the preceding paragraph, pro forma effect will
be given to:
(i) the incurrence of such Indebtedness and (if
applicable) the application of the net proceeds therefrom, including
to refinance other Indebtedness, as if such Indebtedness was incurred
and the application of such proceeds occurred at the beginning of such
four-quarter period;
(ii) the incurrence, repayment or retirement of any other
Indebtedness by the Company or its Restricted Subsidiaries since the
first day of such four-quarter period as if such Indebtedness was
incurred, repaid or retired at the beginning of such four-quarter
period; and
(iii) the acquisition (whether by purchase, merger or
otherwise) or disposition (whether by sale, merger or otherwise) of
any company, entity or business acquired or
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disposed of by the Company or its Restricted Subsidiaries, as the case
may be, since the first day of such four-quarter period, as if such
acquisition or disposition occurred at the beginning of such
four-quarter period. In making a computation under the foregoing
clause (i) or (ii), (A) the amount of Indebtedness under a revolving
credit facility will be computed based on the average daily balance of
such Indebtedness during such four-quarter period, (B) if such
Indebtedness bears, at the option of the Company, a fixed or floating
rate of interest, interest thereon will be computed by applying, at
the option of the Company, either the fixed or floating rate, and (C)
the amount of any Indebtedness that bears interest at a floating rate
will be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period
(taking into account any Hedging Obligations applicable to such
Indebtedness if such Hedging Obligations have a remaining term at the
date of determination in excess of 12 months).
Notwithstanding the foregoing, the Company may, and may permit
its Restricted Subsidiaries to, incur the following Indebtedness ("Permitted
Indebtedness"):
(i) Indebtedness of the Company or any Subsidiary
Guarantor under the Bank Credit Agreement (and the incurrence by any
Subsidiary Guarantor of guarantees thereof) in an aggregate principal
amount at any one time outstanding not to exceed the greater of (A)
the Borrowing Base or (B) $140 million, less any amounts applied to
the permanent reduction of such credit facilities pursuant to the
provisions of Section 1016;
(ii) Indebtedness represented by the Notes (other than the
Additional Notes) and the Subsidiary Guarantees;
(iii) Existing Indebtedness;
(iv) the incurrence by the Company of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which
are used to refund, refinance or replace, any Indebtedness that is
permitted to be incurred under clause (ii) or (iii) above;
(v) Indebtedness owed by the Company to any Wholly Owned
Restricted Subsidiary or owed by any Restricted Subsidiary to the
Company or a Wholly Owned Restricted Subsidiary (provided that such
Indebtedness is held by the Company or such Restricted Subsidiary);
provided, however, that any Indebtedness of the Company owing to any
such Restricted Subsidiary is unsecured and subordinated in right of
payment from and after such time as the Notes shall become due and
payable (whether at Stated Maturity, acceleration, or otherwise)
to the payment and performance of the Company's obligations under the
Notes;
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(vi) Indebtedness of the Company or any Restricted
Subsidiary under Hedging Obligations incurred in the ordinary course
of business;
(vii) Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments in connection with the
acquisition or disposition of assets, including, without limitation,
shares of Capital Stock;
(viii) either (A) Capitalized Lease Obligations of the
Company or any Restricted Subsidiary or (B) Indebtedness under
purchase money mortgages or secured by purchase money security
interests so long as (x) such Indebtedness is not secured by any
property or assets of the Company or any Restricted Subsidiary other
than the property and assets so acquired and (y) such Indebtedness is
created within 60 days of the acquisition of the related property or
any Permitted Refinancing Indebtedness thereof; provided that
the aggregate amount of Indebtedness under clauses (A) and (B) does
not exceed 10% of Consolidated Tangible Assets at any one time
outstanding;
(ix) Indebtedness of the Company or any Restricted
Subsidiary pursuant to Trade Loan Agreements in an aggregate principal
amount not to exceed $5 million at any one time outstanding;
(x) Guarantees by any Restricted Subsidiary made in
accordance with the provisions of Section 1021; and
(xi) Indebtedness of the Company or any Restricted
Subsidiary not permitted by any other clause of this definition, in an
aggregate principal amount not to exceed $25 million at any one time
outstanding.
SECTION 1011. Limitation on Restricted Payments.
The Company shall not, and will not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following actions:
(a) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Capital Stock of the
Company or any Restricted Subsidiary, other than (i) dividends or
distributions payable solely in Qualified Equity Interests, (ii)
dividends or distributions by a Restricted Subsidiary payable to the
Company or another Restricted Subsidiary or (iii) pro rata dividends
or distributions on common stock or equity interests of Restricted
Subsidiaries held by minority shareholders, provided that such
dividends do not in the aggregate exceed the minority shareholders'
pro rata share
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of such Restricted Subsidiaries' net income from the first day of the
Company's fiscal quarter during which the Closing Date occurs;
(b) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any shares of Capital Stock, or any
options, warrants or other rights to acquire such shares of Capital
Stock, of the Company, any Restricted Subsidiary or any Affiliate of
the Company (other than, in either case, any such Capital Stock owned
by the Company or any of its Restricted Subsidiaries);
(c) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any
Subordinated Indebtedness; and
(d) make any Investment (other than a Permitted
Investment) in any person (such payments or other actions described in
(but not excluded from) clauses (a) through (d) being referred to as
"Restricted Payments"), unless at the time of, and immediately after
giving effect to, the proposed Restricted Payment:
(i) no Default or Event of Default has occurred
and is continuing,
(ii) the Company could incur at least $1.00 of
additional Indebtedness pursuant to the first paragraph of
Section 1010, and
(iii) the aggregate amount of all Restricted
Payments made after the Closing Date does not exceed the sum
of:
(A) 50% of the aggregate Consolidated
Adjusted Net Income of the Company during the period
(taken as one accounting period) from the first day
of the Company's fiscal quarter during which the
Closing Date occurs to the last day of the Company's
most recently ended fiscal quarter for which internal
financial statements are available at the time of
such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Adjusted Net Income
is a loss, minus 100% of such amount);
(B) the aggregate net cash proceeds
received by the Company after the Closing Date from
the issuance or sale (other than to a Subsidiary) of
either (1) Qualified Equity Interests of the Company
(excluding from this computation (x) proceeds of the
Equity Investment and (y) proceeds of a Public Equity
Offering received by the Company that are used by it
to redeem Notes as discussed above) or
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(2) debt securities or Disqualified Stock that have
been converted into or exchanged for Qualified Stock
of the Company, together with the aggregate net cash
proceeds received by the Company at the time of such
conversion or exchange; and
(C) $10 million.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may take the following actions, so long as no Default or Event of
Default has occurred and is continuing or would occur:
(a) the payment of any dividend in cash or Qualified
Equity Interests of the Company within 60 days after the date of
declaration thereof, if at the declaration date such payment would not
have been prohibited by the foregoing provisions;
(b) the repurchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the Company, in
exchange for, or out of the net cash proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of,
Qualified Equity Interests of the Company;
(c) the purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated Indebtedness
in exchange for, or out of the net cash proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of, shares
of Qualified Equity Interests of the Company;
(d) the purchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Indebtedness in
exchange for, or out of the net cash proceeds of a substantially
concurrent issuance or sale (other than to a Subsidiary) of,
Subordinated Indebtedness, so long as the Company or a Restricted
Subsidiary would be permitted to refinance such original Subordinated
Indebtedness with such new Subordinated Indebtedness pursuant to
clause (iv) of the definition of Permitted Indebtedness;
(e) the repurchase for value of shares of Capital Stock
of the Company pursuant to and in accordance with the Company's right
to make such repurchase under the terms of the Shares in Success Plan,
the Equity Ownership Plan or the Short-Term Incentive Plan in an
amount not to exceed $500,000 in any fiscal year;
(f) (A) the repayment of up to $10 million principal
amount of the Subordinated Intercompany Note with the proceeds of the
Equity Investment; (B) the repayment of up to $20 million principal
amount of the Subordinated Intercompany
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Note with the proceeds of the Offering; or (C) the refinancing or
other restructuring of up to $20 million principal amount of the
Subordinated Intercompany Note; provided, however, that any
Indebtedness resulting from such refinancing or restructuring (x) is
subordinate to the Notes, under subordination terms substantially
similar to those contained in the Subordinated Intercompany Note, (y)
is in an aggregate principal amount not greater than the amount being
refinanced or restructured and (z) includes scheduled principal
repayments in an amount not to exceed $3.5 million in any fiscal year;
(g) following the first Public Equity Offering, the
payment of any regular quarterly dividends in respect of the Company's
common stock, out of funds legally available therefor, in an amount
not to exceed, in any fiscal year, the lesser of (i) $2.5 million or
(ii) 4% of the Net Cash Proceeds received by the Company in such
Public Equity Offering; and
(h) the repurchase of any Subordinated Indebtedness at a
purchase price not greater than 101% of the principal amount of such
Subordinated Indebtedness in the event of a Change of Control in
accordance with provisions similar to Section 1015; provided that,
prior to or simultaneously with such repurchase, the Company has made
the Change of Control Offer as provided in such section with respect
to the Notes and has repurchased all Notes validly tendered for
payment in connection with such Change of Control Offer.
The actions described in clauses (b), (c), (e), (g), and (h) of
this paragraph will be Restricted Payments that will be permitted to be taken in
accordance with this paragraph but will reduce the amount that would otherwise
be available for Restricted Payments under clause (iii) of the first paragraph
of this covenant and the actions described in clauses (a), (d) and (f) of this
paragraph will be Restricted Payments that will be permitted to be taken in
accordance with this paragraph and will not reduce the amount that would
otherwise be available for Restricted Payments under clause (iii) of the first
paragraph of this covenant.
For the purpose of making any calculations under this Indenture
(i) if a Restricted Subsidiary is designated an Unrestricted Subsidiary, the
Company shall be deemed to have made an Investment in an amount equal to the
greatest of the fair market value or net book value of the net assets of such
Restricted Subsidiary at the time of such designation as determined by the Board
of Directors of the Company, and (ii) any property transferred to or from an
Unrestricted Subsidiary will be valued at fair market value at the time of such
transfer, as determined by the Board of Directors of the Company. The amount of
all Restricted Payments (other than cash) shall be the fair market value on the
date of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such
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Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined by
the Board of Directors whose resolution with respect thereto shall be delivered
to the Trustee, such determination to be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if such fair market value exceeds $5 million. Not later than the date
of making any Restricted Payment, the Company shall deliver to the Trustee an
officer's certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required under Section 1011
were computed, together with a copy of any fairness opinion or appraisal
required by this Indenture.
If the aggregate amount of all Restricted Payments calculated
under the foregoing provision includes an Investment in an Unrestricted
Subsidiary or other person that thereafter becomes a Restricted Subsidiary, the
aggregate amount of all Restricted Payments calculated under the foregoing
provision will be reduced by the lesser of (x) the net asset value of such
Subsidiary at the time it becomes a Restricted Subsidiary and (y) the initial
amount of such Investment.
If an Investment resulted in the making of a Restricted
Payment, the aggregate amount of all Restricted Payments calculated under the
foregoing provision will be reduced by the amount of any net reduction in such
Investment (resulting from the payment of interest or dividends, loan
repayment, transfer of assets or otherwise, other than the redesignation of an
Unrestricted Subsidiary or other person as a Restricted Subsidiary), to the
extent such net reduction is not included in the Company's Consolidated
Adjusted Net Income; provided that the total amount by which the aggregate
amount of all Restricted Payments may be reduced may not exceed the lesser of
(x) the cash proceeds received by the Company and its Restricted Subsidiaries
in connection with such net reduction and (y) the initial amount of such
Investment.
In computing the Consolidated Adjusted Net Income of the
Company for purposes of the foregoing clause (iii)(A), (i) the Company may use
audited financial statements for the portions of the relevant period for which
audited financial statements are available on the date of determination and
unaudited financial statements and other current financial data based on the
books and records of the Company for the remaining portion of such period and
(ii) the Company shall be permitted to rely in good faith on the financial
statements and other financial data derived from its books and records that are
available on the date of determination. If the Company makes a Restricted
Payment that, at the time of the making of such Restricted Payment, would in
the good faith determination of the Company be permitted under the requirements
of this Indenture, such Restricted Payment will be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated
Adjusted Net Income of the Company for any period.
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SECTION 1012. Limitation on Issuances and Sales of Capital
Stock and Preferred Stock of Restricted Subsidiaries.
The Company (a) will not permit any Restricted Subsidiary to
issue any Capital Stock (other than to the Company or a Wholly Owned Restricted
Subsidiary) and (b) will not, and will not permit any Restricted Subsidiary to,
transfer, convey, sell, lease or otherwise dispose of any Capital Stock of any
Restricted Subsidiary to any Person (other than the Company or a Wholly Owned
Restricted Subsidiary); provided, however, that this covenant will not prohibit
(i) the sale or other disposition of all, but not less than all, of the issued
and outstanding Capital Stock of a Restricted Subsidiary owned by the Company
and its Restricted Subsidiaries in compliance with the other provisions of this
Indenture or (ii) the ownership by directors of director's qualifying shares or
the ownership by foreign nationals of Capital Stock of any Restricted
Subsidiary, to the extent mandated by applicable law.
The Company shall not permit any Restricted Subsidiary to
issue any Preferred Stock.
SECTION 1013. Limitation on Transactions with Affiliates.
The Company shall not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into or suffer to exist any
transaction with, or for the benefit of, any Affiliate of the Company or any
beneficial owner of 5% or more of any class of the Capital Stock of the Company
at any time outstanding ("Interested Persons"), unless (a) such transaction is
on terms that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that could have been obtained in an
arm's length transaction with third parties who are not Interested Persons and
(b) the Company delivers to the Trustee (i) with respect to any transaction or
series of related transactions entered into after the Closing Date involving
aggregate payments in excess of $3 million, a resolution of the Board of
Directors of the Company set forth in an officers' certificate certifying that
such transaction or transactions complies with clause (a) above and that such
transaction or transactions have been approved by the Board of Directors
(including a majority of the Disinterested Directors) of the Company and (ii)
with respect to a transaction or series of related transactions involving
aggregate payments equal to or greater than $5 million, a written opinion as to
the fairness to the Company or such Restricted Subsidiary of such transaction
or series of transactions from a financial point of view issued by an
accounting, appraisal or investment banking firm, in each case of national
standing.
The foregoing covenant will not restrict:
(A) transactions among the Company and/or its Restricted
Subsidiaries;
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(B) the Company from paying reasonable and customary
regular compensation and fees to directors of the Company or any
Restricted Subsidiary who are not employees of the Company or any
Restricted Subsidiary;
(C) transactions permitted by the provisions of
Section 1011; and
(D) the performance of the Company's obligations under
the Technical Assistance Agreement, as in effect at the Closing Date,
in an annual amount not to exceed $1 million; provided that any
amendments or modifications to the terms of the Technical
Assistance Agreement are no less favorable to the Company than those
that could have been obtained in an arm's length transaction with
third parties who are not Interested Persons.
SECTION 1014. Limitation on Liens.
The Company shall not, and will not permit any Restricted
Subsidiary to directly or indirectly, create, incur, assume or suffer to exist
any Lien of any kind on or with respect to any of its property or assets,
including any shares of stock or debt of any Restricted Subsidiary whether
owned at the Closing Date or thereafter acquired, or any income, profits or
proceeds therefrom, or assign or otherwise convey any right to receive income
thereon, unless (a) in the case of any Lien securing Subordinated Indebtedness,
the Notes are secured by a Lien on such property, assets or proceeds that is
senior in priority to such Lien and (b) in the case of any other Lien, the
Notes are equally and ratably secured with the obligation or liability secured
by such Lien.
Notwithstanding the foregoing, the Company may, and may permit
any Subsidiary to, incur the following Liens ("Permitted Liens"):
(i) Liens (other than (A) Liens securing Indebtedness
under the Bank Credit Agreement and (B) Liens securing the First
Mortgage Notes more than 60 days after the Closing Date) existing as
of the Closing Date;
(ii) Liens on property or assets of the type specified in
the Bank Credit Agreement as of the Closing Date of the Company or any
Restricted Subsidiary securing Indebtedness under the Bank Credit
Agreement or one or more other credit facilities in a principal amount
not to exceed the principal amount of the outstanding Indebtedness
permitted by clause (i) of the definition of "Permitted Indebtedness";
(iii) Liens on any property or assets of a Restricted
Subsidiary granted in favor of the Company or any Wholly Owned
Restricted Subsidiary;
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(iv) any interest or title of a lessor under any
Capitalized Lease Obligation or Sale and Leaseback Transaction that
was not entered into in violation of Section 1010;
(v) Liens securing Acquired Indebtedness created prior to
(and not in connection with or in contemplation of) the incurrence of
such Indebtedness by the Company or any Restricted Subsidiary;
provided that such Lien does not extend to any property or
assets of the Company other than the property and assets acquired in
connection with the incurrence of such Acquired Indebtedness;
(vi) Liens securing Hedging Obligations permitted to be
incurred pursuant to clause (vi) of the definition of "Permitted
Indebtedness";
(vii) Liens arising from purchase money mortgages and
purchase money security interests incurred in the ordinary course of
the business of the Company; provided that (A) the related
Indebtedness is not secured by any property or assets of the Company
or any Restricted Subsidiary other than the property and assets so
acquired, (B) the Lien securing such Indebtedness is created within 60
days of such acquisition, and (C) the related Indebtedness was not
incurred in violation of Section 1010;
(viii) Liens on Fixed Assets of the Company or a Restricted
Subsidiary; provided that the aggregate net book value of all such
Fixed Assets does not exceed 10% of the Consolidated Tangible Assets
at any one time outstanding;
(ix) statutory Liens or landlords', carriers',
warehouseman's, mechanics', suppliers', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in good faith
by appropriate proceedings and, if required by GAAP, a reserve or
other appropriate provision has been made therefor;
(x) Liens for taxes, assessments, government charges or
claims that are not yet due or that are being contested in good faith
by appropriate proceedings promptly instituted and diligently
conducted and, if required by GAAP, a reserve or other appropriate
provision has been made therefor;
(xi) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory obligations, surety
and appeal bonds, government contracts, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business (other than contracts for the payment of money);
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(xii) easements, rights-of-way, restrictions and
other similar charges or encumbrances not interfering in any
material respect with the business of the Company or any Restricted
Subsidiary incurred in the ordinary course of business;
(xiii) deposits or pledges to secure obligations under
workmen's compensation, social security or similar laws, or under
unemployment insurance;
(xiv) Liens arising by reason of any judgment, decree or
order of any court, so long as such Lien is adequately bonded or
adequately covered by insurance as to which the insurance company has
not disclaimed or disputed in writing its obligations for coverage and
any appropriate legal proceedings that may have been duly initiated
for the review of such judgment, decree or order have not been finally
terminated or the period within which such proceedings may be
initiated has not expired; and
(xv) any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clauses (i) through
(xiv); provided that any such extension, renewal or replacement is no
more restrictive in any material respect than the Lien so extended,
renewed or replaced and does not extend to any additional property or
assets.
SECTION 1015. Purchase of Notes upon a Change of Control.
(a) If a Change of Control occurs at any time, then,
each Holder shall have the right to require that the Company purchase such
Holder's Notes, in whole or in part in integral multiples of $1,000, at a
purchase price in cash equal to 101% of the principal amount of such Notes or
Additional Notes, plus accrued and unpaid interest, if any, to the date of
purchase, pursuant to the offer described below (the "Change of Control
Offer").
(b) Within 30 days following any Change of Control, the
Company shall notify the Trustee thereof and give written notice of such Change
of Control to each holder of Notes and Additional Notes by first-class mail,
postage prepaid, at its address appearing in the security register, stating:
(i) that a Change of Control has occurred, that the
Change of Control Offer is being made pursuant to this Section 1015
and that all Notes validly tendered will be accepted for payment;
(ii) the purchase price and the Purchase Date, which
shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed or such later date as is necessary
to comply with requirements under the Exchange Act (the "Change of
Control Payment Date");
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(iii) that any Note or Additional Note not tendered shall
continue to accrue interest;
(iv) that, unless the Company defaults in the payment of
the purchase price, any Notes or Additional Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(v) certain other procedures that a holder of Notes or
Additional Notes must follow to accept a Change of Control Offer or to
withdraw such acceptance;
(vi) that Holders electing to have any Note purchased
pursuant to the Change of Control Offer will be required to surrender
such Note, together with the form entitled "Option of the Holder to
Elect Purchase" on the reverse side of such Note completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the Business Day immediately preceding the Change of
Control Payment Date;
(vii) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of
business on the third Business Day immediately preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and
(viii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of
$1,000 or integral multiples thereof.
(c) On the Change of Control Payment Date, the Company
shall:
(i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer;
(ii) deposit one day prior to the Change of Control
Purchase Date with the Paying Agent money sufficient to pay the
purchase price of all Notes or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee,
all Notes or portions thereof so accepted together with an Officers'
Certificate specifying the Notes or portions thereof accepted for
payment by the Company.
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The Paying Agent shall promptly mail, to the Holders of Notes
so accepted, payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail to such Holders a new Note or Notes equal
in principal amount to any unpurchased portion of the Notes surrendered;
provided that each Note purchased and each new Note issued shall be in a
principal amount of $1,000 or integral multiples thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date. For purposes of this
Section 1015, the Trustee shall act as Paying Agent. All Notes or portions
thereof purchased pursuant to this Section 1015 will be cancelled by the
Trustee.
(d) The Company shall comply with the applicable tender
offer rules including Rule-14e under the Exchange Act, and any other applicable
securities laws and regulations in connection with a Change of Control Offer.
To the extent that provisions of any applicable securities laws or regulations
conflict with provisions of this Section 1015, the Company shall comply with
such securities laws and regulations and shall not be deemed to have breached
its obligations under this Section 1015 by virtue thereof.
SECTION 1016. Limitation on Certain Asset Sales.
(a) The Company shall not, and will not permit any
Restricted Subsidiary to, engage in any Asset Sale unless (i) the consideration
received by the Company or such Restricted Subsidiary for such Asset Sale is
not less than the fair market value of the assets sold (as determined by the
Board of Directors of the Company, whose good faith determination will be
conclusive) and (ii) the consideration received by the Company or the relevant
Restricted Subsidiary in respect of such Asset Sale consists of at least 75%
cash or cash equivalents; provided, however, that the Company may receive up to
$5 million in the form of non-cash consideration in connection with the Atlas
Disposition.
(b) If the Company or any Restricted Subsidiary engages
in an Asset Sale, the Company may, at its option, within 12 months after such
Asset Sale, (i) apply all or a portion of the Net Cash Proceeds to the
permanent reduction of amounts outstanding under the Bank Credit Agreement or
to the repayment of other senior Indebtedness of the Company or a Restricted
Subsidiary or (ii) invest (or enter into a legally binding agreement to invest)
all or a portion of such Net Cash Proceeds in properties and assets to replace
the properties and assets that were the subject of the Asset Sale or in
properties and assets that will be used in businesses of the Company or its
Restricted Subsidiaries, as the case may be, existing on the Closing Date. If
any such legally binding agreement to invest such Net Cash Proceeds is
terminated, the Company may, within 90 days of such termination or within 12
months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as
provided in clause (i) or (ii) (without regard to the parenthetical contained
in such clause (ii)) above. The amount of
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such Net Cash Proceeds not so used as set forth above in this paragraph
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$5 million, the Company shall, within 30 days thereafter, make an offer to
purchase from all Holders of Notes and Additional Notes, if any, on a pro rata
basis, in accordance with the procedures set forth in this Indenture, the
maximum principal amount (expressed as a multiple of $1,000) of Notes and
Additional Notes, if any, that may be purchased with the Excess Proceeds, at a
purchase price in cash equal to 100% of the principal amount thereof, plus
accrued interest, if any, to the date such offer to purchase is consummated.
To the extent that the aggregate principal amount of Notes and Additional
Notes, if any, tendered pursuant to such offer to purchase is less than the
Excess Proceeds, the Company may use such deficiency for general corporate
purposes. If the aggregate principal amount of Notes and Additional Notes, if
any, validly tendered and not withdrawn by holders thereof exceeds the Excess
Proceeds, the Notes and Additional Notes, if any, to be purchased will be
selected on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds will be reset to zero.
The Company shall comply with the applicable tender offer
rules, including Rule-14e under the Exchange Act, and any other applicable
securities laws and regulations, to the extent such laws and regulations are
applicable in the event that the Company is required to repurchase Notes as
described above.
SECTION 1017. Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary so long as (i) neither the Company nor any
Restricted Subsidiary is directly or indirectly liable for any Indebtedness of
such Subsidiary, (ii) no default with respect to any Indebtedness of such
Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of
any other Indebtedness of the Company or any Restricted Subsidiary to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity, (iii) any Investment in
such Subsidiary made as a result of designating such Subsidiary an Unrestricted
Subsidiary will not violate the provisions of Section 1011, (iv) neither the
Company nor any Restricted Subsidiary has a contract, agreement, arrangement,
understanding or obligation of any kind, whether written or oral, with such
Subsidiary other than those that might be obtained at the time from persons who
are not Affiliates of the Company, (v) neither the Company nor any Restricted
Subsidiary has any obligation to subscribe for additional shares of Capital
Stock or other equity interest in such Subsidiary, or to maintain or preserve
such Subsidiary's financial condition or to cause such Subsidiary to achieve
certain levels of operating results, and (vi) such Unrestricted Subsidiary has
at least one director on its Board of Directors that is not a director or
executive officer of
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the Company or any of its Restricted Subsidiaries. Notwithstanding the
foregoing, the Company may not designate any of its Subsidiaries existing as of
the Closing Date or any successor to any of them as an Unrestricted Subsidiary
and may not sell, transfer or otherwise dispose of any properties or assets of
any such Subsidiary to an Unrestricted Subsidiary, other than in the ordinary
course of business.
(b) The Board of Directors of the Company may designate
any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no
Default or Event of Default has occurred and is continuing following such
designation and (ii) the Company could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to the first
paragraph of Section 1010 (treating any Indebtedness of such Unrestricted
Subsidiary as the incurrence of Indebtedness by a Restricted Subsidiary).
SECTION 1018. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Restricted Subsidiary to (a) pay dividends, in cash or
otherwise, or make any other distributions on or in respect of its Capital
Stock, (b) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (c) make loans or advances to the Company or any other Restricted
Subsidiary, or (d) transfer any of its properties or assets to the Company or
any other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of:
(i) any agreement in effect on the Closing Date;
(ii) customary non-assignment provisions of any lease
governing a leasehold interest of the Company or any Restricted
Subsidiary;
(iii) the refinancing or successive refinancing of
Indebtedness incurred under the agreements in effect on the Closing
Date, so long as such encumbrances or restrictions are no less
favorable to the Company or any Restricted Subsidiary than those
contained in such original agreement; or
(iv) any agreement or other instrument of a person
acquired by the Company or any Restricted Subsidiary in existence at
the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any
person, or the properties or assets of any person, other than the
person, or the property or assets of the person, so acquired.
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SECTION 1019. Waiver of Certain Covenants.
The Company or any Subsidiary Guarantor may omit in any
particular instance to comply with any term, provision or condition set forth
in Article Eight or Sections 1004 through 1023, inclusive, if before or after
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Notes, by Act of such Holders, waive such compliance
in such instance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 1020. Payment for Consent.
This Indenture will provide that neither the Company nor any
of its Restricted Subsidiaries will, directly or indirectly, pay or cause to be
paid any consideration, whether by way of interest, fee or otherwise, to any
Holder for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid or is paid to all Holders that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
SECTION 1021. Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries.
The Company shall provide to the Trustee, on the date that
any Person becomes a Restricted Subsidiary, a supplemental indenture to this
Indenture, executed by such new Restricted Subsidiary, providing for a full and
unconditional guarantee on a senior basis by such new Restricted Subsidiary of
the Company's obligations under the Notes and this Indenture to the same extent
as that set forth in this Indenture, provided that in the case of any new
Restricted Subsidiary that becomes a Restricted Subsidiary through the
acquisition of a majority of its voting Capital Stock by the Company or any
other Restricted Subsidiary, such guarantee may be subordinated to the extent
required by the obligations of such new Restricted Subsidiary existing on the
date of such acquisition that were not incurred in contemplation of such
acquisition.
SECTION 1022. Line of Business.
The Company shall not and shall not cause or permit any of its
Restricted Subsidiaries to engage in any businesses other than the businesses
in which the Company is engaged on the Closing Date and any businesses
reasonably related or complimentary to one or
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more of its businesses on the Closing Date (as determined in good faith by the
Company's Board of Directors).
SECTION 1023. Reports.
At all times from and after the earlier of (i) the date of the
commencement of an Exchange Offer or the effectiveness of the Shelf
Registration Statement (the "Registration") and (ii) the date 120 days after
the Closing Date, in either case, whether or not the Company is then required
to file reports with the Commission, the Company shall file with the Commission
(to the extent accepted by the Commission) all such annual reports, quarterly
reports and other documents that the Company would be required to file if it
were subject to Sections 13(a) or 15(d) under the Exchange Act.
The Company shall also (a) supply to the Trustee and each
holder of Notes, or supply to the Trustee for forwarding to each such holder,
without cost to such holder, copies of such reports and other documents within
15 days after the date on which the Company files such reports and documents
with the Commission or the date on which the Company would be required to file
such reports and documents if the Company were so required and (b) if filing
such reports and documents with the Commission is not accepted by the
Commission or is prohibited under the Exchange Act, to supply at the Company's
cost copies of such reports and documents to any prospective holder of Notes
promptly upon written request. In addition, at all times prior to the earlier
of the date of the Registration and the date 120 days after the Closing Date,
the Company shall, at its cost, deliver to each holder of the Notes quarterly
and annual reports substantially equivalent to those that would be required by
the Exchange Act. Furthermore, at all times prior to the date of Registration,
the Company shall supply at the Company's cost copies of such reports and
documents to any prospective holder of Notes promptly upon written request.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
(a) The Notes may be redeemed at the option of the
Company, as a whole or from time to time in part, at any time on or after April
15, 2003, subject to the conditions and at the Redemption Prices specified in
the form of Note, together with accrued interest, if any, to the Redemption
Date.
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(b) In addition, at any time or from time to time on or
prior to April 15, 2001, the Company may redeem, on one or more occasions, up
to 35% of the sum of (i) the initial aggregate principal amount of the Notes
and (ii) the initial aggregate principal amount of any Additional Notes with
the net proceeds of one or more Public Equity Offerings at a Redemption Price
equal to 108.75% the principal amount thereof, plus accrued interest, if any,
to the Redemption Date (subject to the right of holders of record on the
relevant record date to receive interest due on an interest payment date);
provided that, immediately after giving effect to such redemption, at least 65%
of the initial aggregate principal amount of the Notes (excluding the
Additional Notes) remains outstanding; and provided further that such
redemptions shall occur within 60 days of the date of closing of each Public
Equity Offering.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Notes to be redeemed and shall deliver to
the Trustee such documentation and records as shall enable the Trustee to
select the Notes to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, pro rata or by lot or by such other method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions of the principal of Notes; provided, however, that
no such partial redemption shall reduce the portion of the principal amount of
a Note not redeemed to less than $1,000.
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The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to the
portion of the principal amount of such Note which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for
in Section 107 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in Section 1107,
if any,
(3) if less than all Outstanding Notes are to be
redeemed, the identification (and, in the case of a partial
redemption, the principal amounts) of the particular Notes to be
redeemed,
(4) in case any Note is to be redeemed in part only, the
notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the holder will receive,
without charge, a new Note or Notes of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1107) will become due and payable upon each such Note, or
the portion thereof, to be redeemed, and that interest thereon will
cease to accrue on and after said date,
(6) the place or places where such Notes are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, and
(7) the CUSIP number.
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Notice of redemption of Notes to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and accrued interest
on, all the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Notes
shall cease to bear interest. Upon surrender of any such Note for redemption
in accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 309.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so
surrendered.
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ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or
Covenant Defeasance.
The Company may, at its option and at any time, with respect
to the Notes, elect to have either Section 1202 or Section 1203 be applied to
all Outstanding Notes upon compliance with the conditions set forth below in
this Article Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and the Subsidiary Guarantors
shall be deemed to have been discharged from its obligations with respect to
all Outstanding Notes and the Note Guarantees on the date the conditions set
forth in Section 1204 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding Notes and
the Note Guarantees, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1205 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 the Note Guarantees and this Indenture insofar
as such Notes and Note Guarantees are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of holders of outstanding Notes to
receive payments in respect of the principal of (and premium, if any, on) and
interest on such Notes when such payments are due, (B) the Company's
obligations to issue temporary Notes, register the transfer or exchange of any
Notes, replace mutilated, destroyed, lost or stolen Notes, maintain an office
or agency for payments in respect of the Notes and segregate and hold such
payments in trust, (C) the rights, powers, trusts, duties and immunities of the
Trustee, including, but not limited to, those under Section 606 and (D) this
Article Twelve. Subject to compliance with this Article Twelve, the Company
may exercise its option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203 with respect to the Notes.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, the Company and any Subsidiary Guarantor shall
be released from its obligations under any covenant contained in Section 801
and Section 802 and in Sections 1007 through 1023 with respect to the
Outstanding Notes on and after the date the conditions set
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forth below are satisfied (hereinafter, "covenant defeasance"), and the Notes
shall thereafter be deemed not to be "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. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Notes, the Company and any Subsidiary Guarantor 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 shall not constitute a Default or an Event of Default
under Sections 501(c) and 501(d), but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Notes:
(a) the Company must irrevocably deposit or cause to be
deposited with the Trustee, as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders, money in an amount, or U.S. Government Obligations (as
defined in this Indenture) that through the scheduled payment of
principal and interest thereon will provide money in an amount, or a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay and
discharge the principal of (and premium, if any, on) and interest on
the outstanding Notes at maturity (or upon redemption, if applicable)
of such principal or installment of interest;
(b) no Default or Event of Default has occurred and is
continuing on the date of such deposit or, insofar as an event of
bankruptcy under clause (h) of "Events of Default" above is concerned,
at any time during the period ending on the 91st day after the date of
such deposit;
(c) such legal defeasance or covenant defeasance may not
result in a breach or violation of, or constitute a default under,
this Indenture or any material agreement or instrument to which the
Company or any Subsidiary Guarantor is a party or by which it is
bound;
(d) in the case of legal defeasance, the Company must
deliver to the Trustee an Opinion of Counsel stating that the Company
has received from, or there has been published by, the Internal
Revenue Service a ruling, or since the date hereof, there has
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been a change in applicable federal income tax law, to the effect, and
based thereon such opinion must 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;
(e) in the case of covenant defeasance, the Company must
have delivered to the Trustee an Opinion of Counsel to the effect 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; and
(f) the Company must have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the legal
defeasance or the covenant defeasance, as the case may be, have been
complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1205, the "Trustee") pursuant to Section 1204 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 its own 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 premium, if any) 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 and hold harmless the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Governmental Obligations deposited pursuant to Section 1204 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 Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1204 which, in the opinion of a
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nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent Defeasance or Covenant Defeasance, as applicable, in accordance with
this Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money
in accordance with Section 1205 by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1202 or 1203, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1205; provided, however, that if the Company makes any payment of principal of
(or premium, if any) 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 THIRTEEN
GUARANTEES
SECTION 1301. Note Guarantees.
Each Subsidiary Guarantor hereby jointly and severally,
absolutely, unconditionally and irrevocably guarantees the Notes and
obligations of the Company hereunder and thereunder, and guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
on behalf of such Holder, that: (a) the principal of (and premium, if any) and
interest on the Notes will be paid in full when due, whether at Stated
Maturity, by acceleration, call for redemption or otherwise (including, without
limitation, the amount that would become due but for the operation of the
automatic stay under Section 362(a) of the Federal Bankruptcy Code to the
extent permitted by law), together with interest on the overdue principal, if
any, and interest on any overdue interest, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be paid in full or 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 of any such other obligations, the same will be paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration or otherwise, subject,
however, in the case of clauses (a) and (b) above, to the limitations set forth
in Section 1306 hereof.
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Each Subsidiary Guarantor hereby agrees that its 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 of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Subsidiary Guarantor hereby waives the benefits of
diligence, presentment, demand for 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 or any other Person, protest, notice and
all demands whatsoever and covenants that the Note Guarantee of such Subsidiary
Guarantor will not be discharged as to any Note except by complete performance
of the obligations contained in such Note and such Note Guarantee. Each of the
Subsidiary Guarantors hereby agrees that, in the event of a default in payment
of principal (or premium, if any) or interest on such Note, whether at its
Stated Maturity, by acceleration, call for redemption, purchase or otherwise,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Note, subject to the terms and conditions set forth in this
Indenture, directly against each of the Subsidiary Guarantors to enforce such
Subsidiary Guarantor's Note Guarantee without first proceeding against the
Company or any other Subsidiary Guarantor. Each Subsidiary Guarantor agrees
that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Notes, to
collect interest on the Notes, or to enforce or exercise any other right or
remedy with respect to the Notes, such Subsidiary Guarantor will pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
either the Company or any Subsidiary Guarantor, any amount paid by any of them
to the Trustee or such Holder, the Note Guarantee of each of the Subsidiary
Guarantors, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor further agrees that, as between
each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of the Note
Guarantee of such Subsidiary Guarantor, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Five hereof, such obligations (whether or not due and
payable) shall forthwith become
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due and payable by each Subsidiary Guarantor for the purpose of the Note
Guarantee of such Subsidiary Guarantor.
SECTION 1302. Execution and Delivery of Note Guarantee.
To further evidence the Note Guarantee set forth in Section
1301, each Subsidiary Guarantor hereby agrees that a notation of such Note
Guarantee, substantially in the form included in Exhibit B of this Indenture,
shall be endorsed on each Note authenticated and delivered by the Trustee.
Such Note Guarantee shall be executed on behalf of each Subsidiary Guarantor by
its Chairman, any Vice Chairman, its President or a Vice President and attested
by its Secretary or Assistant Secretary, and shall have been duly authorized by
all requisite corporate action. Such signature may be in facsimile form. The
validity and enforceability of any Note Guarantee shall not be affected by the
fact that it is not affixed to any particular Note.
Each Subsidiary Guarantor hereby agrees that its respective
Note Guarantee set forth in Section 1301 shall remain in full force and effect
notwithstanding any failure to endorse on each note a notation of such Note
Guarantee.
The delivery of any Note by the Note Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Note
Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.
SECTION 1303. Severability.
In case any provision of any Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1304. Seniority of Guarantees.
The obligations of each Subsidiary Guarantor to the Holders of
Notes and to the Trustee pursuant to such Subsidiary Guarantor's Note Guarantee
and this Indenture are senior unsecured obligations of such Subsidiary
Guarantor ranking pari passu in right of payment with all existing and future
senior obligations of such Subsidiary Guarantor.
SECTION 1305. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each
Holder confirms that it is the intention of all such parties that the guarantee
by each Subsidiary Guarantor pursuant to its Note Guarantee not constitute a
fraudulent transfer or conveyance for purposes
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of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law or the
provisions of its local law relating to fraudulent transfer or conveyance. To
effectuate the foregoing intention, the Holders and such Subsidiary Guarantor
hereby irrevocably agree that the obligations of such Subsidiary Guarantor
under its Note Guarantee shall be limited to the maximum amount that will not,
after giving effect to all other contingent and fixed liabilities of such
Subsidiary Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Note Guarantee or
pursuant to this Section 1305 hereof, result in the obligations of such
Subsidiary Guarantor under its Note Guarantee constituting such fraudulent
transfer or conveyance.
SECTION 1306. Contribution.
In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Subsidiary Guarantor") under a Guarantee, such Funding Subsidiary
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Subsidiary Guarantor (including the Funding Subsidiary Guarantor) for all
payments, damages and expenses incurred by that Funding Subsidiary Guarantor in
discharging the Company's obligations with respect to the Notes or any other
Subsidiary Guarantor's obligations with respect to the Guarantee of such
Subsidiary Guarantor. "Adjusted Net Assets" of such Subsidiary Guarantor at
any date shall mean the lesser of (x) the amount by which the fair value of the
property of such Subsidiary Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date),
but excluding liabilities under the Guarantee of such Subsidiary Guarantor at
such date and (y) the amount by which the present fair salable value of the
assets of such Subsidiary Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Subsidiary Guarantor on its
debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), excluding debt in respect of the Guarantee
of such Subsidiary Guarantor, as they become absolute and matured.
SECTION 1307. Release of a Subsidiary Guarantor.
(a) In the event of any sale, exchange or transfer to any
person not an Affiliate of the Company of all of the Company's and the
Restricted Subsidiaries' Capital Stock in, or all or substantially all the
assets of, such Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by Section 801), then such Subsidiary Guarantor will be deemed
automatically and unconditionally released and discharged from all of its
obligations under its
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Note Guarantee without any further action on the part of the Trustee or any
holder of the Notes; provided that the Net Proceeds of such sale, transfer or
other disposition are applied in accordance with Section 1016 to the extent
required thereby.
(b) Any Subsidiary Guarantor that is designated by the
Board of Directors of the Company as an Unrestricted Subsidiary in accordance
with the terms of this Indenture may, at such time, at the option of the Board
of Directors, be released and relieved of its obligations under its Note
Guarantee. The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a Company Request accompanied by an Officers'
Certificate certifying as to the compliance with this Section 1307. Any
Subsidiary Guarantor not so released shall remain liable for the full amount of
principal of and interest on the Notes as provided in its Note Guarantee.
(c) Any Non-U.S. Restricted Subsidiary that is or becomes
a Subsidiary Guarantor shall be released and relieved of its obligations under
its Note Guarantee at the time such Subsidiary no longer guarantees any
Indebtedness (other than the Notes) of the Company or any U.S. Restricted
Subsidiary (other than as a result of payment thereof). The Trustee shall
deliver an appropriate instrument evidencing such release upon receipt of a
Company Request accompanied by an Officers' Certificate certifying as to the
compliance with this Section 1308.
(d) Concurrently with the defeasance of the Notes under
Section 1202 hereof, or the covenant defeasance of the Notes under Section 1203
hereof, the Subsidiary Guarantors shall be released from all their obligations
under their Note Guarantees under this Article Thirteen.
SECTION 1308. Subsidiary Guarantors May Consolidate, etc. on
Certain Terms.
No Subsidiary Guarantor may consolidate with or merge with or
into any other person or convey, sell, assign, transfer, lease or otherwise
dispose of its properties and assets substantially as an entirety to any other
person (other than the Company or another Subsidiary Guarantor) unless: (a)
such Subsidiary Guarantor is released from its Note Guarantee pursuant to
Section 1307 or (b)(i) the person formed by or surviving such consolidation or
merger (if other than such Subsidiary Guarantor) or to which such properties
and assets are transferred assumes all of the obligations of such Subsidiary
Guarantor under this Indenture and its Note Guarantee, pursuant to a
supplemental indenture in form and substance satisfactory to the Trustee and
(ii) immediately after giving effect to such transaction, no Default or Event
of Default has occurred and is continuing.
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SECTION 1309. Benefits Acknowledged.
Each Subsidiary Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that its guarantee and waivers pursuant to its Guarantee are
knowingly made in contemplation of such benefits.
SECTION 1310. Issuance of Guarantees by Certain New
Restricted Subsidiaries.
The Company shall provide to the Trustee, on the date that any
Person becomes a Restricted Subsidiary, a supplemental indenture to this
Indenture, executed by such new Restricted Subsidiary, providing for a full and
unconditional guarantee on a senior basis by such new Restricted Subsidiary of
the Company's obligations under the Notes and this Indenture to the same extent
as that set forth in this Indenture, provided that any such Restricted
Subsidiary that is organized outside the United states shall not be required to
provide a Note Guarantee so long as such Restricted Subsidiary has not
guaranteed any other Indebtedness of the Company or any other Restricted
Subsidiary.
* * * *
This Indenture may be signed in any number of counterparts
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals, if any, to
be hereunto affixed and attested, all as of the day and year first above
written.
AMERISTEEL CORPORATION
By
------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By
------------------------------------
Authorized Signatory
AMERISTEEL FINANCE, INC.
As Subsidiary Guarantor
By
------------------------------------
Name:
Title:
107
Exhibit A
[FACE OF NOTE]
AmeriSteel Corporation
8 3/4% [Series B]** Senior Note Due 2008
CUSIP _________
No. _______ $_________________
AmeriSteel Corporation, a Florida corporation (the "Company",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to ___________, or its registered assigns,
the principal sum of ____________________________________ ($___________) on
April 15, 2008.
[Initial Interest Rate: ___% per annum.]*
[Interest Rate: ___% per annum.]**
Interest Payment Dates: April 15 and October 15 of each
year commencing October 15, 1998.
Regular Record Dates: October 1 and April 1 of each
year.
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.
__________________________________
* Include only for Initial Notes.
** Include only for Exchange Notes.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Date: ________, 1998 AMERISTEEL CORPORATION
By: _____________________________
Title:
109
(Form of Trustee's Certificate of Authentication)
This is one of the 8 3/4% [Series B] Senior Notes Due 2008 described in the
within-mentioned Indenture.
STATE STREET BANK AND
TRUST COMPANY, as Trustee
By: _____________________________
Authorized Signatory
110
[REVERSE SIDE OF NOTE]
AmeriSteel Corporation
8 3/4% [Series B] Senior Note Due 2008
1. Principal and Interest.
The Company shall pay the principal of this Note on April 15,
2008.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate of
8 3/4% per annum.
Interest will be payable semiannually (to the holders of
record of the Notes (or any Predecessor Notes) at the close of business on the
October 1 or April 1 immediately preceding the Interest Payment Date) on each
Interest Payment Date, commencing October 15, 1998.
[If (a) the Company fails to file the Exchange Registration
Statement required by the Registration Rights Agreement on or prior to the 60th
calendar day following the Closing Date or (b) the Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective on or
prior to the 150th calendar day following the Closing Date, the interest rate
borne by the Notes will be increased by 0.5 percent per annum for the first 30
days following the 45-day period referred to in clause (a) above or the first
90-day period following the 150-day period referred to in the case of clause
(b) above. Such interest will increase by an additional 0.5 percent per annum
at the beginning of each subsequent 30-day period in the case of clause (a)
above or 90-day period in the case of clause (b) above; provided, however, that
in no event will the interest rate borne by the Notes be increased by more than
1.5 percent. Upon the filing of the Exchange Offer Registration Statement, the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, the interest rate borne by the Notes from the
date of such filing, consummation or effectiveness, as the case may be, will be
reduced to the original interest rate; provided, however, that, if after any
such reduction in interest rate, a different event specified in clause (a) or
(b) above occurs, the interest rate may again be increased pursuant to the
foregoing provisions.]*
__________________________________
* Include only for Initial Notes.
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Interest on this Note will accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid, from April 3, 1998. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and interest on overdue installments of interest, to the extent
lawful, at a rate per annum equal to the rate of interest applicable to the
Notes.
2. Method of Payment.
The Company shall pay interest (except defaulted interest) on
the principal amount of the Notes on each Interest Payment Date to the persons
who are Holders (as reflected in the Register at the close of business on the
Regular Record Date immediately preceding the Interest Payment Date), in each
case, even if the Note is cancelled on registration of transfer or registration
of exchange after such record date; provided that, with respect to the payment
of principal, the Company shall make payment to the Holder that surrenders this
Note to any Paying Agent on or after April 15, 2008.
The principal of (and premium, if any), and interest on the
Notes shall be payable, and the Notes shall be exchangeable and transferable, at
the office or agency of the Company in The City of New York maintained for such
purposes (which initially shall be the agency of the Trustee located at 00
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10006) or, at the option of the
Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear on the Register; provided that all
payments with respect to the Global Note and the Certificated Notes the Holder
of which have given wire transfer instructions to the Company shall be required
to be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar upon written notice thereto
and without notice to any Holder. The Company, any Subsidiary or any Affiliate
of any of them may act as Paying Agent, Registrar or co-registrar.
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4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
April 15, 1998 (the "Indenture"), among the Company, the Subsidiary Guarantors
and State Street Bank and Trust Company, as trustee (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. The Notes are subject
to all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms. 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.
The Notes are general unsecured obligations of the Company.
5. Redemption.
Optional Redemption. The Notes may be redeemed on not less
than 30 nor more than 60 days' prior notice to the Holders at the option of the
Company, in whole or in part, at any time and from time to time on or after
April 15, 2003, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning April 15
of each of the years set forth below:
Redemption
Year Price
---- -----
2003 . . . . . . . . . . . . . . . . . . . . . . . . . 104.375%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . 102.917%
2005 . . . . . . . . . . . . . . . . . . . . . . . . 101.458%
2006 and thereafter . . . . . . . . . . . . . . . . . 100.000%
and thereafter at 100% of the principal amount, together with accrued interest,
if any, to the Redemption Date.
In addition, at any time or from time to time on or prior to
April 15, 2001, the Company may redeem, on one or more occasions, up to 35% of
the sum of (i) the initial aggregate principal amount of the Notes and (ii) the
initial aggregate principal amount of any Additional Notes with the net proceeds
of one or more Public Equity Offerings at a
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Redemption Price equal to 108.75% of the principal amount thereof, plus accrued
interest, if any, to the Redemption Date (subject to the right of holders of
record on the relevant record date to receive interest due on an interest
payment date); provided that, immediately after giving effect to such
redemption, at least 65% of the initial aggregate principal amount of the Notes
excluding the Additional Notes remains outstanding; and provided further that
such redemptions shall occur within 60 days of the date of closing of each
Public Equity Offering.
Notice of a redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder to be redeemed at
such Holder's last address as it appears in the Register. Notes in original
denominations larger than $1,000 may be redeemed in part in integral multiples
of $1,000. On and after the Redemption Date, interest ceases to accrue on
Notes or portions of Notes called for redemption, unless the Company defaults
in the payment of the Redemption Price.
If less than all the Notes or Additional Notes, if any, are to
be redeemed, the particular Notes or Additional Notes to be redeemed will be
selected not more than 60 days prior to the redemption date by the Trustee by
such method as the Trustee deems fair and appropriate.
6. Repurchase upon a Change in Control and Asset Sales.
(a) If a Change of Control occurs at any time, then,
unless irrevocable notice of redemption for all of the Notes is given
within 30 days after the occurrence of such Change of Control in
accordance with the provisions of Section 1015 of the Indenture, each
holder of Notes shall have the right to require that the Company
purchase such holder's Notes or Additional Notes, as applicable, in
whole or in part in integral multiples of $1,000, at a purchase price
in cash equal to 101% of the principal amount of such Notes or
Additional Notes, plus accrued and unpaid interest, if any, to the
date of purchase, pursuant to the offer described below (the "Change
of Control Offer"); and
(b) Upon Asset Sales, the Company may be obligated to
make offers to purchase Notes with a portion of the Net Cash Proceeds
of such Asset Sales at a Redemption Price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date
of purchase.
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7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in
denominations of $1,000 and multiples of $1,000 in excess thereof. A Holder may
register the transfer or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Notes selected for redemption (except the unredeemed portion
of any Note being redeemed in part). Also, it need not register the transfer or
exchange of any Notes for a period of 15 days before a selection of Notes to be
redeemed is made.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all
purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited,
with the Trustee money or U.S. Government Obligations sufficient to pay the
then outstanding principal of, premium, if any, and accrued interest on the
Notes (a) to redemption or maturity, the Company shall be discharged from the
Indenture, the Notes and the Note Guarantees, except in certain circumstances
for certain sections thereof, and (b) to the Stated Maturity, the Company shall
be discharged from certain covenants set forth in the Indenture.
11. Amendment; Supplement; 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 aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the
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6
parties thereto may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of preferred stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens; (vi)
certain Asset Sales; (vii) dividends and other payment restrictions affecting
Restricted Subsidiaries; (viii) mergers, consolidations or sales of assets.
Within 120 days after the end of each fiscal year, the Company must report to
the Trustee on compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and
is continuing, the Trustee or the Holders of not less than 25% in principal
amount of the Notes then outstanding may declare all the Notes to be immediately
due and payable. If a bankruptcy or insolvency default with respect to the
Company or any of its Significant Subsidiaries occurs and is continuing, the
Notes automatically become immediately due and payable. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of at least a majority in
principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power.
15. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
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16. Authentication.
This Note shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Note.
17. Governing Law.
The Notes shall be governed by the law of the State of New
York.
18. 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).
19. 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, the Indenture or the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations of 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.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to AmeriSteel
Corporation, 0000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, Attention:
Chief Executive Officer.
117
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES]
In connection with any transfer of this Note occurring prior to
the date which is the earlier of the date of an effective Registration Statement
or April 3, 2000, the undersigned confirms that, without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
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2
Date: NOTICE: The signature to
this assignment must
correspond with the name as
written upon the face of the
within-mentioned instrument
in every particular, without
alteration or any change
whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an
executive officer
119
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 1015 or Section 1016 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 1015 or Section 1016 of the Indenture, state the
amount (in original principal amount) below:
$_____________________.
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
Tax ID #: __________________
120
Exhibit B
FORM OF SUBSIDIARY GUARANTEE
Each Subsidiary Guarantor hereby jointly and severally,
absolutely, unconditionally and irrevocably guarantees the Notes and
obligations of the Company hereunder and thereunder, and guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
on behalf of such Holder, that: (a) the principal of (and premium, if any) and
interest on the Notes will be paid in full when due, whether at Stated
Maturity, by acceleration, call for redemption or otherwise (including, without
limitation, the amount that would become due but for the operation of the
automatic stay under Section 362(a) of the Federal Bankruptcy Code), together
with interest on the overdue principal, if any, and interest on any overdue
interest, to the extent lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be paid in full or
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 of any such
other obligations, the same will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise, subject, however, in the case of
clauses (a) and (b) above, to the limitations set forth in Section 1306 of the
Indenture.
The obligations of the Subsidiary Guarantors to the Holders of
the Notes and to the Trustee pursuant to this Note Guarantee and the Indenture
are expressly set forth in Article 13 of the Indenture, and reference is hereby
made to such Indenture for the precise terms of this Note Guarantee. The terms
of Article 13 of the Indenture are incorporated herein by reference.
This is a continuing Note Guarantee and shall remain in full
force and effect and shall be binding upon each Subsidiary Guarantor and its
respective successors and assigns to the extent set forth in the Indenture
until full and final payment of all of the Company's obligations under the
Notes and the Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders of Notes and, in the event of any
transfer or assignment of rights by any Holder of Notes or the Trustee, the
rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the
terms and conditions hereof. This is a Note Guarantee of payment and not a
guarantee of collection.
In certain circumstances more fully described in the
Indenture, any Subsidiary Guarantor may be released from its liability under
this Subsidiary Guarantee, and any such release will be effective whether or
not noted herein.
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B-2
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Senior Subordinated
Note upon which this Subsidiary Guarantee is noted shall have been executed by
the Trustee under the Indenture by the manual signature of one of its authorized
officers.
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
AMERSTEEL FINANCE, INC.
Subsidiary Guarantor
By: ______________________________
Name:
Title:
122
Exhibit C
FORM OF LETTER TO BE DELIVERED BY ACCREDITED INVESTORS
, 1998
NationsBanc Xxxxxxxxxx Securities LLC
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, XXX-000-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
AmeriSteel Corporation
0000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Re: Purchase of $130,000,000 principal amount of 8 3/4% Senior
Notes Due 2008 (the "Notes") of AmeriSteel Corporation, a
Florida corporation (the "Company")
Ladies and Gentlemen:
In connection with our purchase of the Notes we confirm that:
1. We understand that the Notes are not being and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and are being sold to us in a transaction that is exempt from the registration
requirements of the Securities Act.
2. We acknowledge that (a) neither the Company, nor the
Initial Purchaser (as defined in the Offering Memorandum dated March 30, 1998
relating to the Notes (the "Final Memorandum")) nor any persons acting on
behalf of the Company or the Initial Purchaser has made any representation to
us with respect to the Company or the offer or sale of any Notes and (b) any
information we desire concerning the Company and the Notes or any other matter
relevant to our decision to purchase the Notes (including a copy of the Final
Memorandum) is or has been made available to us.
3. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Notes, and we are (or any account for which we are purchasing
under paragraph 5 below is) an Institutional
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C-2
"accredited investor" (within the meaning of Rule 501(a)(1), (2), (3), or (7)
of Regulation D under the Securities Act) (an "IAI") able to bear the economic
risk of investment in the Notes.
4. We understand that the minimum principal amount of Notes
that may be purchased by an IAI is $100,000.
5. We are acquiring the Notes for our own account (or for
accounts as to which we exercise sole investment discretion and have authority
to make, and do make, the statements contained in this letter) and not with a
view to any distribution of the Notes, subject, nevertheless, to the
understanding that the disposition of our property will at all times be and
remain within our control.
6. We understand that the Notes will be in registered form
only and that any certificates delivered to us in respect of the Notes will
bear a legend substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AMERISTEEL
CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S
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C-3
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES,
TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRANSFER AGENT, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
7. We agree that in the event that at some future time
we wish to dispose of any of the Notes, we will not do so unless such
disposition is made in accordance with any applicable securities laws of any
state of the United States and:
(a) the Notes are sold in compliance with Rule 144(k)
under the Securities Act or
(b) the Notes are sold in compliance with Rule 144A under
the Securities Act or
(c) the Notes are sold in compliance with Regulation S
under the Securities Act or
(d) the Notes are sold pursuant to an effective
registration statement under the Securities Act or
(e) the Notes are sold to the Company or an affiliate (as
defined in Rule 501(b) of Regulation D) of the Company or
(f) the Notes are disposed of in any other transaction
that does not require registration under the Securities Act, and prior
to such disposition we have furnished to the Company or its designee
an Opinion of Counsel experienced in securities law
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C-4
matters to such effect or such other documentation as the Company or
its designee may reasonably request.
8. We understand that NationsBanc Xxxxxxxxxx Securities
LLC, as the Initial Purchaser, the Company and other persons will rely upon the
truth and accuracy of the statements set forth herein, and we agree that if any
such statements are no longer true or accurate we will promptly so notify the
Company and the Initial Purchaser in writing.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
________________________________________
(Name of Purchaser)
By: ___________________________________
Name:
Title:
Address:
Upon transfer, the Notes should be registered in the name of the new beneficial
owner as follows:
Name:
Address:
Taxpayer ID Number:
126
Exhibit D
FORM OF LETTER TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
__________ __, 0000
Xxxxx Xxxxxx Bank and Trust Company
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
AmeriSteel Corporation
0000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Purchase of $130,000,000 principal amount of 8 3/4%
Senior Notes Due 2008 (the "Notes") of
AmeriSteel Corporation, a Florida corporation (the "Company")
Ladies and Gentlemen:
In connection with our proposed sale of $130,000,000 aggregate
principal amount at maturity of the Senior Notes, we confirm that such sale has
been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended ("Regulation S"), and, accordingly, we
represent that:
(1) the offer of the Senior Note was not made to a person
in the United States or to a U.S. Person as defined in Regulation S;
(2) either (a) at the time the buy order was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States or (b) the transaction was executed in, on
or through the facilities of a designated offshore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the Untied States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
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D-2
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the U.S. Securities Act of
1933, as amended.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(2) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(2) or Rule 904(c)(1), as the case may
be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ___________________________
Authorized Signature