EXHIBIT 4.H
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NATIONAL STEEL CORPORATION
AND
THE CHASE MANHATTAN BANK
and
XXXXX X. XXXXXX, As Trustees
________________
Eleventh Supplemental Indenture
Dated as of March 31, 1999
To
INDENTURE OF MORTGAGE AND DEED OF TRUST
Dated May 1, 1952
________________
First Mortgage Bonds, 9 7/8% Series C and D Due 2009
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TABLE OF CONTENTS*
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions................................................. 10
SECTION 1.02. Other Definitions........................................... 33
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........... 34
SECTION 1.04. Rules of Construction....................................... 34
ARTICLE 2
2009 Bonds Forms
Section 2.01. Forms Generally............................................. 35
Section 2.02. Form of Trustee's Certificate of Authentication............. 36
Section 2.03. Restrictive Legends......................................... 36
Section 2.04. Form of Certificate to Be Delivered upon Termination of
Restricted Period.................................................. 39
ARTICLE 3
The 2009 Series Bonds
Section 3.01. Maturity; Payment........................................... 40
Section 3.02. Denominations............................................... 41
Section 3.03. Execution. Authentication, Delivery and Dating.............. 41
Section 3.04. Temporary 2009 Series Bonds................................. 42
Section 3.05. Registration, Registration of Transfer and Exchange......... 43
Section 3.06. Payment of Interest, Interest Rights Preserved.............. 45
Section 3.07. Persons Deemed Owners....................................... 46
Section 3.08. Cancellation................................................ 46
Section 3.09. Computation of Interest..................................... 47
Section 3.10. Book Entry Provisions for Global Bonds...................... 47
Section 3.11. Transfer Provisions......................................... 48
Section 3.12. Form of Regulation S Certificate............................ 57
Section 3.13. Form of Rule 144A Certificate............................... 60
Section 3.14. CUSIP Numbers............................................... 61
Section 3.15. Notice to Holders; Waiver................................... 61
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* This Table of Contents has been inserted for purposes of convenience and
ready reference. It does not constitute a part of the Eleventh Supplemental
Indenture.
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ARTICLE 4
Particular Covenants of the Corporation
Section 4.01. Payment of Securities....................................... 62
Section 4.02. SEC Reports................................................. 62
Section 4.03. Limitation on Lines of Business............................. 63
Section 4.04. Covenant Suspension......................................... 63
Section 4.05. Limitation on Debt and Restricted Subsidiary Preferred
Stock.............................................................. 63
Section 4.06. Limitation on Restricted Payments........................... 63
Section 4.07. Limitation on Pledged Subsidiaries to Incur Indebtedness
Or Issue Capital Stock............................................. 66
Section 4.08. Limitation on Sale of Mortgaged Property.................... 67
Section 4.09. Change of Control........................................... 68
Section 4.10. Limitation on Sale of Assets Other Than Mortgaged
Property........................................................... 70
Section 4.11. Limitation on Restrictions on Distributions from Restricted
Subsidiaries....................................................... 74
Section 4.12. Limitation on Transactions with Affiliates.................. 75
Section 4.13. Limitation on Sale and Leaseback Transactions............... 77
Section 4.14. Designation of Restricted and Unrestricted Subsidiaries..... 77
Section 4.15. Compliance Certificate...................................... 78
Section 4.16. Further Instruments and Acts................................ 78
ARTICLE 5
Successor Corporation
Section 5.01. When Corporation May Merge or Transfer Assets............... 78
ARTICLE 6
Defaults And Remedies
Section 6.01. Events of Default........................................... 80
Section 6.02. Acceleration................................................ 82
Section 6.03. Other Remedies.............................................. 82
Section 6.04. Waiver of Defaults.......................................... 83
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ARTICLE 7
Redemption Of 2009 Series Bonds
Section 7.01. Optional Redemption of 2009 Series Bonds; Premiums
Payable........................................................... 83
Section 7.02. Surrender of Partially-redeemed 2009 Series Bonds.......... 84
Section 7.03. Regarding Issue, Transfer and Exchange of 2009 Series
Bonds to be Redeemed.............................................. 84
Section 7.04. Notices to Trustee......................................... 84
Section 7.05. Notice of Redemption....................................... 84
Section 7.06. Effect of Notice of Redemption............................. 85
ARTICLE 8
Miscellaneous
Section 8.01. Acceptance of Trusts....................................... 86
Section 8.02. Benefits Restricted to Parties and Holders of Bonds........ 86
Section 8.03. Execution in Counterparts.................................. 86
Section 8.04. Original Indenture and Supplements Construed as One
Instrument........................................................ 86
Section 8.05. Amount Advanced under Indenture............................ 86
Section 8.06. With Consent of Holders.................................... 86
Section 8.07. Governing Law.............................................. 87
Section 8.08. Compliance with Trust Indenture Act........................ 87
Section 8.09. Recitals................................................... 87
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THIS ELEVENTH SUPPLEMENTAL INDENTURE (hereinafter called "THIS SUPPLEMENTAL
INDENTURE"), dated as of March 31, 1999 made by and among NATIONAL STEEL
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware (hereinafter called the "CORPORATION"), THE CHASE MANHATTAN BANK, a New
York corporation (hereinafter called the "TRUSTEE") and XXXXX X. XXXXXX
(hereinafter called the "INDIVIDUAL TRUSTEE"), as Trustees under the Indenture
hereinafter referred to (the Trustee and the Individual Trustee being
hereinafter collectively called the "TRUSTEES").
WHEREAS, under date of May 1, 1952, the Corporation and Great Lakes Steel
Corporation, then a wholly-owned subsidiary of the Corporation which was
subsequently merged into the Corporation, entered into an Indenture of Mortgage
and Deed of Trust (hereinafter called the "ORIGINAL INDENTURE") with City Bank
Farmers Trust Company, as Trustee, and Xxxxx X. Xxxxxx, as Individual Trustee;
and
WHEREAS, the Original Indenture has heretofore been amended and
supplemented by a First Supplemental Indenture dated as of November 1, 1956, a
Second Supplemental Indenture dated as of January 1, 1957, a Third Supplemental
Indenture dated as of June 1, 1959, a Fourth Supplemental Indenture dated as of
December 1, 1960, a Fifth Supplemental Indenture dated as of May 1, 1962, a
Sixth Supplemental Indenture dated as of December 1, 1970, a Seventh
Supplemental Indenture dated as of September 19, 1973, an Eighth Supplemental
Indenture dated as of September 19, 1973, a Ninth Supplemental Indenture dated
as of August 1, 1976, and a Tenth Supplemental Indenture dated as of March 8,
1999; and
WHEREAS, The Chase Manhattan Bank is now the duly appointed successor
Trustee under the Original Indenture and all instruments supplemental thereto
(hereinafter together called the "INDENTURE") and XXXXX X. XXXXXX is now the
duly appointed successor Individual Trustee under the Indenture; and
WHEREAS, there have heretofore been authenticated and delivered pursuant to
the Original Indenture First Mortgage Bonds, 3 1/8% Series Due 1982, there have
heretofore been authenticated and delivered pursuant to the Original Indenture
and said First Supplemental Indenture First Mortgage Bonds, 3 7/8% Series Due
1986, there have heretofore been authenticated and delivered pursuant to the
Original Indenture, as theretofore supplemented, and said Third Supplemental
Indenture First Mortgage Bonds, 4 5/8% Series Due 1989, there have heretofore
been authenticated and delivered pursuant to the Original Indenture, as
theretofore supplemented, and said Sixth Supplemental Indenture First Mortgage
Bonds, 8% Series Due 1995, there have heretofore been authenticated and
delivered pursuant to the Original Indenture, as theretofore supplemented, and
said Seventh Supplemental Indenture First Mortgage Bonds, 4 7/8% Series Due 1987
and First Mortgage Bonds, 5.30% Series Due 1990, there have heretofore been
authenticated and delivered pursuant to the Original Indenture, as theretofore
supplemented, and said Ninth Supplemental Indenture First Mortgage Bonds, 83/8%
Series Due 2006, and there have heretofore been authenticated and delivered
pursuant to the Original Indenture, as theretofore supplemented, and said Tenth
Supplemental Indenture First Mortgage Bonds, 9 7/8% Series A Due 2009; and
WHEREAS, the Corporation has determined to issue, pursuant to the Original
Indenture, and this Supplemental Indenture, two series of Bonds to be designated
the "First Mortgage Bonds, 9 7/8% Series C due 2009" in the aggregate principal
amount of $75,000,000 (hereinafter called the "INITIAL 2009 SERIES BONDS") and
the "First Mortgage Bonds, 9 7/8% Series D due 2009" in the initial aggregate
principal amount of up to $300,000,000, (hereinafter called the "EXCHANGE 2009
SERIES BONDS" and, together with the 2009 Series C Bonds, the "2009 SERIES
BONDS"), all as hereinafter more fully provided; and
WHEREAS, the fully registered 2009 Series Bonds and the Trustee's
Authentication Certificate to be endorsed on all the 2009 Series Bonds are to be
substantially in the following forms, with necessary or appropriate variations,
omissions and insertions, as permitted or required by the Original Indenture and
this Supplemental Indenture:
[FORM OF FACE OF 2009 SERIES BOND]
NATIONAL STEEL CORPORATION
First Mortgage Bond, 9 7/8% Series [C/D] Due 2009
Cusip No.........................
$.............. No................
NATIONAL STEEL CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (hereinafter called the "CORPORATION", which term
shall include any successor corporation to the extent provided in the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to or registered
assigns, the principal sum of
Dollars on March 1, 2009, in such coin or currency of the United States of
America as at the time of
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payment shall be legal tender for public and private debts, and to pay interest
thereon from March 8, 1999 in like coin or currency, semiannually on March 1 and
September 1 of each year, at the rate of 9 7/8% per annum, from the March 1 or
September 1, as the case may be, next preceding the date of this Bond to which
interest has been paid, unless the date hereof is a date to which interest has
been paid, in which case from the date of this Bond, or unless no interest has
been paid on the First Mortgage Bonds, 9 7/8% Series [C/D] Due 2009 (hereinafter
called the "2009 SERIES BONDS"), in which case from March 8, 1999, until payment
of said principal sum has been made or duly provided for. Notwithstanding the
foregoing, when there is no existing default in the payment of interest on the
2009 Series Bonds, if the date hereof is after a regular record date (which
shall be the close of business on February 15 or August 15, as the case may be,
next preceding an interest payment date) and before the next succeeding interest
payment date, this Bond shall bear interest from such interest payment date;
provided, however, that if the Corporation shall default in the payment of
interest due on such interest payment date, then this Bond shall bear interest
from the next preceding interest payment date to which interest has been paid,
or, if no interest has been paid on the 2009 Series Bonds, from March 8, 1999.
The interest so payable, and punctually paid or duly provided for, on any
interest payment date will, as provided in said Indenture, be paid to the person
in whose name this Bond (or one or more predecessor Bonds) is registered on the
regular record date for such interest payment date. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. Both the principal of,
premium, if any, and interest on, this Bond are payable at the office or agency
of the Corporation in the Borough of Manhattan, The City of New York, New York;
provided, that interest may be paid, at the option of the Corporation, by check
mailed to the person entitled thereto at his address last appearing on the Bond
register or by wire transfer to an account maintained by the payee located in
the United States provided that appropriate written wire transfer instructions
have been provided at least two Business Days prior to the relevant record date.
[The Holder of this Bond is entitled to the benefits of the Registration
Rights Agreement, dated as of March 31, 1999 (the "Registration Rights
Agreement"), among the Corporation and the Initial Purchasers named therein. In
the event that either (a) an Exchange Offer Registration Statement (as such term
is defined in the Registration Rights Agreement) is not filed with the SEC on or
prior to the 60th day following the date of the Tenth Supplemental Indenture (as
defined in the Eleventh Supplemental Indenture), (b) such Exchange Offer
Registration Statement has not been declared effective on or prior to the 150th
day following the date of the Tenth Supplemental Indenture, (c) the Exchange
Offer (as such term is defined in the Registration Rights Agreement) is not
consummated or, if required, a Shelf Registration Statement (as such term is
defined in the Registration Rights Agreement) with respect to the Bond is not
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declared effective on or prior to the 180th day following the date of the Tenth
Supplemental Indenture or (d) the Exchange Offer Registration Statement is
declared effective but thereafter ceases to be effective or usable (each such
event referred to in clauses (a) through (d) above, a "Registration Default")
then the per annum interest rate borne by this Bond shall be increased by 0.25
percent per annum for the first 90-day period following the Registration
Default. The per annum interest rate borne by this Bond will increase by an
additional 0.25 percent per annum for each subsequent 90-day period following
such Registration Default to a maximum of 1.00 percent per annum until such
Registration Default has been cured. Upon (w) the filing of the Exchange Offer
Registration Statement after the 60-day period described in clause (a) above,
(x) the effectiveness of the Exchange Offer Registration Statement after the
150-day period described in clause (b) above or (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 180-day period described in clause (c) above, or (z) the
cure of any Registration Default described in clause (d) above, the interest
rate borne by the Bond from the date of such filing, effectiveness or
consummation, as the case may be, will be reduced to the original interest rate
set forth in the title of this Bond above if the Corporation is otherwise in
compliance with this paragraph; provided, however, that, if after such reduction
in interest rate, a different event specified in clause (a), (b), (c) or (d)
above occurs, the interest rate may again be increased and thereafter reduced
pursuant to the foregoing provisions.]**
Reference is made to the further provisions of this Bond set forth on the
reverse hereof, which shall have the same effect as though fully set forth at
this place.
This Bond shall not be entitled to any benefit under the Indenture, or
become valid or obligatory for any purpose, until The Chase Manhattan Bank, the
Trustee under the Indenture, or a successor Trustee thereto under the Indenture,
shall have signed the form of certificate hereon.
IN WITNESS WHEREOF, National Steel Corporation has caused this Bond to be
duly executed under its corporate seal.
Dated:
NATIONAL STEEL CORPORATION
___________________
** To be inserted in the case of a Bond that has not been registered
under the Securities Act.
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By: _________________________________
Name:
Title:
Attest:
______________________________________
Title:
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the Bonds, of the series designated therein, described
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as
Trustee,
By: _________________________________
Authorized Officer
[FORM OF REVERSE OF 2009 SERIES BOND]
NATIONAL STEEL CORPORATION
First Mortgage Bond, 9 7/8% Series [C/D] Due 2009
This Bond is one of the Bonds of the Corporation (hereinafter called the
"BONDS") all duly authorized or from time to time to be duly authorized and not
otherwise limited in aggregate principal amount, all issued and to be issued in
one or more series from time to time under and (except as otherwise provided in
the Indenture hereinafter mentioned) equally secured by an Indenture of Mortgage
and Deed of Trust dated May 1, 1952, executed by the Corporation, as Mortgagor,
and by Great Lakes Steel Corporation, a former wholly-owned subsidiary of the
Corporation which was merged into the Corporation, as Co-Mortgagor, to City Bank
Farmers Trust Company, as Trustee and Xxxxx X. Xxxxxx, as Individual Trustee,
under which The Chase Manhattan Bank is now successor Trustee and XXXXX X.
XXXXXX is now successor Individual Trustee (said Trustee and said Individual
Trustee from time to time being herein together called the "TRUSTEES"), to which
Indenture of Mortgage and Deed of Trust and all instruments
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supplemental thereto (hereinafter together sometimes referred to as the
"INDENTURE") reference is hereby made for a description of the properties
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the Bonds in respect of the security, the rights, duties and
immunities of the Trustees and the rights and obligations of the Corporation in
respect of the Bonds, and the terms and conditions upon which the Bonds are, and
are to be, secured. The Bonds of different series may be for various principal
sums, may mature at different times, may bear interest at different rates and
may otherwise vary as in the Indenture provided. This Bond is issued pursuant to
the Eleventh Supplemental Indenture dated as of March 31, 1999, executed by the
Corporation and the Trustees (the "ELEVENTH SUPPLEMENTAL INDENTURE"), and is the
series of Bonds described in said Eleventh Supplemental Indenture and designated
as the "First Mortgage Bonds, 9 7/8% Series [C/D] Due 2009" of the
Corporation (hereinafter called the "2009 SERIES BONDS"), limited in aggregate
principal amount to [$75,000,000/$300,000,000] at any one time outstanding,
except as otherwise provided in the Original Indenture with respect to Bonds of
such Series issued in exchange and substitution for Bonds of such Series as have
been mutilated, destroyed, lost or stolen or as otherwise provided in the
Eleventh Supplemental Indenture. The terms of the 2009 Series Bonds include
those stated in the Indenture and those made or deemed to be part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
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77aaa-77bbbb) as amended and as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The 2009 Series Bonds are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
those terms.
The provisions of the Indenture may be modified or amended by a
supplemental indenture to the extent and in the manner provided in the
Indenture, with the consent and approval of the holders of at least 66 2/3% in
aggregate principal amount of the Bonds at the time outstanding under the
Indenture; provided that no such modification or amendment shall be made so as
to (a) alter the date fixed in any of the Bonds or coupons for the payment of
the principal of, or any installment of interest on, such Bonds, or otherwise
modify the terms of payment of the principal at maturity of, or interest on, the
Bonds or impose any conditions with respect to such payment or affect the right
of any Bondholder to institute suit for the enforcement of any such payment on
or after the respective due dates expressed in the Bonds or in such coupons
appertaining thereto, all of which shall always be unconditional, (b) alter the
amount of principal of, or the rate of interest or premium payable on, any of
the Bonds, (c) affect the rights of the holders of less than all the Bonds of
any series then outstanding, (d) affect the rights of the holders of one or
more, but less than all, series of Bonds then outstanding, except with the
consent of the holders of not less than 66 2/3% in aggregate principal amount of
the Bonds of each of the series so affected then
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outstanding, or (e) reduce the percentage of the principal amount of Bonds, or
of the Bonds of any series, the consent of the holders of which shall be
required for the authorization of any such modification or amendment.
Except as set forth in the next paragraph, the 2009 Series Bonds may not be
redeemed prior to March 1, 2004. Thereafter, the 2009 Series Bonds will be
redeemable at the option of the Corporation, in whole or in part, on not less
than 30 nor more than 60 days' prior notice mailed to each Holder of 2009 Series
Bond being redeemed and otherwise in accordance with the procedures set forth in
the Indenture, at the following redemption prices (expressed as 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 record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on or after March 1 of the years set forth below:
YEAR REDEMPTION PRICE
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2004........................................ 104.938%
2005........................................ 103.292%
2006........................................ 101.646%
2007 and thereafter......................... 100.000%
Notwithstanding the foregoing, at any time and from time to time prior to
March 1, 2002, the Corporation may redeem up to a maximum of 35% of the original
aggregate principal amount of the 2009 Series Bonds with the proceeds of one or
more Public Equity Offerings, at a redemption price equal to 109.875% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that after giving effect to any such redemption, at least 65%
of the original aggregate principal amount of the 2009 Series Bonds remains
outstanding. Any such redemption shall be made within 90 days of such Public
Equity Offering upon not less than 30 nor more than 60 days' notice mailed to
each Holder of 2009 Series Bond being redeemed and otherwise in accordance with
the procedures set forth in the Indenture.
Upon a Change of Control, any Holder of 2009 Series Bonds will have the
right, subject to certain conditions specified in the Indenture, to cause the
Corporation to repurchase all or any part of the 2009 Series Bonds of such
Holder at a purchase price equal to 101% of the principal amount of the 2009
Series Bonds to be repurchased plus accrued and unpaid interest, if any, to the
date of repurchase (subject to the right of Holders of record on the relevant
record date to
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receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
This Bond is transferable by the registered owner hereof or by his duly
authorized attorney at the agency of the Corporation in the Borough of
Manhattan, The City of New York, New York, upon surrender of this Bond for
cancellation, accompanied by a written instrument of transfer in a form approved
by the Corporation or the Trustee, duly executed by the registered owner of this
Bond, and thereupon one or more new registered 2009 Series Bonds for the same
aggregate principal amount will be issued in the name of the transferee or
transferees in exchange herefor, as provided in the Indenture.
2009 Series Bonds are issuable only as fully registered Bonds without
coupons in the denominations of $1,000 and integral multiples thereof. In the
manner provided in the Indenture, 2009 Series Bonds may be exchanged for a like
aggregate principal amount of 2009 Series Bonds of other authorized
denominations.
No service charge will be made for any such transfer or exchange, but the
Corporation may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on, this Bond, or for any claim based hereon or on the
Indenture, against any incorporator, or against any shareholder, director or
officer, past, present or future, of the Corporation or of any predecessor or
successor corporation, as such, either directly or through the Corporation or
any such predecessor or successor corporation, whether by virtue of any
constitutional provision, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitutional provision, statute or otherwise, of
incorporators, shareholders, directors, or officers being released by every
holder hereof by the acceptance of this Bond and as part of the consideration
for the issue hereof, and being likewise released by the terms of the Indenture.
The Indenture may be canceled and the lien thereof discharged if the
Corporation shall pay, or make provision for the payment of, the principal,
interest and premium, if any, on all the Bonds at the times and in the manner
stipulated in the Indenture.
Any moneys deposited with the Trustee by the Corporation for the payment or
redemption of 2009 Series Bonds, and remaining unclaimed by the Holders for six
years after the date of maturity or the date fixed for redemption of
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such Bonds upon written request and subject to applicable abandoned property
laws, shall be repaid to the Corporation and thereafter such Holders shall be
limited to a claim against the Corporation.
In case an event of default, as defined in the Indenture, shall occur, the
principal of all the Bonds at any such time outstanding under the Indenture may
be declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that in
certain events, such default and its consequences may be waived and such
declaration may be rescinded by the holders of a majority in principal amount of
the Bonds outstanding.
In addition, in case an Eleventh Supplemental Indenture Event of Default
(as defined in the Eleventh Supplemental Indenture), shall occur, the principal
of all the 2009 Series Bonds at any such time outstanding under the Indenture
may be declared or may become due and payable, upon the conditions and in the
manner and with the effect provided in the Eleventh Supplemental Indenture. The
Eleventh Supplemental Indenture provides that in certain events, such default
and its consequences may be waived and such declaration may be rescinded by the
holders of a majority in principal amount of the 2009 Series Bonds outstanding.
THIS 2009 SERIES BOND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The person in whose name this Bond shall be registered shall be deemed and
regarded as the absolute owner hereof for all purposes, and payment of or on
account of the principal of, premium, if any, and interest on this Bond shall be
made only to such registered owner. All such payments shall be valid and
effectual to satisfy and discharge the liability upon this Bond to the extent of
the sum or sums so paid.
The Corporation will furnish to any Holder of 2009 Series Bonds upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this 2009 Series Bond.
___________________
And
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WHEREAS, all acts and proceedings required by law duly to authorize the
execution and delivery of this Supplemental Indenture have been done and taken
and the execution and delivery of this Supplemental Indenture have been in all
respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That the Corporation, in consideration of the premises, and of the purchase
and acceptance of the 2009 Series Bonds by the registered owners thereof, and of
the sum of one dollar to the Corporation duly paid by the Trustees at or before
the ensealing and delivery of these presents, and for other valuable
considerations, the receipt whereof is hereby acknowledged, has entered into
this Supplemental Indenture with the Trustees to create the 2009 Series Bonds,
to establish the forms thereof and to declare the terms and conditions upon and
subject to which they are to be issued:
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.0. Definitions.
"ADDITIONAL ASSETS" means (a) any Property (other than cash, Cash
Equivalents or securities) to be owned by the Corporation or any Restricted
Subsidiary; or (b) Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Corporation or another Restricted Subsidiary from any Person other than the
Corporation or an Affiliate of the Corporation.
"AFFILIATE" of any specified Person means (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 who is a director or
officer of (i) such specified Person, (ii) any Subsidiary of such specified
Person or (iii) any Person described in clause (a) above. For the purposes of
this definition, "CONTROL" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing. For purposes of the covenants contained in Section 4.10, Section
4.12 and the definition of the term "ADDITIONAL ASSETS" only, "AFFILIATE" shall
also mean any
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beneficial owner of shares representing 5% or more (on a fully diluted basis) of
the total voting power of the Voting Stock of the Corporation and/or of rights
or warrants to purchase Voting Stock representing 5% or more (on a fully diluted
basis) of the total voting power of the Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"AFFILIATE JOINT VENTURE" means a Person, other than a Subsidiary of the
Corporation, in which the Corporation or any Restricted Subsidiary has an
Investment and which is an Affiliate of the Corporation only because the
Corporation or such Restricted Subsidiary has the ability to control such
Person, and for no other reason.
"ASSET SALE" means any sale, lease, transfer, issuance or other disposition
(or series of related sales, leases, transfers, issuances or dispositions) by
the Corporation or any Restricted Subsidiary, including any disposition by means
of a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "DISPOSITION"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares), (b)
all or substantially all the assets of any division or line of business of the
Corporation or any Restricted Subsidiary or (c) any other assets of the
Corporation or any Restricted Subsidiary outside of the ordinary course of
business of the Corporation or such Restricted Subsidiary (other than (i) in the
case of clauses (a), (b) and (c) above, any disposition by a Restricted
Subsidiary to the Corporation or by the Corporation or a Restricted Subsidiary
to a Wholly Owned Subsidiary, (ii) in the case of clauses (b) and (c) above, (x)
any disposition of accounts receivable or inventory by or to the Corporation or
any Restricted Subsidiary to or from NSFC or any other bankruptcy-remote,
special-purpose Subsidiary of the Corporation in connection with the Incurrence
of Debt by such Subsidiary under the Credit Facilities or (y) any disposition of
Property having, together with other Property disposed of pursuant to such
clauses during the same fiscal year, an aggregate Fair Market Value of less than
$25 million, (iii) in the case of clause (c) above, (x) any disposition effected
in compliance with Section 5.01(a) and (y) a disposition of obsolete assets in
the ordinary course of business and (iv) in the case of clauses (a), (b) and (c)
above, but only for the purposes of Section 4.10, dispositions of Mortgaged
Property made in compliance with Section 4.08.
"ATTRIBUTABLE DEBT" in respect of a Sale and Leaseback Transaction means,
at any date of determination, (a) if such Sale and Leaseback Transaction is a
Capital Lease Obligation, the amount of Debt represented thereby according to
the definition of the term "Capital Lease Obligation" and (b) in all other
instances, the present value (discounted at the actual rate of interest implicit
in such transaction, compounded annually) of the total obligations of the lessee
for rental
11
payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended).
"AVERAGE LIFE" means, as of any date of determination, with respect to any
Debt or Preferred Stock, the quotient obtained by dividing (a) the sum of the
product of the numbers of years (rounded to the nearest one-twelfth of one year)
from the date of determination to the dates of each successive scheduled
principal payment of such Debt or redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b) the sum of
all such payments.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation or any
committee thereof duly authorized to act on behalf of such Board.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification.
"BUSINESS DAY", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the 2009 Series Bonds,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"CAPITAL EXPENDITURE DEBT" means Debt Incurred by any Person to finance a
capital expenditure so long as (a) such capital expenditure is or should be
included as an addition to "Property, Plant and Equipment" in accordance with
GAAP and (b) such Debt is Incurred within 180 days of the date such capital
expenditure is made.
"CAPITAL LEASE OBLIGATION" means any obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP; and the amount of Debt represented by such obligation shall be the
capitalized amount of such obligations determined in accordance with GAAP; and
the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty. For purposes of
Section 4.07, a Capital Lease Obligation shall be deemed secured by a Lien on
the Property being leased.
12
"CAPITAL STOCK" means, with respect to any Person, any shares or other
equivalents (however designated) of corporate stock, partnership interests or
any other participations, rights, warrants, options or other interests in the
nature of an equity interest in such Person, including Preferred Stock, but
excluding any debt security convertible or exchangeable into such equity
interest.
"CAPITAL STOCK SALE PROCEEDS" means the aggregate Net Cash Proceeds
received by the Corporation from the issuance or sale (other than to a
Subsidiary of the Corporation or an employee stock ownership plan or trust
established by the Corporation or any of its Subsidiaries for the benefit of
their employees) by the Corporation of any class of its Capital Stock (other
than Disqualified Stock) after March 8, 1999.
"CASH EQUIVALENTS" means (a) any evidence of Debt with a maturity of 360
days or less issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support
thereof), (b) certificates of deposit, Eurodollar time deposits, bankers'
acceptances and other similar unsubordinated debt instruments with a maturity of
360 days or less and overnight bank deposits of any bank, trust company,
investment bank or other financial institution (including any branch thereof)
that is organized or regulated under the laws of the United States of America or
any state thereof, and which bank, trust company, investment bank or other
financial institution has capital, surplus and undivided profits aggregating in
excess of US$1.0 billion and has outstanding unsecured debt which is rated "A3"
or higher by Xxxxx'x or "A-" or higher by S&P; provided that up to $25 million
of the aggregate amount of investments of the type described in this clause (b)
may be with banks (or branches thereof) of the type described above with
outstanding unsecured debt that has an Investment Grade Rating or higher, (c)
commercial paper with a maturity of 360 days or less issued by a corporation
that is not an Affiliate of the Corporation and is organized under the laws of
any state of the United States or the District of Columbia and rated at least A-
2 by S&P or at least P-2 by Xxxxx'x, (d) repurchase obligations with a term of
not more than 30 days for underlying securities of the types described in
clauses (a) and (b) above entered into with a bank, trust company, investment
bank or other financial institution meeting the qualifications described in
clause (b) above or (e) funds (including, without limitation, any fund for which
the Trustee or any affiliate of the Trustee serves as an administrator,
shareholder servicing agent and/or custodian or subcustodian) invested
exclusively in cash and investments of the type described in clauses (a) through
(d) above.
"CHANGE OF CONTROL" means the occurrence of any of the following events:
13
(a) if any "person" or "group" (as such terms are used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act or any successor provisions to
either of the foregoing), including any group acting for the purpose of
acquiring, holding, voting or disposing of securities within the meaning of
Rule 13d-5(b)(1) under the Exchange Act, other than Permitted Holders,
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act, except that a Person will be deemed to have "beneficial ownership" of
all shares that any such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of 30% or more of the total voting power of all
classes of the Voting Stock of the Corporation; or
(b) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the assets
of the Corporation and the Restricted Subsidiaries, considered as a whole
(other than a disposition of such assets as an entirety or virtually as an
entirety to a Wholly Owned Subsidiary) shall have occurred, or the
Corporation merges, consolidates or amalgamates with or into any other
Person or any other Person merges, consolidates or amalgamates with or into
the Corporation, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Corporation is reclassified into or
exchanged for cash, securities or other Property, other than any such
transaction where (i) the outstanding Voting Stock of the Corporation is
reclassified into or exchanged for Voting Stock of the surviving
corporation and (ii) the Holders of the Voting Stock of the Corporation
immediately prior to such transaction own, directly or indirectly, not less
than a majority of the Voting Stock of the surviving corporation
immediately after such transaction and in substantially the same proportion
as before the transaction; or
(c) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election or appointment by such Board or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% 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 for any reason to constitute
a majority of the Board of Directors then in office; or
(d) the shareholders of the Corporation shall have approved any plan
of liquidation or dissolution of the Corporation.
14
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMODITY PRICE PROTECTION AGREEMENT" means, in respect of a Person, any
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"CONSOLIDATED CURRENT LIABILITIES" means, as of any date of determination,
the aggregate amount of liabilities of the Corporation and its consolidated
Restricted Subsidiaries which may properly be classified as current liabilities
(including taxes accrued as estimated), after eliminating (a) all intercompany
items between the Corporation and any Restricted Subsidiary or between
Restricted Subsidiaries and (b) all current maturities of long-term Debt.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) the aggregate amount of EBITDA for the period of
the most recent four consecutive fiscal quarters ending at least 45 days prior
to such determination date to (b) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that (i) if the Corporation or any
Restricted Subsidiary has Incurred any Debt since the beginning of such period
that remains outstanding or if the transaction giving rise to the need to
calculate the Consolidated Interest Coverage Ratio is an Incurrence of Debt, or
both, Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Debt as if such Debt had been
Incurred on the first day of such period and the discharge of any other Debt
repaid, repurchased, defeased or otherwise discharged with the proceeds of such
new Debt as if such discharge had occurred on the first day of such period, (ii)
if since the beginning of such period the Corporation or any Restricted
Subsidiary shall have made any Asset Sale or if the transaction giving rise to
the need to calculate the Consolidated Interest Coverage Ratio is an Asset Sale,
or both, EBITDA for such period shall be reduced by an amount equal to the
EBITDA (if positive) directly attributable to the assets which are the subject
of such Asset Sale for such period, or increased by an amount equal to the
EBITDA (if negative) directly attributable thereto for such period, in either
case as if such Asset Sale had occurred on the first day of such period and
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any Debt of
the Corporation or any Restricted Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to the Corporation and its continuing
Restricted Subsidiaries in connection with such Asset Sale for such period, as
if such Asset Sale had occurred on the first day of such period (or, if the
Capital Stock of any Restricted Subsidiary is sold, by an amount equal to the
Consolidated Interest Expense for such period directly attributable to the Debt
of such Restricted Subsidiary to the extent the Corporation and its continuing
15
Restricted Subsidiaries are no longer liable for such Debt after such sale),
(iii) if since the beginning of such period the Corporation or any Restricted
Subsidiary (by merger or otherwise) shall have made an Investment in any
Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or
an acquisition of Property, including any acquisition of Property occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Debt) as if
such Investment or acquisition occurred on the first day of such period and (iv)
if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Corporation or any
Restricted Subsidiary since the beginning of such period) shall have made any
Asset Sale, Investment or acquisition of Property that would have required an
adjustment pursuant to clause (ii) or (iii) above if made by the Corporation or
a Restricted Subsidiary during such period, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto as if such Asset Sale, Investment or acquisition occurred on the first
day of such period. For purposes of this definition, whenever pro forma effect
is to be given to an acquisition of Property, the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with
any Debt incurred in connection therewith, the pro forma calculations shall be
determined in good faith by a responsible financial or accounting Officer and as
further contemplated by the definition of the term "PRO FORMA". If any Debt
bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Debt shall 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 Interest Rate Agreement applicable to such Debt if such
Interest Rate Agreement has a remaining term in excess of 12 months).
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total interest
expense of the Corporation and its consolidated Restricted Subsidiaries, plus,
to the extent not included in such total interest expense, and to the extent
Incurred by the Corporation or its Restricted Subsidiaries, (a) interest expense
attributable to capital leases, (b) amortization of debt discount and debt
issuance cost, (c) capitalized interest, (d) non-cash interest expenses, (e)
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, (f) net costs associated with
Hedging Obligations under Interest Rate Agreements (including amortization of
fees), (g) Redeemable Dividends, (h) Preferred Stock dividends in respect of all
Preferred Stock of Restricted Subsidiaries held by Persons other than the
Corporation or a Wholly Owned Subsidiary, and (i) interest accruing on any Debt
of any other Person to
16
the extent such Debt is Guaranteed by the Corporation or any Restricted
Subsidiary.
"CONSOLIDATED NET INCOME" means, for any period, the net income (loss) of
the Corporation and its consolidated Subsidiaries; provided, however, that there
shall not be included in such Consolidated Net Income (a) any net income (loss)
of any Person (other than the Corporation) if such Person is not a Restricted
Subsidiary, except that (i) subject to the exclusion contained in clause (d)
below, the Corporation's equity in the net income of any such Person for such
period shall be included in such Consolidated Net Income up to the aggregate
amount of cash distributed by such Person during such period to the Corporation
or a Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution to a Restricted Subsidiary, to the
limitations contained in clause (c) below) and (ii) the Corporation's equity in
a net loss of any such Person (other than an Unrestricted Subsidiary) for such
period shall be included in determining such Consolidated Net Income, (b) any
net income (loss) of any Person acquired by the Corporation or any of its
consolidated Subsidiaries in a pooling of interests transaction for any period
prior to the date of such acquisition, (c) any net income (loss) of any
Restricted Subsidiary to the extent that such Restricted Subsidiary is subject
to restrictions, directly or indirectly, on the payment of dividends or the
making of distributions, directly or indirectly, to the Corporation, except that
(i) subject to the exclusion contained in clause (d) below, the Corporation's
equity in the net income of any such Restricted Subsidiary for such period shall
be included in such Consolidated Net Income up to the aggregate amount of cash
distributed by such Restricted Subsidiary during such period to the Corporation
or another Restricted Subsidiary as a dividend or other distribution (subject,
in the case of a dividend or other distribution to another Restricted
Subsidiary, to the limitation contained in this clause) and (ii) the
Corporation's equity in a net loss of any such Restricted Subsidiary for such
period shall be included in determining such Consolidated Net Income, (d) any
gain (but not loss) realized upon the sale or other disposition of any Property
of the Corporation or any of its consolidated Subsidiaries (including pursuant
to any Sale and Leaseback Transaction) which is not sold or otherwise disposed
of in the ordinary course of business and (e) any extraordinary gain or loss.
"CONSOLIDATED NET WORTH" means the total of the amounts shown on the
consolidated balance sheet of the Corporation and its Restricted Subsidiaries as
of the end of the most recent fiscal quarter of the Corporation ending at least
45 days prior to the taking of any action for the purpose of which the
determination is being made, as (a) the par or stated value of all outstanding
Capital Stock of the Corporation plus (b) paid-in capital or capital surplus
relating to such Capital Stock plus (c) any retained earnings or earned surplus
less (i) any accumulated
17
deficit, (ii) any amounts attributable to Disqualified Stock and (iii) any
adjustments for pension liabilities.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office on the date of execution of this Eleventh
Supplemental Indenture is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000.
"CORPORATION" means the party named as such in this Indenture until a
successor replaces it pursuant to the applicable provisions hereof and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture securities.
"CORPORATION REQUEST" or "CORPORATION ORDER" means a written request or
order signed in the name of the Corporation by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"CREDIT FACILITIES" means the Receivables Purchase Agreement and the
Inventory Facilities, in each case together with any extensions, revisions,
refinancings or replacements thereof by a lender or syndicate of lenders
(including through the sale of accounts receivable or inventory to such lender
or lenders or to NSFC or any other bankruptcy-remote, special-purpose Subsidiary
of the Corporation that purchases such accounts receivable or inventory).
"CURRENCY EXCHANGE PROTECTION AGREEMENT" means, in respect of a Person, any
foreign exchange contract, currency swap agreement, currency option or other
similar agreement or arrangement designed to protect such Person against
fluctuations in currency exchange rates.
"DEBT" means, with respect to any Person on any date of determination
(without duplication), (a) the principal in respect of (i) debt of such Person
for money borrowed and (ii) debt evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (b) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale and Leaseback Transactions entered into by such Person;
(c) all obligations of such Person issued or assumed as the deferred purchase
price of Property, all conditional sale obligations of such Person and all
obligations of such Person under any title retention agreement (but excluding
Trade Accounts Payable arising in the ordinary course of business); (d) all
obligations of such Person for the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit transaction (other than
obligations with respect to letters of credit securing obligations (other than
obligations described in
18
(a) through (c) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the tenth Business
Day following receipt by such Person of a demand for reimbursement following
payment on the letter of credit); (e) the amount of all obligations of such
Person with respect to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Subsidiary of such Person, any
Preferred Stock (but excluding, in each case, any accrued dividends); (f) all
obligations of the type referred to in clauses (a) through (e) of other Persons
and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee; (g) all obligations
of the type referred to in clauses (a) through (f) of other Persons secured by
any Lien on any Property or asset of such Person (whether or not such obligation
is assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such Property or assets or the amount of the obligation
so secured; (h) to the extent not otherwise included in this definition, Hedging
Obligations of such Person; and (i) to the extent not otherwise included in this
definition, any financing of accounts receivable or inventory of such Person
(whether or not treated as a sale or debt for accounting purposes); provided
that such accounts receivable or inventory shall be deemed to be on the
consolidated balance sheet of the Corporation for purposes of clause (b)(ii) of
the definition of "PERMITTED DEBT". The amount of Debt of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees and
successors.
"DISQUALIFIED STOCK" means, with respect to any Person, Redeemable Stock of
such Person as to which the maturity, mandatory redemption, redemption at the
option of the holder thereof, conversion or exchange occurs, or may occur, on or
prior to the first anniversary of the Stated Maturity of the 2009 Series Bonds;
provided, however, that Redeemable Stock of such Person that would not otherwise
be characterized as Disqualified Stock under this definition shall not
constitute Disqualified Stock if such Redeemable Stock is convertible or
exchangeable into Debt solely at the option of the issuer thereof.
19
"EBITDA" means, for any period, an amount equal to, for the Corporation and
its consolidated Restricted Subsidiaries, (a) the sum of Consolidated Net Income
for such period, plus the following to the extent reducing Consolidated Net
Income for such period: (i) the provision for taxes for such period based on
income or profits or utilized in computing net loss, (ii) Consolidated Interest
Expense, (iii) depreciation and amortization of fixed and intangible assets and
(iv) any other non-cash items (other than any such non-cash item to the extent
that it represents an accrual of or reserve for cash expenditures in any future
period, except amortization of any SFAS 106 transaction obligation of the
Corporation), minus (b) all non-cash items increasing Consolidated Net Income
for such period (other than any such non-cash item to the extent that it will
result in the receipt of cash payments in any future period). Notwithstanding
the foregoing, the provision for taxes based on the income or profits of, and
the depreciation and amortization of, a Restricted Subsidiary shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income and only if a corresponding amount would be
permitted at the date of determination to be dividended to the Corporation by
such Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE OFFER" means the offer by the Corporation to the Holders of the
Initial 2009 Series Bonds and the Series A 2009 Bonds to exchange all of the
Initial 2009 Series Bonds and the Series A 2009 Bonds for Exchange 2009 Series
Bonds, as provided for in the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"EXCHANGE 2009 SERIES BONDS" refers to the First Mortgage Bonds, 9 7/8%
Series D due 2009 containing terms substantially identical to the Initial 2009
Series Bonds and the Series A 2009 Bonds (except that (i) such Exchange 2009
Series Bonds shall not contain terms with respect to transfer restrictions and
shall be registered under the Securities Act, and (ii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated) that are issued and exchanged for the Initial 2009 Series Bonds and
the Series A 2009 Bonds in accordance with the Exchange Offer, as provided for
in the Registration Rights Agreement and this Supplemental Indenture.
20
"FAIR MARKET VALUE" means, with respect to any Property, the price (or, in
the case of a lease, the rent) which could be negotiated in an arm's-length free
market transaction, for cash, between a willing seller (or lessor) and a willing
buyer (or lessee), neither of whom is under undue pressure or compulsion to
complete the transaction. Fair Market Value will be determined, except as
otherwise provided, (a) if such Property has a Fair Market Value equal to or
less than $10,000,000, by any Officer of the Corporation or (b) if such Property
has a Fair Market Value in excess of $10,000,000, by a majority of the Board of
Directors and evidenced by a Board Resolution, dated within 30 days of the
relevant transaction, delivered to the Trustee.
"GAAP" means United States generally accepted accounting principles as in
effect on March 8, 1999, including those set forth (a) in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants, (b) in the statements and pronouncements of the
Financial Accounting Standards Board, (c) in such other statements by such other
entity as approved by a significant segment of the accounting profession and (d)
the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports
required to be filed pursuant to Section 13 of the Exchange Act, including
opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC.
"GUARANTEE" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt of such other Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "GUARANTEE" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "GUARANTEE"
used as a verb has a corresponding meaning. The term "GUARANTOR" shall mean any
Person Guaranteeing any obligation.
"HEDGING OBLIGATION" of any Person means any obligation of such Person
pursuant to any Interest Rate Agreement, Currency Exchange Protection Agreement,
Commodity Price Protection Agreement or any other similar agreement or
arrangement.
21
"HOLDER" or "BONDHOLDER" means the Person in whose name a Bond is
registered on the Bond Register.
"INCUR" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by merger, conversion, exchange or otherwise), extend,
assume, Guarantee or become liable in respect of such Debt or other obligation
or the recording, as required pursuant to GAAP or otherwise, of any such Debt or
obligation on the balance sheet of such Person (and "Incurrence" and "Incurred"
shall have meanings correlative to the foregoing); provided, however, that a
change in GAAP that results in an obligation of such Person that exists at such
time, and is not theretofore classified as Debt, becoming Debt shall not be
deemed an Incurrence of such Debt; provided further, however, that solely for
purposes of determining compliance with Section 4.05, amortization of debt
discount shall not be deemed to be the Incurrence of Debt, provided that in the
case of Debt sold at a discount, the amount of such Debt Incurred shall at all
times be the aggregate principal amount at Stated Maturity.
"INDENTURE" means the Original Indenture as amended or supplemented from
time to time, as defined in the recitals hereto.
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking firm of
national standing or any third party appraiser of national standing, provided
that such firm or appraiser is not an Affiliate of the Corporation.
"INITIAL 2009 SERIES BONDS" has the meaning specified in the recitals to
this Supplemental Indenture.
"INTEREST PAYMENT DATE" means March 1 and September 1 of each year,
commencing September 1, 1999.
"INTEREST RATE AGREEMENT" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect against fluctuations in interest rates.
"INVENTORY FACILITIES means (i) the $100 million Inventory Credit
Agreement, dated as of July 18, 1996, among the Corporation, the Long-Term
Credit Bank of Japan Ltd, New York Branch, as Administrative Agent and the Long-
Term Credit Bank of Japan Ltd., New York Branch, as Structuring Agent and
Collateral Agent and (2) the $50 million Credit Agreement, dated as of July 18,
1996, between the Corporation and The Fuji Bank and Trust Company.
"INVESTMENT" by any Person means any direct or indirect loan (other than
advances to customers in the ordinary course of business that are recorded as
22
accounts receivable on the balance sheet of such Person), advance or other
extension of credit or capital contribution (by means of transfers of cash or
other Property to others or payments for Property or services for the account or
use of others, or otherwise) to, or Incurrence of a Guarantee of any obligation
of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Debt issued by, any other Person. In
determining the amount of any Investment made by transfer of any Property other
than cash, such Property shall be valued at its Fair Market Value at the time of
such Investment.
"INVESTMENT GRADE RATING" means a rating equal to or higher than Baa3 (or
the equivalent) by Xxxxx'x and BBB- (or the equivalent) by S&P.
"INVESTMENT GRADE STATUS" shall be deemed to have been reached on the date
that the 2009 Series Bonds have an Investment Grade Rating from both Rating
Agencies.
"ISSUE DATE" means the date on which the 2009 Series Bonds are initially
issued.
"LIEN" means, with respect to any Property of any Person, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such Property (including any Capital Lease
Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction, but excluding any operating lease (except Sale and
Leaseback Transactions) entered into in the ordinary course of such Person's
business).
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor to the
rating agency business thereof.
"MORTGAGED PROPERTY" means any Property of the Corporation or any of its
Subsidiaries that is subjected to, or is intended to be subjected to, the lien
of the Indenture.
"NET AVAILABLE CASH" from any Asset Sale means cash payments received
therefrom (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Debt or other obligations relating to the
Property that is the subject of such Asset Sale or received in any other non-
cash
23
form), in each case net of (a) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a liability under
GAAP, as a consequence of such Asset Sale, (b) all payments made on any Debt
which is secured by any Property subject to such Asset Sale, in accordance with
the terms of any Lien upon or other security agreement of any kind with respect
to such Property, or which must by its terms, or in order to obtain a necessary
consent to such Asset Sale, or by applicable law, be repaid out of the proceeds
from such Asset Sale, (c) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or joint ventures as a result
of such Asset Sale and (d) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities associated
with the Property disposed in such Asset Sale and retained by the Corporation or
any Restricted Subsidiary after such Asset Sale.
"NET CASH PROCEEDS" means, with respect to any issuance or sale of Capital
Stock, the cash proceeds of such issuance or sale, net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"NKK" means NKK U.S.A. Corporation and its Affiliates.
"NON-MORTGAGED PROPERTY" means Property of the Corporation or any of its
Subsidiaries other than Mortgaged Property.
"NSFC" means National Steel Funding Corp., a Delaware corporation, and its
successors.
"OFFICER" means the President, the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer or the Comptroller or the Chief
Financial Officer or any Vice President of the Corporation.
"OFFICERS' CERTIFICATE" means a certificate signed by the President or a
Vice President and the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer or the Comptroller or an Assistant Comptroller of the
Corporation.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Corporation.
24
"PERMITTED DEBT" means:
(a) Debt of the Corporation evidenced by the 2009 Series Bonds and the
Series A 2009 Bonds;
(b) Debt of the Corporation or any Restricted Subsidiary under the
Credit Facilities; provided that the aggregate principal amount of all such
Debt under the Credit Facilities at any one time outstanding shall not
exceed the greater of (i) $350 million less the sum of the aggregate amount
of all required payments of principal applied to reduce the aggregate
amount available to be borrowed under the Credit Facilities including
pursuant to Section 4.10, and (ii) the sum of the amounts equal to (x) 60%
of the book value of the inventory of the Corporation and the Restricted
Subsidiaries and (y) 85% of the book value of the accounts receivable of
the Corporation and the Restricted Subsidiaries, in each case as of the
most recently ended quarter of the Corporation prior to such Incurrence for
which financial statements of the Corporation have been provided to the
Holders of 2009 Series Bonds;
(c) Capital Expenditure Debt of the Corporation or any Restricted
Subsidiary; provided that (i) the aggregate principal amount of such Debt
does not exceed the Fair Market Value (on the date of the Incurrence
thereof) of the Property acquired, constructed or leased and (ii) the
aggregate principal amount of all Debt Incurred and then outstanding
pursuant to this clause (c), together with all Permitted Refinancing Debt
Incurred and then outstanding in respect of Debt previously Incurred
pursuant to this clause (c), does not exceed $175 million;
(d) Debt of the Corporation owing to and held by any Wholly Owned
Subsidiary and Debt (including Preferred Stock) of a Restricted Subsidiary
owing to and held by the Corporation or any Wholly Owned Subsidiary;
provided, however, that any subsequent issue or transfer of Capital Stock
or other event that results in any such Wholly Owned Subsidiary ceasing to
be a Wholly Owned Subsidiary or any subsequent transfer of any such Debt
(except to the Corporation or a Wholly Owned Subsidiary) shall be deemed,
in each case, to constitute the Incurrence of such Debt by the Corporation
or such Restricted Subsidiary;
(e) Debt of a Restricted Subsidiary Incurred and outstanding on or
prior to the date on which such Restricted Subsidiary was acquired by the
Corporation or otherwise became a Restricted Subsidiary (other than Debt
Incurred as consideration in, or to provide all or any portion of the
25
funds or credit support utilized to consummate, the transaction or series of
transactions pursuant to which such Restricted Subsidiary became a Subsidiary of
the Corporation or was otherwise acquired by the Corporation); provided that at
the time such Restricted Subsidiary was acquired by the Corporation or otherwise
became a Restricted Subsidiary and after giving pro forma effect to the
Incurrence of such Debt, the Corporation would have been able to Incur $1.00 of
additional Debt pursuant to Section 4.05(a);
(f) Debt under Interest Rate Agreements entered into by the Corporation or
a Restricted Subsidiary for the purpose of limiting interest rate risk in the
ordinary course of the financial management of the Corporation or such
Restricted Subsidiary and not for speculative purposes; provided that the
obligations under such agreements are directly related to payment obligations on
Debt otherwise permitted by Section 4.05;
(g) Debt under Currency Exchange Protection Agreements entered into by the
Corporation or a Restricted Subsidiary for the purpose of limiting currency
exchange rate risk in the ordinary course of the financial management of the
Corporation or such Restricted Subsidiary and not for speculative purposes;
(h) Debt under Commodity Price Protection Agreements entered into by the
Corporation or a Restricted Subsidiary in the ordinary course of the financial
management (including cost control) of the Corporation or such Restricted
Subsidiary and not for speculative purposes;
(i) Debt in connection with one or more standby letters of credit or
performance bonds issued by the Corporation or a Restricted Subsidiary in the
ordinary course of business or pursuant to self-insurance obligations and not in
connection with the borrowing of money or the obtaining of advances or credit;
(j) Debt outstanding on March 8, 1999 not otherwise described in clauses
(a) through (i) above;
(k) Debt of the Corporation or any Restricted Subsidiary (other than Debt
permitted by Section 4.05(a) or the other clauses of this definition) in an
aggregate principal amount outstanding at any one time not to exceed
$75,000,000; and
26
(l) Permitted Refinancing Debt Incurred in respect of Debt Incurred
pursuant to Section 4.05(a) and clauses (a), (c), (e) and (j) above,
subject, in the case of clause (c) above, to the limitations set forth in
the respective proviso thereto.
"PERMITTED INVESTMENTS" means any Investment by the Corporation or any
Restricted Subsidiary in any of the following:
(a) Cash Equivalents;
(b) the Corporation or any Restricted Subsidiary;
(c) another Person, if as a result of such Investment (i) such other
Person becomes a Restricted Subsidiary 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 Corporation or a Restricted Subsidiary;
(d) loans or advances made to employees or directors of the
Corporation or any Restricted Subsidiary in the ordinary course of business
in an aggregate amount not to exceed US$1 million at any one time
outstanding;
(e) Hedging Obligations which constitute Permitted Debt;
(f) Investments consisting of non-cash consideration received in the
form of securities, Notes or similar obligations in connection with an
Asset Sale permitted by Section 4.08 and Section 4.10, as applicable,
provided that the aggregate amount of such non-cash consideration received
in connection with any such Asset Sale shall not exceed the amount
permitted under Section 4.08 and Section 4.10 or the terms of the Original
Indenture, as applicable;
(g) the purchase by the Company or any Restricted Subsidiary in one or
more transactions of all or any portion of NKK's ownership interest in DNN
Galvanizing Limited Partnership; and
(h) Investments in joint ventures engaged in the steel business or
other businesses reasonably related thereto in an aggregate amount not to
exceed $20 million.
"PERMITTED HOLDERS" means NKK U.S.A. Corporation and its Affiliates.
27
"PERMITTED REFINANCING DEBT" means any Debt that Refinances any other Debt,
including any successive Refinancings, so long as (a) such Debt is in an
aggregate principal amount (or if Incurred with original issue discount, an
aggregate issue price) not in excess of the sum of (i) the aggregate principal
amount (or if Incurred with original issue discount, the aggregate accreted
value) then outstanding of the Debt being Refinanced and (ii) an amount
necessary to pay any fees and expenses, including premiums and defeasance costs,
related to such Refinancing, (b) the Average Life of such Debt is equal to or
greater than the Average Life of the Debt being Refinanced, (c) the Stated
Maturity of such Debt is no earlier than the Stated Maturity of the Debt being
Refinanced and (d) the new Debt shall not be senior in right of payment to the
Debt that is being Refinanced; provided, however, that Permitted Refinancing
Debt shall not include (a) Debt of a Subsidiary that Refinances Debt of the
Corporation or (b) Debt of the Corporation or a Restricted Subsidiary that
Refinances Debt of an Unrestricted Subsidiary.
"PERSON" means any individual, corporation, company (including any limited
liability or joint-stock company), partnership, joint venture, association,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"PLACE OF PAYMENT" means the place or places where the principal of (and
premium, if any, on) and interest on the 2009 Series Bonds are payable as
specified as contemplated by Section 3.01 hereof and Section 4.04 of the
Original Indenture.
"PREDECESSOR 2009 SERIES BOND" of any particular 2009 Series Bond means
every previous 2009 Series Bond evidencing all or a portion of the same debt as
that evidenced by such particular 2009 Series Bond; and, for the purposes of
this definition, any 2009 Series Bond authenticated and delivered in compliance
with Section 3.03 of the Original Indenture in exchange for or in lieu of a
mutilated, destroyed , lost or stolen 2009 Series Bond shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen 2009 Series
Bond.
"PREFERRED STOCK" means any Capital Stock of a Person, however designated,
which entitles the Holder thereof to a preference with respect to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over shares of any other class of
Capital Stock issued by such Person.
"PRINCIPAL" of any Debt (including the 2009 Series Bonds) means the
principal amount of such Debt plus the premium, if any, on such Debt.
28
"PROPERTY" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, including Capital Stock in, and other securities of, any other
Person. For purposes of any calculation required pursuant to the Indenture, the
value of any Property shall be its Fair Market Value.
"PUBLIC EQUITY OFFERING" means an underwritten public offering of common
stock of the Corporation pursuant to an effective registration statement under
the Securities Act.
"RATING AGENCIES" mean Moody's and S&P.
"RECEIVABLES PURCHASE AGREEMENT" means the Receivables Purchase Agreement
dated as of May 18, 1994, as amended through March 8, 1999, among NSFC, Xxxxxx
Guaranty Trust Company of New York (as successor to X.X. Xxxxxx Delaware), as
structuring and collateral agent and facility agent, and various financial
institutions parties thereto as lenders and issuing banks.
"REDEEMABLE DIVIDEND" means, for any dividend with respect to Redeemable
Stock, the quotient of the dividend divided by the difference between one and
the maximum statutory federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the issuer of such Redeemable Stock.
"REDEEMABLE STOCK" means, with respect to any Person, any Capital Stock
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (a) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (b) is or may
become redeemable or repurchasable at the option of the holder thereof, in whole
or in part, or (c) is convertible or exchangeable for Debt or Disqualified
Stock.
"REFINANCE" means, in respect of any Debt, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue other Debt, in
exchange or replacement for, such Debt. "Refinanced" and "Refinancing" shall
have correlative meanings.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of March 31, 1999, between the Corporation and the Initial Purchaser.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Corporation which covers any of the 2009 Series Bonds pursuant to the provisions
of the Registration Rights Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective amendments.
29
"RESTRICTED PAYMENT" means (a) any dividend or distribution (whether made
in cash, securities or other Property) declared or paid on or with respect to
any shares of Capital Stock of the Corporation or any Restricted Subsidiary
(including any payment in connection with any merger or consolidation with or
into the Corporation or any Restricted Subsidiary), except for any dividend or
distribution which is made solely to the Corporation or a Restricted Subsidiary
(and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to the
other shareholders of such Restricted Subsidiary on a pro rata basis) or any
dividend or distribution payable solely in shares of Capital Stock (other than
Redeemable Stock) of the Corporation; (b) any payment made by the Corporation or
any Restricted Subsidiary to purchase, redeem, repurchase, acquire or retire for
value any Capital Stock of the Corporation or any Restricted Subsidiary (other
than (I) Capital Stock of a Wholly Owned Restricted Subsidiary or (II) from all
holders of Capital Stock of a non-wholly owned Restricted Subsidiary on a pro
rata basis); (c) any payment made by the Corporation or any Restricted
Subsidiary to purchase, redeem, repurchase, defease or otherwise acquire or
retire for value, prior to any scheduled maturity, scheduled sinking fund or
mandatory redemption payment, any Subordinated Obligation (other than the
purchase, repurchase, or other acquisition of any Subordinated Obligation
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
acquisition); or (d) any Investment (other than any Permitted Investment) in any
Person (including, without limitation, any Unrestricted Subsidiary).
"RESTRICTED SUBSIDIARY" means (a) any Subsidiary of the Corporation in
existence on or after March 8, 1999 unless such Subsidiary shall have been
designated an Unrestricted Subsidiary as permitted or required pursuant to
Section 4.14 and (b) an Unrestricted Subsidiary which is redesignated as a
Restricted Subsidiary as permitted pursuant to Section 4.14.
"S&P" means Standard & Poor's Ratings Service or any successor to the
rating agency business thereof.
"SALE AND LEASEBACK TRANSACTION" means any arrangement relating to Property
now owned or hereafter acquired whereby the Corporation or a Restricted
Subsidiary transfers such Property to another Person and the Corporation or a
Restricted Subsidiary leases it from such Person, other than any such
arrangement with respect to Property acquired or placed into service by the
Corporation or any Restricted Subsidiary after March 8, 1999 to the extent
entered into within 365 days after the date of such acquisition or placement
into service and not constituting a Capital Lease Obligation.
30
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SECURED DEBT" means any Debt of the Corporation or any Restricted
Subsidiary secured by a Lien.
"SENIOR DEBT" of the Corporation means (a) all obligations consisting of
the principal, and accrued and unpaid interest in respect of (i) Debt of the
Corporation for borrowed money and (ii) Debt of the Corporation evidenced by
notes, debentures, bonds or other similar instruments permitted under the
Indenture for the payment of which the Corporation is responsible or liable; (b)
all Capital Expenditure Debt of the Corporation; (c) all obligations of the
Corporation (i) for the reimbursement of any obligor on any letter of credit,
bankers' acceptance or similar credit transaction or (ii) under Hedging
Obligations; and (d) all obligations of other Persons of the type referred to in
clauses (a) and (b) for the payment of which the Corporation is responsible or
liable as Guarantor; provided, however, that Senior Debt of the Corporation
shall not include (A) Debt of the Corporation that is by its terms subordinate
in right of payment to the 2009 Series Bonds; (B) any Debt Incurred in violation
of the provisions of the Indenture; (C) accounts payable or any other
obligations of the Corporation to trade creditors created or assumed by the
Corporation in the ordinary course of business in connection with the obtaining
of materials or services (including Guarantees thereof or instruments evidencing
such liabilities); (D) any liability for Federal, state, local or other taxes
owed or owing by the Corporation; (E) any obligation of the Corporation to any
Subsidiary; or (F) any obligations with respect to any Capital Stock.
"SERIES A 2009 BONDS" refers to the First Mortgage Bonds, 9 7/8% Series A
due 2009 issued pursuant to the Original Indenture, as theretofore supplemented,
and the Tenth Supplemental Indenture.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Corporation pursuant to the provisions of the Registration Rights
Agreement.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that would be a
"Significant Subsidiary" of the Corporation within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the 2009
Series Bonds means a date fixed by the Trustee pursuant to Section 3.06.
31
"STATED MATURITY" means, with respect to any security, the date specified
in such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"SUBORDINATED OBLIGATION" means any Debt of the Corporation (whether
outstanding on March 8, 1999 or thereafter Incurred) which is subordinate or
junior in right of payment to the 2009 Series Bonds or the Guaranty pursuant to
a written agreement to that effect.
"SUBSIDIARY" means, in respect of any specified Person, any corporation,
company, partnership, joint venture, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.
"TENTH SUPPLEMENTAL INDENTURE" refers to the Tenth Supplemental Indenture
dated as of March 8, 1999 between the Corporation and the Trustees supplementing
the Original Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb)
as amended and in effect on the date of this Indenture except as required by
Section 8.08 hereof; provided that in the event the Trust Indenture Act of 1939
is amended after such date, "TRUST INDENTURE ACT" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939, as so amended.
"2009 SERIES BONDS" has the meaning stated in the first recital of this
Supplemental Indenture.
"UNITED STATES" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of the Corporation in
existence on March 8, 1999 that is not a Restricted Subsidiary; (b) any
Subsidiary of an Unrestricted Subsidiary; and (c) any Subsidiary of the
Corporation that is designated after March 8, 1999 as an Unrestricted Subsidiary
32
as permitted pursuant to Section 4.14 and not thereafter redesignated as a
Restricted Subsidiary as permitted pursuant thereto.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"VOTING STOCK" of a corporation means all classes of Capital Stock of such
corporation then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"WHOLLY OWNED SUBSIDIARY" means, at any time, a corporation all the stock
of which (except directors' qualifying shares, where necessary) is at such time
owned, directly or indirectly, by the Corporation or by one or more Wholly Owned
Subsidiaries.
Section 1.02. Other Definitions.
Term Defined in Section
"Affiliate Transaction".............................. 4.12
"Bankruptcy Law"..................................... 6.01
"Bond Registrar"..................................... 3.05
"Change of Control Offer"............................ 4.09(a)
"Change of Control Purchase Price"................... 4.09(a)
"Change of Control Payment Date"..................... 4.09(b)
"Custodian".......................................... 6.01
"Eleventh Supplemental Indenture Event of Default"... 6.01
"Excess Proceeds".................................... 4.10(c)
"Offer Amount"....................................... 4.10(d)(ii)
"Offer Period"....................................... 4.10(d)(ii)
"Offshore Bond Exchange Date"........................ 2.03
"Offshore Physical Bond"............................. 2.01
"Prepayment Offer"................................... 4.10(c)
"Prepayment Offer Notice"............................ 4.10(d)(1)
"Private Placement Legend"........................... 2.03
"Purchase Date"...................................... 4.10(d)(1)
"Surviving Person"................................... 5.01(a)
Unless otherwise defined herein, terms defined in Article One of the
Original Indenture shall have the same meanings when used herein. All the terms
33
and provisions of this Supplemental Indenture shall be and be deemed to be a
part of the terms and provisions of the Indenture for any and all purposes.
Section 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the 2009 Series Bonds.
"indenture security holder" means a Bondholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Corporation, and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Debt shall not be deemed to be subordinate or junior to
secured Debt merely by virtue of its nature as unsecured Debt;
34
(7) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the greater
of (i) the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock.
ARTICLE 2
2009 Bonds Forms
Section 2.01. Forms Generally.
The Initial 2009 Series Bonds shall be known and designated as the "FIRST
MORTGAGE BONDS, 9 7/8% SERIES C DUE 2009," and the Exchange 2009 Series Bonds
shall be known and designated as the "FIRST MORTGAGE BONDS, 9 7/8% SERIES D DUE
2009," in each case, of the Corporation. The 2009 Series Bonds and the Trustee's
certificate of authentication shall be in substantially the forms set forth in
the recitals to the supplement of this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such 2009 Series
Bonds, as evidenced by their execution of the 2009 Series Bonds. Any portion of
the text of any 2009 Series Bond may be set forth on the reverse thereof, with
an appropriate reference thereto on the face of the 2009 Series Bond. Each Bond
shall be dated the date of its authentication.
The definitive 2009 Series Bonds 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 Corporation executing such 2009 Series Bonds,
as evidenced by their execution of such 2009 Series Bonds.
Initial 2009 Series Bonds offered and sold in reliance on Rule 144A
promulgated under the Securities Act of 1933, as amended ("RULE 144A"), may be
issued in the form of one or more permanent global Notes substantially in the
form set forth in the recitals to this Supplemental Indenture (the "U.S. GLOBAL
BOND") deposited with The Chase Manhattan Bank, as custodian for the Depositary
or its nominee, duly executed by the Corporation and authenticated by
35
the Trustee as hereinafter provided. The aggregate principal amount of the U.S.
Global Bond may from time to time be increased or decreased by adjustments made
on the records of The Chase Manhattan Bank, as custodian for the Depositary or
its nominee, as hereinafter provided.
Initial 2009 Series Bonds offered and sold in offshore transactions in
reliance on Regulation S promulgated under the Securities Act of 1933, as
amended ("REGULATION S"), shall be issued in the form of a single permanent
global bond in substantially the form set forth in the recitals to this
Supplemental Indenture (the "OFFSHORE GLOBAL BOND") deposited with The Chase
Manhattan Bank, as custodian for the Depositary or its nominee, duly executed by
the Corporation and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount at maturity of the Offshore Global Bond may from time
to time be increased or decreased by adjustments made in the records of the The
Chase Manhattan Bank, as custodian for the Depositary or its nominee, as herein
provided.
Bonds issued pursuant to Section 3.05 in exchange for or upon transfer of
beneficial interests in the U.S. Global Bond ("U.S. PHYSICAL BONDS") or the
Offshore Global Bond (the "OFFSHORE PHYSICAL BONDS") shall be in the form of
permanent certificated Bonds substantially in the form set forth in the recitals
to this Supplemental Indenture.
The Offshore Physical Bonds and U.S. Physical Bonds are sometimes
collectively herein referred to as the "PHYSICAL BONDS". The U.S. Global Bond
and the Offshore Global Bond are sometimes collectively referred to as the
"GLOBAL BONDS".
Section 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
form set forth in the recitals to this Indenture.
Section 2.03. Restrictive Legends.
Unless and until (i) an Initial 2009 Series Bond is sold pursuant to an
effective Shelf Registration Statement or (ii) an Initial 2009 Series Bond is
exchanged for an Exchange 2009 Series Bond in an Exchange Offer pursuant to an
effective Exchange Offer Registration Statement, in each case pursuant to the
Registration Rights Agreement, (A) each U.S. Global Bond and U.S. Physical Bond
shall bear the following legend set forth below (the "PRIVATE PLACEMENT LEGEND")
on the face thereof and (B) the Offshore Physical Bonds and Offshore Global Bond
shall bear the Private Placement Legend on the face thereof until at
36
least 41 days after the date hereof (the "OFFSHORE BOND EXCHANGE DATE") and
receipt by the Corporation and the Trustee of a certificate substantially in the
form provided in Section 2.04:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND
ANNIVERSARY OF THE ISSUANCE HEREOF (OR OF A PREDECESSOR SECURITY HERETO) OR
(Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING
THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER
THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THE SECURITY), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE
BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY), (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES
ACT, OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED
INVESTOR HOLDING THIS SECURITY AGREES IT WILL FURNISH TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES AN OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH
THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
37
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A OR (2) A NON-UNITED STATES PERSON OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (o)(2) OR RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
Each Global Bond, whether or not an Initial 2009 Series Bond, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY IN WHOLE, BUT NOT IN PART, SHALL BE
LIMITED TO TRANSFERS TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 3.11 AND 3.12 OF THE ELEVENTH SUPPLEMENTAL INDENTURE.
38
Section 2.04. Form of Certificate to Be Delivered upon Termination of
Restricted Period.
[Date]
THE CHASE MANHATTAN BANK
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: NATIONAL STEEL CORPORATION (the "Corporation")
First Mortgage Bonds, 9 7/8% Series C due 2009 of the Corporation
-----------------------------------------------------------------
(the "2009 Series Bonds")
-------------------------
Ladies and Gentlemen:
This letter relates to $ _________ principal amount of 2009 Series Bonds
represented by a offshore global bond certificate (the "Offshore Global Bond").
Pursuant to Section 2.04 of the Eleventh Supplemental Indenture dated as of
March 31, 1999 relating to the 2009 Series Bonds (the "Indenture"), we hereby
certify that (1) we are the beneficial owner of such principal amount of 2009
Series Bonds represented by the Offshore Global Bond and (2) we are a non-U.S.
Person to whom the 2009 Series Bonds could be transferred in accordance with
Rule 904 of Regulation S promulgated under the Securities Act of 1933, as
amended ("Regulation S"). Accordingly, you are hereby requested to issue an
Offshore Physical Bond representing the undersigned's interest in the principal
amount of 2009 Series Bonds represented by the Offshore Global Bond, all in the
manner provided by the Indenture.
You and the Corporation 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
39
the matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Holder]
By:_______________________________
Authorized Signature
ARTICLE 3
The 2009 Series Bonds
Section 3.01. Maturity; Payment.
The Stated Maturity of the 2009 Series Bonds shall be March 1, 2009, and
they shall bear interest at the rate of 9 7/8% per annum from March 8, 1999, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, payable on September 1, 1999 and semi-annually thereafter on
March 1 and September 1 in each year, until the principal thereof is paid in
full and to the Person in whose name the 2009 Series Bond (or any predecessor
2009 Series Bond) is registered at the close of business on the February 15 or
August 15 next preceding such Interest Payment Date (each a "REGULAR RECORD
DATE").
The principal of (and premium, if any) and interest on the 2009 Series
Bonds shall be payable at the office or agency of the Corporation maintained for
such purpose in The City of New York, or at such other office or agency of the
Corporation as may be maintained for such purpose; provided, however, that, at
the option of the Corporation, interest may be paid (a) by check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
Bond Register or (b) by wire transfer to an account maintained by the payee
located in the United States provided that appropriate written wire instructions
have been provided at least two Business Days prior to the relevant record date.
Holders shall have the right to require the Corporation to purchase their
2009 Series Bonds, in whole or in part, in the event of a Change of Control
pursuant to Section 4.09.
The 2009 Series Bonds shall be redeemable as provided in Article 7 and in
the 2009 Series Bonds.
40
Section 3.02. Denominations.
The 2009 Series Bonds shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 3.03. Execution. Authentication, Delivery and Dating.
The 2009 Series Bonds shall be executed on behalf of the Corporation in
accordance with Section 2.12 of the Original Indenture. Notwithstanding any
provision of Section 2.12 of the Original Indenture to the contrary, the
signature of any of these officers on the 2009 Series Bonds may be the manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the 2009 Series Bonds.
2009 Series Bonds bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such 2009 Series
Bonds or did not hold such offices at the date of such 2009 Series Bonds.
On Corporation Order, the Trustee shall, pursuant to Section 3.05 of the
Original Indenture, authenticate for original issue Initial 2009 Series Bonds in
an aggregate principal amount not to exceed $75,000,000. The Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Corporation that it may reasonably request in connection with such
authentication of Initial 2009 Series Bonds in accordance with Section 3.05 of
the Original Indenture. Such order shall specify the amount of Initial 2009
Series Bonds to be authenticated and the date on which the original issue of
Initial 2009 Series Bonds is to be authenticated.
On Corporation Order, the Trustee shall authenticate for original issue
Exchange 2009 Series Bonds in an initial aggregate principal amount not to
exceed $300,000,000; provided that such Exchange 2009 Series Bonds shall be
issuable only upon the valid surrender for cancellation of Initial 2009 Series
Bonds and Series A 2009 Bonds of a like aggregate principal amount in
accordance with an Exchange Offer pursuant to the Registration Rights Agreement;
provided further that subject to compliance with the Indenture, the Corporation
may issue additional bonds under the Indenture having the same terms in all
respects as previously authenticated Exchange 2009 Series Bonds ( or in all
respects except for the payment of interest on Exchange 2009 Series Bonds (i)
scheduled and paid prior to the date of issuance of such additional bonds or (ii
payable on the first interest payment date for the Exchange 2009 Series Bonds
following such date of issuance), and the Exchange 2009 Series Bonds issued
41
pursuant to the Exchange Offer and such additional bonds shall constitute a
series under the Indenture. The Trustee shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel of the Corporation that it may
reasonably request in connection with such authentication of Exchange 2009
Series Bonds. Such order shall specify the amount of Exchange 2009 Series Bonds
to be authenticated and the date on which the original issue of Exchange 2009
Series Bonds is to be authenticated.
Each 2009 Series Bond shall be dated the date of its authentication.
No 2009 Series Bond shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such 2009
Series Bond a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any 2009 Series Bond shall be conclusive
evidence, and the only evidence, that such 2009 Series Bond has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any 2009 Series Bond shall have
been authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such 2009 Series Bond to the
Trustee for cancellation as provided in Section 3.08 together with a written
statement by an Officer (which need not be accompanied by an Opinion of Counsel)
stating that such 2009 Series Bond has never been issued and sold by the
Corporation, for all purposes of this Indenture such 2009 Series Bond shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
In case the Corporation, pursuant to Article 5, 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 Corporation 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 5, any of the 2009 Series Bonds
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 2009 Series Bonds 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 2009 Series Bonds
surrendered for such exchange and of like principal amount; and the Trustee,
upon Corporation Request of the successor Person and an Officers' Certificate
and an opinion of counsel as to such exchange conforming with this paragraph,
shall authenticate and deliver 2009 Series Bonds
42
as specified in such request for the purpose of such exchange. If 2009 Series
Bonds shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 3.03 in exchange or substitution for
or upon registration of transfer of any 2009 Series Bonds, such successor
Person, at the option of the Holders but without expense to them, shall provide
for the exchange of all 2009 Series Bonds at the time Outstanding for 2009
Series Bonds authenticated and delivered in such new name.
Section 3.04. Temporary 2009 Series Bonds.
Pending the preparation of definitive 2009 Series Bonds, the Corporation
may execute, and upon Corporation Order the Trustee shall authenticate in
accordance with Section 3.05 of the Original Indenture and deliver, temporary
2009 Series Bonds which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive 2009 Series Bonds in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
conclusively the officers executing such 2009 Series Bonds may determine, as
conclusively evidenced by their execution of such 2009 Series Bonds.
If temporary 2009 Series Bonds are issued, the Corporation will cause
definitive 2009 Series Bonds to be prepared without unreasonable delay. After
the preparation of definitive 2009 Series Bonds, the temporary 2009 Series Bonds
shall be exchangeable for definitive 2009 Series Bonds, upon surrender of the
temporary 2009 Series Bonds at the office or agency of the Corporation in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary 2009 Series Bonds, the Corporation shall execute
and, upon Corporation Order, the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive 2009 Series Bonds of
authorized denominations. Until so exchanged the temporary 2009 Series Bonds
shall in all respects be entitled to the same benefits under this Indenture as
definitive 2009 Series Bonds.
Section 3.05. Registration, Registration of Transfer and Exchange.
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register for the 2009 Series Bonds (the register maintained in the
Corporate Trust Office of the Trustee and in any other office or agency of the
Corporation in a Place of Payment being herein sometimes collectively referred
to as the "BOND REGISTER") in which, subject to such reasonable regulations as
it may prescribe, the Corporation shall provide for the registration of 2009
Series Bonds and of transfers of 2009 Series Bonds. The Bond Register shall be
in written form or any other form capable of being converted into written form
43
within a reasonable time. At all reasonable times, the Bond Register shall be
open to inspection by the Trustee. The Trustee is hereby initially appointed as
bond registrar (the "BOND REGISTRAR") for the purpose of registering 2009 Series
Bonds and transfers of 2009 Series Bonds as herein provided.
Upon surrender for registration of transfer of any 2009 Series Bond at the
office or agency in a Place of Payment, the Corporation shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee, one or more new 2009 Series Bonds, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, 2009 Series Bonds may be exchanged for other
2009 Series Bonds, of any authorized denomination and of a like aggregate
principal amount, upon surrender of the 2009 Series Bonds to be exchanged at
such office or agency. Whenever any 2009 Series Bonds are so surrendered for
exchange, the Corporation shall execute, and the Trustee shall authenticate and
deliver, the 2009 Series Bonds which the Holder making the exchange is entitled
to receive; provided that no exchange of Initial 2009 Series Bonds or Series A
2009 Bonds for Exchange 2009 Series Bonds shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the SEC, the
Trustee shall have received an Officers' Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the SEC and
the Initial 2009 Series Bonds and the Series A 2009 Bonds to be exchanged for
the Exchange 2009 Series Bonds shall be canceled by the Trustee.
All 2009 Series Bonds issued upon any registration of transfer or exchange
of 2009 Series Bonds shall be the valid obligations of the Corporation,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the 2009 Series Bonds or the Series A 2009 Bonds surrendered upon
such registration of transfer or exchange.
Every 2009 Series Bond and Series A 2009 Bond presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Corporation or the Bond Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer, in form satisfactory to the Corporation or the
Bond 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 of 2009 Series Bonds, but the Corporation may require payment 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 2009 Series Bonds,
44
other than exchanges pursuant to (i) the Exchange Offer or (ii) exchanges
pursuant to this Section 3.05 not involving any transfer.
The Corporation shall not be required (i) to issue, register the transfer
of or exchange 2009 Series Bonds during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of 2009
Series Bonds and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any 2009 Series Bond so selected for redemption in whole or in part,
except the unredeemed portion of any 2009 Series Bond being redeemed in part, or
(iii) to issue, register the transfer of or exchange any 2009 Series Bond which
has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such 2009 Series Bond not to be so repaid.
Section 3.06. Payment of Interest, Interest Rights Preserved. Interest on
any 2009 Series Bond 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
2009 Series Bond (or one or more Predecessor 2009 Series Bonds) is registered at
the close of business on the Regular Record Date for such interest at the Place
of Payment provided, however, that each installment of interest on any 2009
Series Bond may at the Corporation's option be paid by (i) mailing a check for
such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 3.07, to the address of such Person as it appears on
the Bond Register or (ii) wire transfer to an account maintained by the payee
located in the United States.
Any interest on any 2009 Series Bond 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 relevant Regular Record Date
by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the 2009 Series Bonds (such defaulted interest and, if
applicable, interest thereon herein collectively called "DEFAULTED INTEREST")
may be paid by the Corporation, at its election in each case, as provided in
clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted
Interest to the Persons in whose names the 2009 Series Bonds (or their
respective Predecessor 2009 Series Bonds) 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 Corporation
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each 2009 Series Bond and the date of the proposed
payment, and at the same time the Corporation shall deposit with
45
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 on or 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 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 Corporation of such
Special Record Date and, in the name and at the expense of the Corporation,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 3.15, 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 name the 2009 Series Bonds (or their
respective Predecessor 2009 Series Bonds) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Corporation may make payment of any Defaulted Interest on the
2009 Series Bonds in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such 2009 Series Bonds may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Corporation 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 and Section 3.05, each
2009 Series Bond delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other 2009 Series Bond or Series A 2009
Bond shall carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other 2009 Series Bond or Series A 2009 Bond.
Section 3.07. Persons Deemed Owners.
Prior to due presentment of a 2009 Series Bond for registration of
transfer, the Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the Person in whose name such 2009 Series Bond is registered
as the owner of such 2009 Series Bond for the purpose of receiving payment of
principal of (and premium, if any, on) and (subject to Sections 3.05 and 3.06)
interest on such 2009 Series Bond and for all other purposes whatsoever, whether
or not such 2009
46
Series Bond be overdue, and none of the Corporation, the Trustee or any agent of
the Corporation or the Trustee shall be affected by notice to the contrary.
Section 3.08. Cancellation.
All 2009 Series Bonds surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange, and all Series A
2009 Series Bonds surrendered for exchange pursuant to the Exchange Offer,
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All 2009 Series Bonds and Series A 2009 Series Bonds so delivered to
the Trustee shall be promptly canceled by it. The Corporation may at any time
deliver to the Trustee for cancellation any 2009 Series Bonds previously
authenticated and delivered hereunder which the Corporation 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 2009 Series Bonds previously
authenticated hereunder which the Corporation has not issued and sold, and all
2009 Series Bonds so delivered shall be promptly canceled by the Trustee. If the
Corporation shall so acquire any of the 2009 Series Bonds, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such 2009 Series Bonds unless and until the same are
surrendered to the Trustee for cancellation. No 2009 Series Bonds shall be
authenticated in lieu of or in exchange for any 2009 Series Bonds canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled 2009 Series Bonds held by the Trustee shall be disposed of by the
Trustee in accordance with its customary procedures unless by Corporation Order
the Corporation shall direct that canceled 2009 Series Bonds be returned to it.
Section 3.09. Computation of Interest.
Interest on the 2009 Series Bonds shall be computed on the basis of a 360-
day year of twelve 30-day months.
Section 3.10. Book Entry Provisions for Global Bonds.
(a) Each Global Bond initially shall (i) be registered in the name of the
Depositary for such Global Bonds or the nominee of such Depositary, (ii) be
delivered to The Chase Manhattan Bank as custodian for such Depositary and (iii)
bear legends as set forth in Section 2.03.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall have
no rights under this Indenture with respect to any Global Bond, and the
Depositary may be treated by the Corporation, the Trustee and any agent of the
Corporation or the Trustee as the absolute owner of such Global Bond for all
47
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Corporation, the Trustee or any agent of the Corporation or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a beneficial owner of any 2009 Series Bond. The registered holder of a
Global Bond 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 2009
Series Bonds.
(b) Interests of beneficial owners in a Global Bond may be transferred in
accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 3.11. Transfers of a Global Bond shall be limited to
transfers of such Global Bond in whole, but not in part, to the Depositary, its
successors or their respective nominees, except (i) as otherwise set forth in
Section 3.11 and (ii) U.S. Physical Bonds or Offshore Physical Bonds shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the U.S. Global Bond or the Offshore Global Bond, respectively, in the
following circumstances: (x) the Depositary notifies the Corporation that it is
unwilling or unable to continue as Depositary for the applicable Global Bond or
the Depositary ceases to be a "CLEARING AGENCY" registered under the Exchange
Act and a successor depositary is not appointed by the Corporation within 90
days or (y) an Event of Default has occurred and is continuing and Holders of
more than 25 % in aggregate principal amount of the Bonds at the time
Outstanding represented by the Global Bonds advise the Trustee through the
Depositary in writing that the continuation of a book-entry system through the
Depositary with respect to the Global Bonds is no longer required. In connection
with a transfer of an entire Global Bond to beneficial owners pursuant to clause
(ii) of this paragraph (b), the applicable Global Bond shall be deemed to be
surrendered to the Trustee for cancellation, and the Corporation shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
applicable Global Bond, an equal aggregate principal amount at maturity of U.S.
Physical Bonds (in the case of the U.S. Global Bond) or Offshore Physical Bonds
(in the case of the Offshore Global Bond), as the case may be, of authorized
denominations.
(c) Any beneficial interest in one of the Global Bonds that is transferred
to a person who takes delivery in the form of an interest in the other Global
Bond will, upon transfer, cease to be an interest in such Global Bond and become
an interest in the other Global Bond and, accordingly, will thereafter be
subject to all transfer restrictions, if any, and other procedures applicable to
beneficial interests in such other Global Bond for as long as it remains such an
interest.
48
(d) Any U.S. Physical Bond delivered in exchange for an interest in the
U.S. Global Bond pursuant to paragraph (b) of this Section shall, except as
otherwise provided in Section 3.11, bear the Private Placement Legend.
Section 3.11. Transfer Provisions.
Unless and until (i) an Initial 2009 Series Bond is sold pursuant to an
effective Registration Statement, or (ii) an Initial 2009 Series Bond is
exchanged for an Exchange 2009 Series Bond in the Exchange Offer pursuant to an
effective Registration Statement, in each case, pursuant to the Registration
Rights Agreement, the following provisions shall apply:
(a) General. The provisions of this Section 3.11 shall apply to all
transfers involving any Physical Bond and any beneficial interest in any Global
Bond.
(b) Certain Definitions. As used in this Section 3.11 only, "DELIVERY" of
a certificate by a transferee or transferor means the delivery to the Bond
Registrar by such transferee or transferor of the applicable certificate duly
completed; "HOLDING" includes both possession of a Physical Bond and ownership
of a beneficial interest in a Global Bond, as the context requires;
"TRANSFERRING" a Global Bond means transferring that portion of the principal
amount of the transferor's beneficial interest therein that the transferor has
notified the Bond Registrar that it has agreed to transfer; and "TRANSFERRING" a
Physical Bond means transferring that portion of the principal amount thereof
that the transferor has notified the Bond Registrar that it has agreed to
transfer.
As used in this Indenture, "REGULATION S CERTIFICATE" means a certificate
substantially in the form set forth in Section 3.12; "RULE 144A CERTIFICATE"
means a certificate substantially in the form set forth in Section 3.13; and
"NON-REGISTRATION OPINION AND SUPPORTING EVIDENCE" means a written opinion of
counsel reasonably acceptable to the Corporation and to the Trustee to the
effect that, and such other certification or information as the Corporation may
reasonably require to confirm that, the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(c) Deemed Delivery of a Rule 144A Certificate in Certain Circumstances. A
Rule 144A Certificate, if not actually delivered, will be deemed delivered if
(A) (i) the transferor advises the Corporation and the Trustee in writing that
the relevant offer and sale were made in accordance with the provisions of Rule
144A (or, in the case of a transfer of a Physical Bond, the transferor checks
the box provided on the Physical Bond to that effect) and (ii) the
49
transferee advises the Corporation and the Trustee in writing that (x) it and,
if applicable, each account for which it is acting in connection with the
relevant transfer, is a qualified institutional buyer within the meaning of Rule
144A, (y) it is aware that the transfer of 2009 Series Bonds to it is being made
in reliance on the exemption from the provisions of Section 5 of the Securities
Act provided by Rule 144A, and (z) prior to the proposed date of transfer it has
been given the opportunity to obtain from the Corporation the information
referred to in Rule 144A(d)(4), and has either declined such opportunity or has
received such information (or, in the case of a transfer of a Physical Bond, the
transferee signs the certification provided on the Physical Bond to that
effect); or (B) the transferor holds the U.S. Global Bond and is transferring to
a transferee that will take delivery in the form of the U.S. Global Bond.
(d) Procedures and Requirements.
(i) If the proposed transfer occurs prior to the Offshore Bond
Exchange Date, and the proposed transferor holds:
(A) a U.S. Physical Bond which is surrendered to the Bond
Registrar, and the proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Bonds, then the Bond Registrar shall (x)
register such transfer in the name of such transferee and record
the date thereof in its books and records, (y) cancel such
surrendered U.S. Physical Bond and (z) deliver a new U.S.
Physical Bond to such transferee duly registered in the name of
such transferee in principal amount equal to the principal amount
being transferred of such surrendered U.S. Physical Bond.
(2) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through
an Agent Member and requests that the proposed transferee receive
a beneficial interest in the U.S. Global Bond, then the Bond
Registrar shall (x) cancel such surrendered U.S. Physical Bond,
(y) record an increase in the principal amount of the U.S. Global
Bond equal to the principal amount being transferred of such
surrendered U.S. Physical Bond and (z) notify the Depositary in
accordance with the procedures of the Depositary of such
transfer.
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(3) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
Offshore Global Bond, then the Bond Registrar shall (x) cancel
such surrendered U.S. Physical Bond, (y) record an increase in
the principal amount of the Offshore Global Bond equal to the
principal amount being transferred of such surrendered U.S.
Physical Bond and (z) notify the Depositary in accordance with
the procedures of the Depositary of such transfer.
In the case described in Section 3.11(e)(i)(A)(1), the Bond Registrar shall
deliver to the transferor a new U.S. Physical Bond in principal amount
equal to the principal amount not being transferred of such surrendered
U.S. Physical Bond.
(B) a beneficial interest in the U.S. Global Bond, and the
proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Bonds, then the Bond Registrar shall (w)
register such transfer in the name of such transferee and record
the date thereof in its books and records, (x) record a decrease
in the principal amount of the U.S. Global Bond in an amount
equal to the beneficial interest therein being transferred, (y)
deliver a new U.S. Physical Bond to such transferee duly
registered in the name of such transferee in principal amount
equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary of
such transfer.
(2) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through
an Agent Member and requests that the proposed transferee receive
a beneficial interest in the U.S. Global Bond, then the transfer
shall be effected in accordance with the procedures of the
Depositary therefor.
(3) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent
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Member and requests that the proposed transferee receive a
beneficial interest in the Offshore Global Bond, then the Bond
Registrar shall (w) register such transfer in the name of such
transferee and record the date thereof in its books and records,
(x) record a decrease in the principal amount of the U.S. Global
Bond in an amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal amount of
the Offshore Global Bond equal to the amount of such decrease and
(z) notify the Depositary in accordance with the procedures of
the Depositary of such transfer.
(C) a beneficial interest in the Offshore Global Bond, and the
proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Bonds, then the Bond Registrar shall (w)
register such transfer in the name of such transferee and record
the date thereof in its books and records, (x) record a decrease
in the principal amount of the Offshore Global Bond in an amount
equal to the beneficial interest therein being transferred, (y)
deliver a new U.S. Physical Bond to such transferee duly
registered in the name of such transferee in principal amount
equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary of
such transfer.
(2) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through
an Agent Member and requests that the proposed transferee receive
a beneficial interest in the U.S. Global Bond, then the Bond
Registrar shall (x) record a decrease in the principal amount of
the Offshore Global Bond in an amount equal to the beneficial
interest therein being transferred, (y) record an increase in the
principal amount of the U.S. Global Bond equal to the amount of
such decrease and (z) notify the Depositary in accordance with
the procedures of the Depositary of such transfer.
(3) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent
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Member and requests that the proposed transferee receive a
beneficial interest in the Offshore Global Bond, then the
transfer shall be effected in accordance with the procedures of
the Depositary therefor; provided, however, that until the
Offshore Bond Exchange Date occurs, beneficial interests in the
Offshore Global Bond may be held only in or through accounts
maintained at the Depositary by Euroclear Clearance System
("EUROCLEAR") or Cedel Bank S.A. ("CEDEL") (or by Agent Members
acting for the account thereof), and no person shall be entitled
to effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an account.
(ii) If the proposed transfer occurs on or after the Offshore Bond
Exchange Date and the proposed transferor holds:
(A) a U.S. Physical Bond which is surrendered to the Bond
Registrar, and the proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Bonds, then the procedures set forth in Section
3.11(e)(i)(A)(1) shall apply.
(2) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through
an Agent Member and requests that the proposed transferee receive
a beneficial interest in the Offshore Global Bond, then the
procedures set forth in Section 3.11(e)(i)(A)(2) shall apply.
(3) delivers a Regulation S Certificate, then the Bond
Registrar shall cancel such surrendered U.S. Physical Bond and at
the direction of the transferee, either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Bond to such transferee
in principal amount equal to the principal amount being
transferred of such surrendered U.S. Physical Bond, or
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(y) if the proposed transferee is or is acting through
an Agent Member, record an increase in the principal amount
of the Offshore Global Bond equal to the principal amount
being transferred of such surrendered U.S. Physical Bond and
notify the Depositary in accordance with the procedures of
the Depositary of such transfer.
In any of the cases described in this Section 3.11(e)(ii)(A)(1) or (3)(x), the
Bond Registrar shall deliver to the transferor a new U.S. Physical Bond in
principal amount equal to the principal amount not being transferred of
such surrendered U.S. Physical Bond.
(B) a beneficial interest in the U.S. Global Bond, and the
proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Bonds, then the procedures set forth in Section
3.11(e)(i)(B)(1) shall apply.
(2) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through
an Agent Member and requests that the proposed transferee receive
a beneficial interest in the U.S. Global Bond, then the
procedures set forth in Section 3.11(e)(i)(B)(2) shall apply.
(3) delivers a Regulation S Certificate, then the Bond
Registrar shall (x) record a decrease in the principal amount of
the U.S. Global Bond in an amount equal to the beneficial
interest therein being transferred, (y) notify the Depositary in
accordance with the procedures of the Depositary of such transfer
and (z) at the direction of the transferee, either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Bond to such transferee
in principal amount equal to the amount of such decrease, or
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(y) if the proposed transferee is or is acting
through an Agent Member, record an increase in the principal
amount of the Offshore Global Bond equal to the amount of
such decrease.
(C) an Offshore Physical Bond which is surrendered to the Bond
Registrar, and the proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through
an Agent Member and requests delivery in the form of the U.S.
Global Bond, then the Bond Registrar shall (x) cancel such
surrendered Offshore Physical Bond, (y) record an increase in the
principal amount of the U.S. Global Bond equal to the principal
amount being transferred of such surrendered Offshore Physical
Bond and (z) notify the Depositary in accordance with the
procedures of the Depositary of such transfer.
(2) where the proposed transferee is or is acting through
an Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Bond, then the Bond
Registrar shall (x) cancel such surrendered Offshore Physical
Bond, (y) record an increase in the principal amount of the
Offshore Global Bond equal to the principal amount being
transferred of such surrendered Offshore Physical Bond and (z)
notify the Depositary in accordance with the procedures of the
Depositary of such transfer.
(3) does not make a request covered by Section
3.11(e)(ii)(C)(1) or Section 3.11(e)(ii)(C)(2), then the Bond
Registrar shall (x) register such transfer in the name of such
transferee and record the date thereof in its books and records,
(y) cancel such surrendered Offshore Physical Bond and (z)
deliver a new Offshore Physical Bond to such transferee duly
registered in the name of such transferee in principal amount
equal to the principal amount being transferred of such
surrendered Offshore Physical Bond.
In any of the cases described in this Section 3.11(e)(ii)(C), the Bond
Registrar shall deliver to the transferor a new U.S. Physical Bond in
55
principal amount equal to the principal amount not being transferred of
such surrendered U.S. Physical Bond.
(D) a beneficial interest in the Offshore Global Bond, and the
proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through
an Agent Member and requests delivery in the form of the U.S.
Global Bond, then the Bond Registrar shall (x) record a decrease
in the principal amount of the Offshore Global Bond in an amount
equal to the beneficial interest therein being transferred, (y)
record an increase in the principal amount of the U.S. Global
Bond equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary of
such transfer.
(2) where the proposed transferee is or is acting through
an Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Bond, then the
transfer shall be effected in accordance with the procedures of
the Depositary therefor.
(3) does not make a request covered by Section
3.11(e)(ii)(D)(1) or Section 3.11(e)(ii)(D)(2), then the Bond
Registrar shall (w) register such transfer in the name of such
transferee and record the date thereof in its books and records,
(x) record a decrease in the principal amount of the Offshore
Global Bond in an amount equal to the beneficial interest therein
being transferred, (y) deliver a new Offshore Physical Bond to
such transferee duly registered in the name of such transferee in
principal amount equal to the amount of such decrease and (z)
notify the Depositary in accordance with the procedures of the
Depositary of such transfer.
(e) Execution, Authentication and Delivery of Physical Bonds. In any case
in which the Bond Registrar is required to deliver a Physical Bond to a
transferee, the Corporation shall execute, and the Trustee shall authenticate
and deliver, such Physical Bond.
56
(f) Certain Additional Terms Applicable to Physical Bonds. (i) Any
transferee entitled to receive a Physical Bond may request that the principal
amount thereof be evidenced by one or more Physical Bonds in any authorized
denomination or denominations and the Bond Registrar shall comply with such
request if all other transfer restrictions are satisfied.
(ii) In the event that a transferor transfers less than the entire
principal amount of a Physical Bond surrendered for transfer, following the
transfer the Bond Registrar shall deliver to the transferor a new Physical
Bond of the same type in principal amount equal to the untransferred
portion of the surrendered Physical Bond.
(g) Transfers Not Covered by Section 3.11(e). The Bond Registrar shall
effect and record, upon receipt of a written request from the Corporation so to
do, a transfer not otherwise permitted by Section 3.11(e), such recording to be
done in accordance with the otherwise applicable provisions of Section 3.11(e),
upon the furnishing by the proposed transferor or transferee of a Non-
Registration Opinion and Supporting Evidence.
(h) General. By its acceptance of any 2009 Series Bond bearing the Private
Placement Legend, each Holder of such 2009 Series Bond acknowledges the
restrictions on transfer of such 2009 Series Bond set forth in this Indenture
and in the Private Placement Legend and agrees that it will transfer such 2009
Series Bond only as provided in the Indenture. The Bond Registrar shall not
register a transfer of any 2009 Series Bond unless such transfer complies with
the restrictions with respect thereto set forth in this Indenture. The Bond
Registrar shall not be required to determine (but may rely upon a determination
made by the Corporation) the sufficiency of any such certifications, legal
opinions or other information.
Section 3.12. Form of Regulation S Certificate.
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REGULATION S CERTIFICATE
To: The Chase Manhattan Bank,
as Trustee (the "Trustee")
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Trustee Administration
Re: Eleventh Supplemental Indenture (the "Indenture") dated as of March 31,
1999, among National Steel Corporation (the "Corporation") and the
Trustees
Ladies and Gentlemen:
This Certificate relates to our proposed transfer of $_____ principal
amount of bonds issued under the Indenture and to be designated the "First
Mortgage Bonds, 97/8% Series C due 2009" (hereinafter called the "2009 Series
Bonds"). Terms are used in this Certificate as defined in Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"). We hereby certify as
follows:
1. The offer of the 2009 Series Bonds was not made to a person in
the United States (unless such person or the account held by it for which
it is acting is excluded from the definition of "U.S. person" pursuant to
Rule 902(k) of Regulation S under the circumstances described in Rule
902(k)(2) of Regulation S) or specifically targeted at an identifiable
group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer
was outside the United States or we and any person acting on our behalf
reasonably believed that the buyer 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 was pre-arranged with a buyer in the
United States.
3. Neither we, any of our affiliates, nor any person acting on our
or their behalf has made any directed selling efforts in the United States.
4. The proposed transfer of 2009 Series Bonds is not part of a plan
or scheme to evade the registration requirements of the Securities Act.
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5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the 2009 Series Bonds, and the
proposed transfer takes place before the Offshore 2009 Series Bond Exchange
Date referred to in the Indenture, or we are an officer or director of the
Corporation or a distributor, we certify that the proposed transfer is
being made in accordance with the provisions of Rule 904 of Regulation S.
You and the Corporation are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Seller]
By:________________________
Name:
Title:
Address:
Date of this Certificate: _________, 199__
Signature Guarantee: _______________________________
Signatures must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "SIGNATURE GUARANTEE PROGRAM" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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Section 3.13. Form of Rule 144A Certificate.
RULE 144A CERTIFICATE
To: The Chase Manhattan Bank, as Trustee (the "Trustee")
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Trustee Administration
Re: Eleventh Supplemental Indenture (the "Indenture") dated as of March 31,
1999 among National Steel Corporation (the "Corporation") and the
Trustees
Ladies and Gentlemen:
This Certificate relates to our proposed purchase of $_____ principal
amount of bonds issued under the Indenture and to be designated the "First
Mortgage Bonds, 9 7/8% Series C due 2009" (hereinafter called the "2009 Series
Bonds"). We and, if applicable, each account for which we are acting, are
"qualified institutional buyers" within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"). We are
aware that the transfer of 2009 Series Bonds to us is being made in reliance on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A. Prior to the date of this Certificate we have been given the
opportunity to obtain from the Corporation the information referred to in Rule
144A(d)(4), and have either declined such opportunity or have received such
information.
You and the Corporation are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:____________________
Name:
Title:
Address:
Date of this Certificate: _____________ __, 199__
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Signature Guarantee: _______________________________
Signatures must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "SIGNATURE GUARANTEE PROGRAM" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Section 3.14. CUSIP Numbers. The Corporation in issuing the 2009 Series
Bonds may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the 2009 Series Bonds
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the 2009 Series Bonds, and
any such redemption shall not be affected by any defect in or omission of such
numbers. The Corporation will promptly notify the Trustee of any change in the
CUSIP numbers.
Section 3.15. Notice to Holders; Waiver. Where this Supplemental Indenture
provides for notice of any event to Holders of 2009 Series Bonds by the
Corporation or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Bond 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.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical 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 sufficient giving of such
notice for every purpose hereunder.
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Where this Supplemental 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.
ARTICLE 4
PARTICULAR COVENANTS OF THE CORPORATION
Each of the following covenants contained in this Article 4 shall remain in
effect, subject to Section 4.04, for so long as any of the 2009 Series Bonds are
outstanding:
Section 4.01. Payment of Securities. The Corporation shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the 2009 Series Bonds and in this Supplemental Indenture. Principal
and interest shall be considered paid on the date due if on such date the
Trustee holds in accordance with this Supplemental Indenture money sufficient to
pay all principal and interest then due and the Trustee is not prohibited from
paying such money to the holders of the 2009 Series Bonds on that date pursuant
to the terms of this Supplemental Indenture.
The Corporation shall pay interest on overdue principal at the rate
specified therefor in the 2009 Series Bonds, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
Section 4.02. SEC Reports. Notwithstanding that the Corporation may not be
required to remain subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Corporation shall file with, or furnish to, the SEC
such annual reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such information, documents and reports to
be so filed at the times specified for the filing of such information, documents
and reports under such Sections (the "REQUIRED FILING TIMES"); provided,
however, that the Corporation shall not be so obligated to file such
information, documents and reports with the SEC if the SEC does not permit such
filings. The Corporation shall also in any event (a) within 15 days of each
Required Filing Time, provide the Trustee and the Holders of 2009 Series Bonds
with copies of such information, documents and reports and (b) if the SEC does
62
not permit the filing of such information, documents and reports, promptly upon
written request by a prospective Holder of 2009 Series Bonds supply copies of
such information, documents and reports to such prospective Holder of 2009
Series Bonds.
Section 4.03. Limitation on Lines of Business. Neither the Corporation
nor any of its Restricted Subsidiaries shall directly or indirectly engage to
any substantial extent in any line or lines of business activity other than the
business of the Corporation and its Restricted Subsidiaries on March 8, 1999
(and any business reasonably related thereto).
Section 4.04 Covenant Suspension. If and for so long as the Corporation
reaches and maintains Investment Grade Status, the Corporation and the
Restricted Subsidiaries shall be released from their obligations to comply with
Sections 4.03, 4.05, 4.06, 4.10, 4.11, 4.12, 5.01(a)(v) and (vi), and clause (x)
of the second paragraph (and such clause (x) as referred to in the first
paragraph) of Section 4.14. The Corporation shall notify the Trustee in writing
when it reaches Investment Grade Status and when it ceases to have Investment
Grade Status.
Section 4.05 Limitation on Debt and Restricted Subsidiary Preferred Stock.
The Corporation shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, Incur any Debt (which includes, in the case of
Restricted Subsidiaries, Preferred Stock); provided however that (a) the
Corporation and Restricted Subsidiaries may Incur Debt if (i) after giving pro
forma effect to the application of the proceeds thereof, no Default or Event of
Default would occur as a consequence of such Incurrence or be continuing
following such Incurrence and (ii) after giving effect to the Incurrence of such
Debt and the application of the proceeds thereof, the Consolidated Interest
Coverage Ratio would be greater than 2.50 to 1.00 and, (b) the Corporation and
its Restricted Subsidiaries may incur debt if such Debt is Permitted Debt.
Section 4.06 Limitation on Restricted Payments.
(a) The Corporation shall not make, and shall not permit any Restricted
Subsidiary to make, directly or indirectly, any Restricted Payment if at the
time of, and after giving pro forma effect to, such proposed Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing;
(ii) the Corporation could not Incur at least $1.00 of additional Debt
pursuant to Section 4.05 (a); or
63
(iii) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made since March 8, 1999 (the amount of any
Restricted Payment, if made other than in cash, to be based upon Fair Market
Value) would exceed an amount equal to the sum of:
(A) 50% of the aggregate amount of Consolidated Net Income
accrued during the period (treated as one accounting period) from and after
the first day of the fiscal quarter following the end of the most recent
fiscal quarter ended immediately prior to March 8, 1999 to the end of the
most recent fiscal quarter ending at least 45 days prior to the date of
such Restricted Payment (or if the aggregate amount of Consolidated Net
Income for such period shall be a deficit, minus 100% of such deficit);
(B) Capital Stock Sale Proceeds;
(C) the amount by which Debt (other than Subordinated
Obligations issued or sold prior to March 8, 1999) of the Corporation is
reduced on the Corporation's balance sheet upon the conversion or exchange
(other than by a Subsidiary of the Corporation) subsequent to March 8, 1999
of any Debt of the Corporation convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the Corporation (less the amount
of any cash or other Property distributed by the Corporation or any
Restricted Subsidiary upon such conversion or exchange); and
(D) to the extent not otherwise included in the Consolidated Net
Income of the Corporation, an amount equal to the sum of (x) the net
reduction in Investments in any Person (other than reductions in Permitted
Investments) resulting from the payment in cash of interest on Debt,
dividends, repayments of loans or advances, or other transfers of assets,
in each case to the Corporation or any Restricted Subsidiary after March 8,
1999 from such Person and (y) the portion (proportionate to the
Corporation's equity interest in such Subsidiary) of the Fair Market Value
of the net assets of any Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,
however, that in the case of (x) or (y) above the foregoing sum shall not
exceed the amount of Investments previously made (and treated as a
Restricted Payment) by the Corporation or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary.
64
(b) Notwithstanding the foregoing limitation, the Corporation may:
(i) pay dividends on its Capital Stock within 60 days of the declaration
thereof if, on said declaration date, such dividends could have been paid in
compliance with this Indenture; provided, however, that at the time of such
payment of such dividend, no other Default or Event of Default shall have
occurred and be continuing (or would result therefrom); provided further,
however, that such dividend shall be included in the calculation of the amount
of Restricted Payments;
(ii) purchase, repurchase, redeem, legally defease, acquire or retire for
value Capital Stock of the Corporation or Subordinated Obligations in exchange
for, or out of the proceeds of the substantially concurrent sale of, Capital
Stock of the Corporation (other than Disqualified Stock and other than Capital
Stock issued or sold to a Subsidiary of the Corporation or an employee stock
ownership plan or trust established by the Corporation or any of its
Subsidiaries for the benefit of their employees); provided, however, that (A)
such purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall be excluded in the calculation of the amount of Restricted
Payments and (B) the Net Cash Proceeds from such exchange or sale shall be
excluded from the calculation of the amount of Capital Stock Sale Proceeds;
(iii) purchase, repurchase, redeem, legally defease, acquire or retire for
value any Subordinated Obligations in exchange for, or out of the proceeds of
the substantially concurrent sale of, Permitted Refinancing Debt; provided,
however, that such purchase, repurchase, redemption, legal defeasance,
acquisition or retirement shall be excluded in the calculation of the amount of
Restricted Payments;
(iv) expend up to $5,000,000 in any fiscal year of the Corporation to
repurchase common stock of the Corporation (i) to distribute to current or
former employees, officers and directors of the Corporation and its
Subsidiaries, including upon the exercise of stock options granted to such
employees, officers and directors, (ii) from such current or former employees,
officers or directors or (iii) otherwise in order to distribute as employee
compensation; provided, however, that at the time of, and after giving pro forma
effect to, any such expenditure, no other Default or Event of Default shall have
occurred and be continuing; provided further, however, that such repurchase
shall be excluded in the calculation of the amount of Restricted Payments;
65
(v) to repurchase up to 700,000 shares of common stock of the
Corporation pursuant to the stock repurchase approved by the Board of
Directors of the Corporation on August 26, 1998; provided, however, that at
the time of, and after giving pro forma effect to, any such expenditure, no
other Default or Event of Default shall have occurred and be continuing;
provided further, however, that such repurchase shall be included in the
calculation of the amount of Restricted Payments; and
(vi) expend up to $50 million for Restricted Payments in addition to
amounts permitted pursuant to clauses (i) through (v) above; provided,
however, that at the time of, and after giving pro forma effect to, any
such expenditure, no other Default or Event of Default shall have occurred
and be continuing; provided further, however, that such expenditures shall
be included in the calculation of the amount of Restricted Payments.
Section 4.07. Limitation on Pledged Subsidiaries to Incur Indebtedness or
Issue Capital Stock. The Corporation will not:
(a) permit any Wholly-Owned Subsidiary the stock of which is at the time
pledged under the Indenture to incur any indebtedness, direct or contingent,
except:
(i) current liabilities (other than for money borrowed) incurred in
the ordinary and regular conduct of business and payable within one year
after the date of the incurring thereof; and
(ii) indebtedness to the Corporation, and the extension, renewal or
refunding thereof from time to time; or
(b) permit any Wholly-Owned Subsidiary the stock of which is at the time
pledged under the Indenture to issue any capital stock (other than directors'
qualifying shares, where necessary) except to the Corporation.
Nothing contained in this Supplemental Indenture shall prevent any such
Wholly-Owned Subsidiary from acquiring property subject to any mortgage or other
lien to which the property is subject at the time of the acquisition, or from
creating any mortgage upon, or pledge of, any property hereafter acquired, at
the time of acquisition thereof, in order to secure payment of the purchase
price thereof or in order to secure any loan incurred for the purpose of
financing such acquisition, provided that the Corporation shall deposit with the
Trustee to be held as part of the trust estate cash equal to:
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(i) the aggregate principal amount of additional Bonds, if any,
issued upon the basis of the stock of such subsidiary, and
(ii) the amount of cash, if any, withdrawn upon the basis of the stock
of such Wholly-Owned Subsidiary pursuant to Sections 9.01 and 9.03 of the
Original Indenture;
and provided, further, that the principal amount of the indebtedness
secured by any such mortgage, lien or pledge shall not exceed 66 2/3% of the
cost to such Wholly-Owned Subsidiary of the property subject to such mortgage,
lien or pledge; or prevent the renewal or extension of any indebtedness secured
by any lien permitted by this paragraph; or prevent the refunding of any such
indebtedness by a new loan not exceeding the amount of the indebtedness refunded
and secured by the property which secured such refunded indebtedness. If such
property shall thereafter be subjected to the lien of the Indenture pursuant to
any provision thereof, the existence of such mortgage, lien or pledge shall not
constitute a breach of any covenant hereunder.
The Corporation will not assign any indebtedness of a Wholly-Owned
Subsidiary the stock of which is pledged under the Indenture, except to the
Trustees or, after such assignment to the Trustees, except as provided in the
following sentence. The Corporation will not sell or otherwise dispose of any
indebtedness or capital stock of any such Wholly-Owned Subsidiary pledged under
the Indenture unless prior to such sale or other disposition, or at the same
time, all other indebtedness and capital stock of such Wholly-Owned Subsidiary
owned directly or indirectly by the Corporation and its other subsidiaries is
sold or otherwise disposed of.
Section 4.08. Limitation on Sale of Mortgaged Property. The Corporation
will not sell or otherwise dispose of a part (less than substantially all) of
the Mortgaged Property except as provided in Section 7.04, 8.01 or 8.02 of the
Original Indenture or upon the release thereof as provided in Section 8.03 or
8.04 of the Indenture, or consolidate or merge with or into, or transfer or
convey all or substantially all the Mortgaged Property, as an entirety to, any
other Person, or permit any other Person to merge into it, except as provided in
Article 13 of the Original Indenture.
Notwithstanding the provisions of Section 8.03 of the Original Indenture
but subject to the provisions of Section 4.16 thereof, the Corporation from time
to time may sell, exchange or otherwise dispose of any property constituting
Mortgaged Property other than shares of stock or other securities or
indebtedness of any corporation pledged hereunder and the Trustees shall release
the same from the lien of this Indenture without compliance with any of the
provisions of said
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Section 8.03 and without the deposit of cash with the Trustees, but only subject
to certain exceptions described below upon receipt by the Trustee of:
(a) A request evidenced by an Officers' Certificate; and
(b) An engineer's certificate, stating in substance:
(i) A description in reasonable detail of the property to be
released;
(ii) A description in reasonable detail of the consideration, if
any, for the property to be released;
(iii) The then fair value, in the opinion of the signer, of the
property to be released, which fair value shall in no event exceed
$100,000;
(iv) That neither (i) the aggregate fair value of all property
released under this Section 4.08 in the calendar year in which the
property described in the certificate is to be released nor (ii) the
aggregate consideration received by the Corporation for all property
so released for such calendar year, exceeds $250,000; and
(v) That, in the opinion of the signer, such property is not
useful or necessary in the conduct of the business of the Corporation
and that such release will not impair the security under the Indenture
in contravention of the provisions of the Indenture and is desirable
in the proper conduct of the business of the Corporation or is
otherwise in the best interests of the Corporation.
No property shall be released under the provisions described in this
Section 4.08 in any calendar year after either (i) aggregate fair value of all
property released under the provisions described in this Section 4.08 for such
calendar year, or (ii) the aggregate consideration received by the Corporation
for such property for such calendar year, exceeds $250,000.
Section 4.0. Change of Control. (a) Upon the occurrence of a Change of
Control, each Holder of 2009 Series Bonds shall have the right to require the
Corporation to repurchase all or any part of such Holder's 2009 Series Bonds
pursuant to the offer described below (the "CHANGE OF CONTROL OFFER") at a
purchase price (the "CHANGE OF CONTROL PURCHASE PRICE") equal to 101% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the purchase date (subject to the right of Holders of record on the relevant
record date
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to receive interest due on the relevant interest payment date that is on or
prior to the purchase date).
(b) Within 30 days following any Change of Control, the Corporation shall
(a) cause a notice of the Change of Control Offer to be sent at least once to
the Dow Xxxxx News Service or similar business news service in the United States
and (b) send, by first-class mail, with a copy to the Trustee, to each Holder of
2009 Series Bonds, at such Holder's address appearing in the Bond Register, a
notice stating: (i) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to this Section 4.09 and that all 2009
Series Bonds timely tendered will be accepted for payment; (ii) the Change of
Control Purchase Price and the purchase date, which shall be, subject to any
contrary requirements of applicable law, a Business Day no earlier than 30 days
nor later than 60 days from the date such notice is mailed (the "CHANGE OF
CONTROL PAYMENT DATE"); (iii) that any 2009 Series Bonds (or portion thereof)
accepted for payment (and duly paid on the Change of Control Payment Date)
pursuant to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date; (iv) that any 2009 Series Bonds (or portions
thereof) not tendered will continue to accrue interest; (v) the circumstances
and relevant facts regarding such Change of Control (including information with
respect to pro forma historical income, cash flow and capitalization after
giving effect to the Change of Control); and (vi) the procedures that Holders of
2009 Series Bonds must follow in order to tender their 2009 Series Bonds (or
portions thereof) for payment, and the procedures that Holders of 2009 Series
Bonds must follow in order to withdraw an election to tender 2009 Series Bonds
(or portions thereof) for payment.
(c) Holders electing to have a 2009 Series Bond purchased will be required
to surrender the 2009 Series Bond, with an appropriate form (which may include
the form on the reverse thereof) duly and properly completed, to the Corporation
or its agent at the address specified in the notice at least three Business Days
prior to the Change of Control Payment Date. Holders will be entitled to
withdraw their election if the Trustee or the Corporation receives not later
than one Business Day prior to the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the 2009 Series Bond which was delivered for purchase by
the Holder and a statement that such Holder is withdrawing his election to have
such 2009 Series Bonds purchased. Holders whose 2009 Series Bond are purchased
only in part shall be issued new 2009 Series Bonds equal in principal amount to
the unpurchased portion of the 2009 Series Bonds surrendered.
(d) On or prior to the Change of Control Payment Date, the Corporation
shall irrevocably deposit with the Trustee or with the Paying Agent (or, if the
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Corporation or any of its Wholly Owned Subsidiaries is acting as the Paying
Agent, segregate and hold in trust) in cash an amount equal to the Change of
Control Purchase Price payable to the Holders entitled thereto, to be held for
payment in accordance with the provisions of this Section. On the Change of
Control Payment Date, the Corporation shall deliver to the Trustee the 2009
Series Bonds or portions thereof which have been properly tendered to and are to
be accepted by the Corporation for payment. The Trustee or the Paying Agent
shall, on the Change of Control Payment Date, mail or deliver payment to each
tendering Holder of the Change of Control Purchase Price. In the event that the
aggregate Change of Control Purchase Price is less than the amount delivered by
the Corporation to the Trustee or the Paying Agent, the Trustee or the Paying
Agent, as the case may be, shall deliver the excess to the Corporation
immediately after the Change of Control Payment Date.
(e) At the time the Corporation delivers 2009 Series Bonds to the Trustee
which are to be accepted for purchase, the Corporation shall also deliver an
Officers' Certificate stating that such 2009 Series Bonds are to be accepted by
the Trustee pursuant to and in accordance with the terms of this Section.
(f) The Corporation will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of 2009 Series Bonds pursuant
to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section, the
Corporation will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section by virtue
of such compliance.
Section 4.10. Limitation on Sale of Assets Other Than Mortgaged Property.
(a) The Corporation shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Sale, which term for purposes
of this Section 4.10, shall exclude sales or other dispositions of Mortgaged
Property made in compliance with the terms of the Original Indenture and Section
4.08, unless (i) the Corporation or such Restricted Subsidiary receives
consideration at the time of such Asset Sale (or, in the case of a lease that is
an Asset Sale, the Corporation or such Restricted Subsidiary is to receive over
the term of such lease) consideration at least equal to the fair value of the
Property subject to such Asset Sale; (ii) at least 75% of the consideration paid
to the Corporation or such Restricted Subsidiary in connection with such Asset
Sale is in the form of cash, Cash Equivalents, Additional Assets or the
assumption by the purchaser of liabilities of the Corporation or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
2009 Series Bonds) as a result of which the Corporation and the Restricted
Subsidiaries are no longer obligated
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with respect to such liabilities; and (iii) the Corporation delivers an
Officers' Certificate to the Trustee certifying that such Asset Sale complies
with the foregoing clauses (i) and (ii).
(b) The Net Available Cash (or any portion thereof) from Asset Sales may
be applied by the Corporation or a Restricted Subsidiary, to the extent the
Corporation or such Restricted Subsidiary elects (or is required by the terms of
any Debt): (i) to prepay, repay, legally defease or purchase Senior Debt of the
Corporation or Debt of any Restricted Subsidiary (excluding, in any such case,
Debt owed to the Corporation or an Affiliate of the Corporation); (ii) to
permanently fund pension or other post-retirement employee benefit obligations
("OPEB") obligations of the Corporation; or (iii) to reinvest in Additional
Assets (including by means of an Investment in Additional Assets by a Restricted
Subsidiary with Net Available Cash received by the Corporation or another
Restricted Subsidiary) or to commit to reinvest in Additional Assets (such
commitments to include amounts anticipated to be expended pursuant to the
Corporation's capital investment plan (x) as adopted by the Board of Directors
and (y) evidenced by the filing of an Officers' certificate with the Trustee
stating that the total amount of the Net Available Cash from such Asset Sale,
after giving effect to the prior application of any portion thereof pursuant to
clause (i) or (ii) of this paragraph (b), is less than the aggregate amount
contemplated to be expended pursuant to such capital investment plan within 24
months of the consummation of such Asset Sale)); provided, however, that in
connection with any prepayment, repayment, legal defeasance or purchase of Debt
pursuant to clause (i) above, the Corporation or such other Restricted
Subsidiary shall retire such Debt and shall cause the related loan commitment
(if any) to be permanently reduced by an amount equal to the principal amount so
prepaid, repaid, legally defeased or purchased.
(c) Any Net Available Cash from an Asset Sale not applied in accordance
with the preceding paragraph within twelve months from the date of the receipt
of such Net Available Cash (or committed to be reinvested in Additional Assets
pursuant to clause (iii) of the preceding paragraph within twelve months from
the date of the receipt of such Net Available Cash and not actually reinvested
in Additional Assets pursuant to such investment commitment within twenty-four
months from the date of the receipt of such Net Available Cash) shall constitute
"EXCESS PROCEEDS."
When the aggregate amount of Excess Proceeds exceeds $5,000,000 (taking
into account income earned on such Excess Proceeds, if any), the Corporation
will be required to make an offer to purchase (the "PREPAYMENT OFFER") the 2009
Series Bonds which offer shall be in the amount of the Excess Proceeds, on a pro
rata basis according to principal amount, at a purchase price
71
equal to 100% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the Purchase Date (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant interest
payment date that is on or prior to the purchase date) in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
this Supplemental Indenture. To the extent that any portion of the amount of Net
Available Cash remains after compliance with the preceding sentence and provided
that all Holders of 2009 Series Bonds have been given the opportunity to tender
their 2009 Series Bonds for purchase as described in Section 4.10(d), the
Corporation or such Restricted Subsidiary may use such remaining amount for any
purpose permitted by this Indenture and the amount of Excess Proceeds will be
reset to zero.
(d) (i) Within five Business Days after the Corporation is obligated to
make a Prepayment Offer as described in Section 4.10(c), the Corporation will
send a written notice, by first-class mail, to the Trustee and the Holders of
2009 Series Bonds (the "PREPAYMENT OFFER NOTICE"), accompanied by such
information regarding the Corporation and its Subsidiaries as the Corporation in
good faith believes will enable such Holders to make an informed decision with
respect to such Prepayment Offer (which at a minimum shall include the most
recently filed Annual Report on Form 10-K (including audited consolidated
financial statements) of the Corporation, the most recent subsequently filed
Quarterly Report on Form 10-Q of the Corporation and any Current Report on Form
8-K of the Corporation filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Sales otherwise described in the offering
materials, or corresponding successor reports (or, during any time that the
Corporation is not subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, corresponding reports prepared pursuant to Section 4.02), a
description of material developments in the Corporation's business subsequent to
the date of the latest of such reports and if material, appropriate pro forma
financial information). The Prepayment Offer Notice shall state, that a
Prepayment Offer is being made pursuant to this Section 4.10 and that all 2009
Series Bonds timely tendered will be accepted for payment (subject to
proration), that any 2009 Series Bonds (or any portion thereof) accepted for
payment (and duly paid on the Purchase Date) pursuant to the Prepayment Offer
shall cease to accrue interest after the Purchase Date, the purchase price and
purchase date, which shall be a Business Day no earlier than 30 days nor later
than 60 days from the date the Prepayment Offer Notice is mailed (the "PURCHASE
DATE"), the aggregate principal amount of 2009 Series Bonds eligible to be
purchased, that any 2009 Series Bonds (or portions thereof) not tendered will
continue to accrue interest and the procedures that Holders of 2009 Series
Bonds must follow in order to tender their 2009 Series Bonds (or portions
thereof) for payment and the
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procedures that Holders of 2009 Series Bonds must follow in order to withdraw an
election to tender 2009 Series Bonds (or portions thereof) for payment.
(ii) Not later than the date upon which written notice of a
Prepayment Offer is delivered to the Trustee as provided above, the
Corporation shall deliver to the Trustee an Officers' Certificate as to (A)
the amount of the Prepayment Offer (the "OFFER AMOUNT"), (B) the allocation
of the Net Available Cash from the Asset Sales pursuant to which such
Prepayment Offer is being made and (C) the compliance of such allocation
with the provisions of Section 4.10(b). On such date, the Corporation shall
also irrevocably deposit with the Trustee or with the Paying Agent (or, if
the Corporation or a Wholly Owned Subsidiary is the Paying Agent, shall
segregate and hold in trust) in Cash Equivalents, maturing on the last day
prior to the Purchase Date or on the Purchase Date if funds are immediately
available by open of business, an amount equal to the Offer Amount to be
held for payment in accordance with the provisions of this Section. Upon
the expiration of the period for which the Prepayment Offer remains open
(the "OFFER PERIOD"), the Corporation shall deliver to the Trustee for
cancellation the 2009 Series Bonds or portions thereof which have been
properly tendered to and are to be accepted by the Corporation. The Trustee
or the Paying Agent shall, on the Purchase Date, mail or deliver payment to
each tendering Holder in the amount of the purchase price. In the event
that the aggregate purchase price of the 2009 Series Bonds delivered by the
Corporation to the Trustee is less than the Offer Amount, the Trustee or
the Paying Agent shall deliver the excess to the Corporation immediately
after the expiration of the Offer Period for application in accordance with
this Section.
(iii) Holders electing to have a 2009 Series Bond purchased shall be
required to surrender the 2009 Series Bond, with an appropriate form (which
may include the form on the reverse thereof) duly and properly completed,
to the Corporation or its agent at the address specified in the notice at
least three Business Days prior to the Purchase Date. Holders shall be
entitled to withdraw their election if the Trustee or the Corporation
receives not later than one Business Day prior to the Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the 2009 Series Bond which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such 2009 Series Bond purchased. If at the
expiration of the Offer Period the aggregate principal amount of 2009
Series Bonds surrendered by Holders exceeds the Offer Amount, the
Corporation shall select the 2009 Series Bonds to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the
73
Corporation so that only 2009 Series Bonds in denominations of $1,000, or
integral multiples thereof, shall be purchased). Holders whose 2009 Series
Bonds are purchased only in part shall be issued new 2009 Series Bonds
equal in principal amount to the unpurchased portion of the 2009 Series
Bonds surrendered.
(iv) At the time the Corporation delivers 2009 Series Bonds to the
Trustee which are to be accepted for purchase, the Corporation shall also
deliver an Officers' Certificate stating that such 2009 Series Bonds are to
be accepted by the Trustee pursuant to and in accordance with the terms of
this Section. A 2009 Series Bond shall be deemed to have been accepted for
purchase at the time the Trustee or the Paying Agent mails or delivers
payment therefor to the surrendering Holder.
(e) The Corporation will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of 2009 Series Bonds pursuant
to this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Corporation will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section by virtue thereof.
Section 4.1. Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Corporation shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual restriction on the right 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, or pay any Debt or other obligation owed, to
the Corporation or any other Restricted Subsidiary, (b) make any loans or
advances to the Corporation or any other Restricted Subsidiary, (c) transfer any
of its Property to the Corporation or any other Restricted Subsidiary or (d)
guarantee any Debt of the Corporation or any other Restricted Subsidiary. The
foregoing limitations will not apply (i) with respect to clauses (a), (b), (c)
and (d), to restrictions (A) in effect on Xxxxx 0, 0000, (X) relating to Debt of
a Restricted Subsidiary and existing at the time it became a Restricted
Subsidiary if such restriction was not created in connection with or in
anticipation of the transaction or series of transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by the
Corporation, (C) which result from the Refinancing of Debt Incurred pursuant to
an agreement referred to in the immediately preceding clause (i)(A) or (B) above
or in clause (ii)(A) or (B) below, provided that such restriction is no less
favorable to the Holders of 2009 Series Bonds than those under the agreement
evidencing the Debt so Refinanced, (D) on Sales Finance or any other bankruptcy-
remote special-purpose
74
Subsidiary of the Corporation that purchases or sells accounts receivable or
inventory pursuant to the Credit Facilities or (E) arising or agreed to in a
joint venture agreement, entered into by the Corporation or a Restricted
Subsidiary in the ordinary course of business that do not (as determined by the
Corporation and certified in a resolution of the Board of Directors or a
certificate of the chief financial or chief accounting officer of the
Corporation delivered to the Trustee prior to or promptly following such
encumbrance or restriction becoming effective), individually or in the
aggregate, (1) detract from the value of property or assets of the Corporation
or any Restricted Subsidiary in any manner material to the Corporation or any
Restricted Subsidiary or (2) materially adversely affect the Corporation's
ability to make principal or interest payments on the 2009 Series Bonds and (ii)
with respect to clause (c) only, to restrictions (A) relating to Debt that is
permitted to be Incurred and secured pursuant to Section 4.05 and Section 4.12
of the Original Indenture that limit the right of the debtor to dispose of the
Property securing such Debt, (B) encumbering Property at the time such Property
was acquired by the Corporation or any Restricted Subsidiary, so long as such
restriction relates solely to the Property so acquired and was not created in
connection with or in anticipation of such acquisition, (C) resulting from
customary provisions restricting subletting or assignment of leases or customary
provisions in other agreements that restrict assignment of such agreements or
rights thereunder or (D) customary restrictions contained in asset sale
agreements limiting the transfer of such Property pending the closing of such
sale.
Section 4.12. Limitation on Transactions with Affiliates. (a) The
Corporation shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, conduct any business or enter into or suffer to exist
any transaction or series of transactions (including the purchase, sale,
transfer, assignment, lease, conveyance or exchange of any Property or the
rendering of any service) with, or for the benefit of, any Affiliate of the
Corporation (an "AFFILIATE TRANSACTION"), unless (i) the terms of such Affiliate
Transaction are (A) set forth in writing and (B) no less favorable to the
Corporation or such Restricted Subsidiary, as the case may be, than those that
could be obtained in a comparable arm's-length transaction with a Person that is
not an Affiliate of the Corporation, (ii) if such Affiliate Transaction involves
aggregate payments or value in excess of $10,000,000, the Board of Directors
(including a majority of the disinterested members of the Board of Directors)
approves such Affiliate Transaction and, in its good faith judgment, believes
that such Affiliate Transaction complies with clause (i) of this paragraph as
evidenced by a Board Resolution promptly delivered to the Trustee and (iii) if
such Affiliate Transaction involves aggregate payments or value in excess of
$20,000,000, the Corporation obtains a written opinion from an Independent
Financial Advisor to the effect that such Affiliate Transaction is fair, from a
financial point of view, to the Corporation or such Restricted Subsidiary, as
the case may be.
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(b) Notwithstanding the foregoing limitation, the Corporation or any
Restricted Subsidiary may enter into or suffer to exist the following:
(i) any transaction or series of transactions between the
Corporation and one or more Restricted Subsidiaries or between two or more
Restricted Subsidiaries; provided that no more than 5% of the total voting
power of the Voting Stock (on a fully diluted basis) of any such Restricted
Subsidiary is owned by an Affiliate of the Corporation (other than a
Restricted Subsidiary);
(ii) any Restricted Payment permitted to be made pursuant to
Section 4.06;
(iii) any issuance of securities, or other payments, awards or
grants in securities or otherwise pursuant to, or the funding of,
employment arrangements, pension or other benefit plans, stock options and
stock ownership plans and other compensatory arrangements approved by the
Board of Directors;
(iv) the payment of reasonable fees to directors of the Corporation
or such Restricted Subsidiary who are not employees of the Corporation or
any Restricted Subsidiary;
(v) loans and advances to employees made in the ordinary course of
business and consistent with the past practices of the Corporation or such
Restricted Subsidiary, as the case may be, provided that such loans and
advances do not exceed $5,000,000 in the aggregate at any one time
outstanding; and
(vi) any payments for the purchase of steel products from NKK or
any of its Affiliates or the provision of services by NKK or any of its
Affiliates, including the construction by NKK or an Affiliate of the new
hot dip galvanizing facility at the Great Lakes Division; provided, that,
in each case, the terms of such payments are determined on an arm's length
basis and are approved by the disinterested members of the Board of
Directors of the Corporation; and
(vii) any Affiliate Transactions between the Corporation or any
Restricted Subsidiary and one or more Affiliate Joint Ventures that (x) are
on terms no less favorable to the Corporation or such Restricted
Subsidiary, as the case may be, than those that could be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate
of the Corporation and (y) if such Affiliate Transactions involve aggregate
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payments or value in excess of $10 million, the Board of Directors
(including a majority of the disinterested members of the Board of
Directors) approves such Affiliate Transaction, and in its good faith
judgment believes that such Affiliate Transaction complies with clause (x)
of this paragraph (vii).
Section 4.13. Limitation on Sale and Leaseback Transactions. The
Corporation shall not, and shall not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction with respect to any Property unless (a)
the Corporation or such Restricted Subsidiary would be entitled to (i) Incur
Debt in an amount equal to the Attributable Debt with respect to such Sale and
Leaseback Transaction pursuant to Section 4.05 and (ii) create a Lien on such
Property securing such Attributable Debt, and (b) such Sale and Leaseback
Transaction is effected in compliance with Section 4.10.
Section 4.14. Designation of Restricted and Unrestricted Subsidiaries. The
Board of Directors may designate any Subsidiary of the Corporation to be an
Unrestricted Subsidiary if (a) the Subsidiary to be so designated does not own
any Capital Stock or Debt of, or own or hold any Lien on any Property of, the
Corporation or any other Restricted Subsidiary (b) the Subsidiary to be so
designated is not obligated under any Debt, Lien or other obligation that, if in
default, would result (with the passage of time or notice or otherwise) in a
default on any Debt of the Corporation or of any Restricted Subsidiary and (c)
either (i) the Subsidiary to be so designated has total assets of $1,000 or less
or (ii such designation is effective immediately upon such entity becoming a
Subsidiary of the Corporation or any Restricted Subsidiary. Unless so
designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary
of the Corporation or of any Wholly Owned Subsidiary will be classified as a
Restricted Subsidiary, provided that the requirements set forth in clauses (x)
and (y) of the immediately following paragraph would be satisfied after giving
pro forma effect to such classification. Any Person not permitted by the terms
of the immediately preceding sentence to be classified as a Restricted
Subsidiary shall be automatically classified as an Unrestricted Subsidiary.
Except as provided in the first sentence of this paragraph, no Restricted
Subsidiary may be redesignated as an Unrestricted Subsidiary.
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary if, immediately after giving pro forma effect to such
designation, (x) the Corporation could Incur at least $1.00 of additional Debt
pursuant to Section 4.05 and (y) no Default or Event of Default shall have
occurred and be continuing or would result therefrom.
77
Any such designation or redesignation by the Board of Directors will be
evidenced to the Trustee by filing with the Trustee a Board Resolution giving
effect to such designation or redesignation and an Officers' Certificate (a)
certifying that such designation or redesignation complies with the foregoing
provisions and (b) giving the effective date of such designation or
redesignation, such filing with the Trustee to occur within 45 days after the
end of the fiscal quarter of the Corporation in which such designation or
redesignation is made (or, in the case of a designation or redesignation made
during the last fiscal quarter of the Corporation's fiscal year, within 90 days
after the end of such fiscal year).
Section 4.15. Compliance Certificate. The Corporation shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Corporation an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Corporation they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Corporation is taking or proposes to
take with respect thereto. The Corporation also shall comply with TIA (S)
314(a)(4).
Section 4.16. Further Instruments and Acts. Upon request of the Trustee,
the Corporation will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE 5
Successor Corporation
Section 5.01. When Corporation May Merge or Transfer Assets. (a) The
Corporation shall not merge, consolidate or amalgamate with or into any other
Person (other than a merger of a Wholly Owned Subsidiary into the Corporation)
or sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all its Property in any one transaction or series of transactions
unless: (i) the Corporation shall be the surviving Person (the "SURVIVING
PERSON") or the Surviving Person (if other than the Corporation) formed by such
merger, consolidation or amalgamation or to which such sale, transfer,
assignment, lease, conveyance or disposition is made shall be a Person organized
and existing under the laws of the United States of America, any State thereof
or the District of Columbia; (ii) the Surviving Person (if other than the
Corporation) expressly assumes, by supplemental indenture in form satisfactory
to the Trustee, executed and delivered to the Trustee by such Surviving Person,
the due and punctual
78
payment of the principal of and interest on all the 2009 Series Bonds, according
to their tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be performed by the Corporation
and confirms in writing the lien of the Indenture, including the after-acquired
property clauses thereof, on the Property subject to the Indenture; (iii) in the
case of a sale, transfer, assignment, lease, conveyance or other disposition of
all or substantially all the Corporation's Property, such Property shall have
been transferred as an entirety or virtually as an entirety to one Person; (iv)
immediately before and after giving effect to such transaction or series of
transactions on a pro forma basis (and treating, for purposes of this clause
(iv) and clauses (v) and (vi) below, any Debt which becomes, or is anticipated
to become, an obligation of the Surviving Person or any Restricted Subsidiary as
a result of such transaction or series of transactions as having been Incurred
by the Surviving Person or such Restricted Subsidiary at the time of such
transaction or series of transactions), no Default or Event of Default shall
have occurred and be continuing; (v) immediately after giving effect to such
transaction or series of transactions on a pro forma basis, the Corporation or
the Surviving Person, as the case may be, would be able to Incur at least $1.00
of additional Debt under Section 4.05; (vi) immediately after giving effect to
such transaction or series of transactions on a pro forma basis, the Surviving
Person shall have a Consolidated Net Worth in an amount which is not less than
the Consolidated Net Worth of the Corporation immediately prior to such
transaction or series of transactions; and (vii) the Corporation shall deliver,
or cause to be delivered, to the Trustee, in form reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such transaction and any supplemental indenture in respect thereto comply with
this Section 5.01 and that all conditions precedent herein provided for relating
to such transaction have been satisfied.
(b) The Surviving Person will succeed to, and be substituted for, and may
exercise every right and power of the Corporation under this Indenture, but the
predecessor Corporation in the case of a sale, transfer, assignment, lease,
conveyance or other disposition, shall not be released from the obligation to
pay the principal of and interest on the 2009 Series Bonds.
79
ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default. The following events shall be "ELEVENTH
SUPPLEMENTAL INDENTURE EVENTS OF DEFAULT" specific to the 2009 Series Bonds and
in addition to the Events of Default set forth in the Original Indenture:
(a) the Corporation defaults in any payment of interest on any 2009
Series Bond when the same becomes due and payable, and such default
continues for a period of 30 days;
(b) the Corporation defaults in the payment of the principal of any
2009 Series Bond when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon required repurchase, upon
acceleration or otherwise;
(c) the Corporation fails to comply with Article 5;
(d) the Corporation fails to comply with any of its agreements or
covenants in the 2009 Series Bonds or this Indenture (other than those
referred to in clause (a), (b) or (c) above) and such failure continues for
30 days after notice is given to the Corporation as specified below;
(e) a default by the Corporation or any Restricted Subsidiary under
any Debt of the Corporation or any Restricted Subsidiary which results in
the acceleration of the maturity of such Debt, or failure to pay any such
Debt at maturity, in an aggregate amount greater than $10,000,000 or its
foreign currency equivalent at the time;
(f) the Corporation or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
80
(iv) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Corporation or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Corporation or any Significant
Subsidiary or for any substantial part of its property;
(iii) orders the winding up or liquidation of the Corporation or
any Significant Subsidiary; or
(iv) is for any similar relief granted under any foreign laws;
and in each such case the order or decree remains unstayed and in effect
for 60 days; or
(h) any judgment or judgements for the payment of money in an
aggregate amount in excess of $10,000,000 or its foreign currency
equivalent at the time is entered against the Corporation or any Restricted
Subsidiary, and shall not be waived, satisfied or discharged for any period
of 60 consecutive days during which a stay of enforcement shall not be in
effect.
The foregoing will constitute Eleventh Supplemental Indenture Events of
Default whatever the reason for any such Eleventh Supplemental Indenture Event
of Default and whether it is voluntary or involuntary or is 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.
The term "BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
81
An Eleventh Supplemental Indenture Event of Default under clause (d) is not
an Eleventh Supplemental Indenture Event of Default until the Trustee or the
Holders of at least 25% in aggregate principal amount of the 2009 Series Bonds
then outstanding notify the Corporation (and, in the case of such notice by
Holders, the Trustee) of the Eleventh Supplemental Indenture Event of Default
and the Corporation does not cure such Eleventh Supplemental Indenture Event of
Default within the time specified after receipt of such notice. Such notice
must specify the Eleventh Supplemental Indenture Event of Default, demand that
it be remedied and state that such notice is a "NOTICE OF DEFAULT".
The Corporation shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice or the lapse of time would become an
Eleventh Supplemental Indenture Event of Default, its status and what action the
Corporation is taking or proposes to take with respect thereto.
Section 6.02. Acceleration. The 2009 Series Bonds may be declared due and
payable, upon these conditions and in the manner and with the effect provided in
Section 10.01 of the Original Indenture. In addition, if an Eleventh
Supplemental Indenture Event of Default (other than an Event of Default
specified in Section 6.01(f) or 6.01(g)) occurs and is continuing, the Trustee
by notice to the Corporation, or the Holders of at least 25% in aggregate
principal amount of the 2009 Series Bonds then outstanding by notice to the
Corporation and the Trustee, may declare the principal amount of all the 2009
Series Bonds then outstanding plus accrued but unpaid interest to the date of
acceleration to be immediately due and payable. In case an Eleventh
Supplemental Indenture Event of Default specified in Section 6.01(f) or 6.01(g)
shall occur, such amount with respect to all the 2009 Series Bonds shall be due
and payable immediately without any declaration or other act on the part of the
Trustee or the Holders of the 2009 Series Bonds. Subject to the rights of the
holders of 25% in principal amount of all Bonds to accelerate the maturity of
all of the Bonds as provided by Section 10.01 of the Original Indenture, the
Holders of a majority in aggregate principal amount of the outstanding 2009
Series Bonds may by written notice to the Trustee and the Corporation rescind
any declaration of acceleration if the rescission would not conflict with any
judgment or decree, and if all existing Eleventh Supplemental Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of the acceleration. No such rescission shall affect
any subsequent Eleventh Supplemental Indenture Event of Default or impair any
right consequent thereto.
Section 6.03. Other Remedies. If an Eleventh Supplemental Indenture Event
of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of or interest on the 2009 Series Bonds
82
or to enforce the performance of any provision of the 2009 Series Bonds or the
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the 2009 Series Bonds or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Bondholder in exercising any right or
remedy accruing upon an Eleventh Supplemental Indenture Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Eleventh Supplemental Indenture Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Defaults. The Holders of a majority in aggregate
principal amount of the 2009 Series Bonds by written notice to the Trustee may
waive an existing Eleventh Supplemental Indenture Event of Default and its
consequences, except an Eleventh Supplemental Indenture Event of Default in the
payment of the principal of or interest on a 2009 Series Bond or an Eleventh
Supplemental Indenture Event of Default in respect of a provision that under
Section 8.07 cannot be amended without the consent of each Bondholder affected.
When an Eleventh Supplemental Indenture Event of Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Eleventh
Supplemental Indenture Event of Default or impair any consequent right.
ARTICLE 7
Redemption of 2009 Series Bonds
Section 7.01. Optional Redemption of 2009 Series Bonds; Premiums Payable.
Except as set forth in the following paragraph, the 2009 Series Bonds will not
be redeemable at the option of the Corporation prior to March 1, 2004.
Thereafter, the 2009 Series Bonds will be redeemable at the option of the
Corporation, in whole or in part, on not less than 30 nor more than 60 days'
prior notice, upon payment of the redemption prices specified in the form of
definitive 2009 Series Bond hereinbefore set forth for redemption, together with
accrued interest (if any) to the date fixed for redemption.
At any time and from time to time prior to March 1, 2002 the Corporation
may redeem up to a maximum of 35% of the original aggregate principal amount of
the 2009 Series Bonds with the proceeds of one or more Public Equity Offerings
within 90 days after receipt of such proceeds, upon payment of a redemption
price equal to 109.875% of the principal amount thereof, together
83
with accrued interest, if any, to the date fixed for redemption (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date); provided, however, that after giving
effect to any such redemption, at least 65% of the original aggregate principal
amount of the 2009 Series Bonds remains outstanding. Any such redemption should
be made on a pro rate basis among all holders of 2009 Series Bonds.
Section 7.02. Surrender of Partially-redeemed 2009 Series Bonds. In the
event of the partial redemption of any of the 2009 Series Bonds the Trustee
shall not make any notation thereon as to the payment of a portion of the
principal amount of such partially-redeemed Bonds, but in accordance with
Section 5.01 of the Original Indenture such Bonds may be surrendered in exchange
for 2009 Series Bonds of authorized denominations for the unredeemed balance of
the principal amount of such partially-redeemed Bonds.
Section 7.03. Regarding Issue, Transfer and Exchange of 2009 Series Bonds
to be Redeemed. The Corporation shall not be required (i) to issue, transfer or
exchange any 2009 Series Bonds during a period beginning at the opening of
business 15 days next preceding any selection of 2009 Series Bonds to be
redeemed or thereafter until after the mailing of a notice of redemption of 2009
Series Bonds selected for redemption and ending at the close of business on the
day of such mailing, or (ii) to transfer or exchange any 2009 Series Bonds so
selected for redemption in whole or in part.
Section 7.04. Notices to Trustee. If the Corporation elects to redeem 2009
Series Bonds pursuant to this Article, it shall notify the Trustee in writing of
the redemption date, the principal amount of 2009 Series Bonds to be redeemed
and that such redemption is being made pursuant to the 2009 Series Bonds.
The Corporation shall give each notice to the Trustee provided for in this
Section at least 45 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Corporation to the effect that
such redemption will comply with the conditions herein.
Section 7.05. Notice of Redemption. At least 30 days but not more than 60
days before a date for redemption of 2009 Series Bonds, the Corporation shall
mail a notice of redemption by first-class mail to each Holder of 2009 Series
Bonds to be redeemed.
The notice shall identify the 2009 Series Bonds to be redeemed and shall
state:
84
(i) the redemption date;
(ii) the redemption price;
(iii) the name and address of the Place of Payment;
(iv) that 2009 Series Bonds called for redemption must be surrendered
at the Place of Payment to collect the redemption price;
(v) if fewer than all the outstanding 2009 Series Bonds are to be
redeemed, the identification and principal amounts of the particular 2009
Series Bonds to be redeemed;
(vi) that, unless the Corporation defaults in making such redemption
payment or the Trustee or paying agent is prohibited from making such
payment pursuant to the terms of the Indenture, interest on 2009 Series
Bonds (or portion thereof) called for redemption ceases to accrue on and
after the redemption date; and
(vii) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the 2009
Series Bonds.
At the Corporation's request, the Trustee shall give the notice of
redemption in the Corporation's name and at the Corporation's expense. In such
event, the Corporation shall provide the Trustee with the information required
by this Section.
Section 7.06. Effect of Notice of Redemption. Once notice of redemption is
mailed, 2009 Series Bonds called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
at the Place of Payment, such 2009 Series Bonds shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date that is on or prior to
the date of redemption). Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
85
ARTICLE 8
Miscellaneous
Section 8.01. Acceptance of Trusts. The Trustees accept the trust created
by this Supplemental Indenture and agree to execute the same, but only on the
terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustees. The Trustees make no representations and shall have no responsibility
as to the validity of this Supplemental Indenture or the Bonds issued hereunder
or the due execution thereof by the Corporation.
Section 8.02. Benefits Restricted to Parties and Holders of Bonds. Nothing
in this Supplemental Indenture, expressed or implied, is intended or shall be
construed to confer upon, or to give to, any person, other than the parties
hereto, and the holders of 2009 Series Bonds, any right, remedy or claim under
or by reason of this Supplemental Indenture or any covenant, condition or
stipulation hereof; all the covenants, stipulations, promises and agreements in
this Supplemental Indenture contained are and shall be for the sole and
exclusive benefit of the parties hereto and their successors and the holders of
such Bonds.
Section 8.03. Execution in Counterparts. This Supplemental Indenture may
be executed in any number of counterparts, each of which so executed shall be
deemed to be an original and all of such counterparts shall together constitute
a single instrument.
Section 8.04. Original Indenture and Supplements Construed as One
Instrument. The Original Indenture as heretofore supplemented and as
supplemented by this Supplemental Indenture is in all respects ratified and
confirmed; and the Original Indenture as heretofore supplemented and as
supplemented by this Supplemental Indenture shall be read, taken and construed
together as one instrument.
Section 8.05. Amount Advanced under Indenture. The amount which at the
time of the execution and delivery of this Supplemental Indenture has been
advanced or accrued and remains outstanding under the Original Indenture and all
instruments supplemental thereto, to and including this Supplemental Indenture,
is $375,000,000.
Section 8.06. With Consent of Holders. For so long as the 2009 Series
Bonds are outstanding, the Company may not amend this Supplemental Indenture or
the 2009 Series Bonds without the written consent of the Holders of at least a
majority in aggregate principal amount of the 2009 Series Bonds. Further,
without
86
the consent of each holder of 2009 Series Bonds affected thereby, an amendment
may not:
(1) reduce the percentage of 2009 Series Bonds whose Holders must
consent to an amendment or waiver;
(2) reduce the rate of or change the time for payment of interest on
any 2009 Series Bonds;
(3) reduce the principal of or extend the Stated Maturity of any 2009
Series Bonds;
(4) reduce the amount payable upon the redemption or repurchase of
any 2009 Series Bonds under Article 7 or Section 4.09 or 4.10 or change the
time at which any 2009 Series Bonds may be redeemed in accordance with
Article 7;
(5) make any 2009 Series Bonds payable in a currency other than that
stated in the 2009 Series Bonds;
(6) subordinate the 2009 Series Bonds to any other obligation of the
Corporation; or
(7) at any time after a Change of Control or Asset Sale has occurred,
change the time at which the Change of Control Offer or Prepayment Offer
relating thereto must be made or at which the 2009 Series Bonds must be
repurchased pursuant to such Change of Control Offer or Prepayment Offer.
Section 8.07. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE 2009
SERIES BONDS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 8.08. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the 2009 Series Bonds shall comply with the TIA as then in effect.
Section 8.09. Recitals. The recitals contained herein shall be taken as
the statements of the Company, and the Trustees assume no responsibility for
their correctness. The Trustees make no representations as to the validity or
sufficiency of this Eleventh Supplemental Indenture.
87
IN WITNESS WHEREOF, said National Steel Corporation has caused this
Supplemental Indenture to be executed on its behalf by one of its Senior Vice
Presidents and its Treasurer; said The Chase Manhattan Bank has caused this
Supplemental Indenture to be executed on its behalf as Trustee under the
Indenture by one of its Senior Trust Officers and its corporate seal to be
hereto affixed and said seal and this Supplemental Indenture to be attested by
one of its Trust Officers; and said Xxxxx X. Xxxxxx, as Individual Trustee under
the Indenture, has executed this Supplemental Indenture under seal; all as of
March 31, 1999.
NATIONAL STEEL CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
By: /s/ Xxxxxxx X. XxXxxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title:Treasurer
88
[CORPORATE SEAL]
The Chase Manhattan Bank, as Trustee
By: /s/ X. X'Xxxxx
---------------------------------
Name: X. X'XXXXX
Title: Vice President
Attest:
/s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: XXXXXXX XXXXXXXXX
Title: TRUST OFFICER
Signed, sealed and delivered by
The Chase Manhattan Bank
in the presence of:
/s/ Xxxx X. Xxxxxx
------------------------------
XXXX X. XXXXXX
ADMINISTRATOR
/s/ Xxxxxxx X Xxxxx
------------------------------
As Witnesses
XXXXXXX X. XXXXX
ADMINISTRATOR
/s/ Xxxxx X. Xxxxxx
---------------------------------
XXXXX X. XXXXXX
As Individual Trustee
Signed, sealed and delivered by
Xxxxx X. Xxxxxx
in the presence of:
/s/ Xxxx X. Xxxxxx
------------------------------
XXXX X. XXXXXX
ADMINISTRATOR
/s/ Xxxxxxx X. Xxxxx
------------------------------
As Witnesses
XXXXXXX X. XXXXX
ADMINISTRATOR
89
STATE OF Indiana )
)ss:
COUNTY OF St. Xxxxxx )
I, Xxxxxx X. Starzyaski, the undersigned officer, a notary public duly
qualified, commissioned, sworn and acting in and for said County in said State,
hereby certify, that on this 29th day of March, 1999:
MICHIGAN
STATE OF _______________ )
ss.:
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this 31 day of March,
1999 by Xxxxx X. Xxxx of National Steel Corporation, a Delaware corporation, on
behalf of the corporation.
[Notary Seal]
INDIANA
STATE OF _______________ )
ss.:
COUNTY OF ______________ )
Before me, a Notary Public, this 31 day of March, 1999, personally appeared
National Steel Corporation, a Delaware corporation, by Xxxxx X. Xxxx, Senior
Vice President and Chief Financial Officer, and acknowledged the execution of
the annexed instrument.
[Notary Seal]
WISCONSIN
STATE OF _______________ )
ss.:
COUNTY OF ______________ )
This instrument was acknowledged before me on March 31, 1999, by Xxxxx X.
Xxxx as Senior Vice President and Chief Financial Officer of National Steel
Corporation, a Delaware corporation.
[Notary Seal]
ILLINOIS
STATE OF _______________ )
ss.:
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this 31 day of March,
1999 by Xxxxx X. Xxxx, Senior Vice President and Chief Financial Officer of
National Steel Corporation, a Delaware corporation, on behalf of the
corporation.
[SEAL]
MINNESOTA
STATE OF ____________ )
ss.:
COUNTY OF ___________ )
This instrument was acknowledged before me on March 31, 1999 by Xxxxx X.
Xxxx as Senior Vice President and Chief Financial Officer of National Steel
Corporation, a Delaware corporation.
[Notary Seal]
In WITNESS WHEREOF I have hereunto set my hand and official seal of office
the day and year first above written.
/s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Notary Public
[Notary Seal] Xxxxxx X. Xxxxxxxxxx
-------------------------------
Notary Public, State of Indiana
No.____________________________
Qualified in St. Xxxxxx County
Commission Expires Jan. 28, 2000
My County of Residence: St. Xxxxxx
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
I, Xxxx Xxxxxx Xxxxxx, the undersigned officer, a notary public duly
qualified, commissioned, sworn and acting in and for said County in said State,
hereby certify, that on this 31st day of March, 1999:
MICHIGAN
STATE OF ____________ )
ss.:
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this 31st day of March,
1999 by Xxxxxxx X. XxXxxxxxx of National Steel Corporation, a Delaware
corporation, on behalf of the corporation.
[Notary Seal]
INDIANA
STATE OF ____________ )
ss.:
COUNTY OF __________ )
Before me, a Notary Public, this 31st day of March, 1999, personally
appeared National Steel Corporation, a Delaware corporation, by Xxxxxxx X.
XxXxxxxxx, Treasurer, and acknowledged the execution of the annexed instrument.
[Notary Seal]
WISCONSIN
STATE OF ______________ )
ss.:
COUNTY OF ____________ )
This instrument was acknowledged before me on March 31, 1999, by Xxxxxxx X.
XxXxxxxxx as Treasurer of National Steel Corporation, a Delaware corporation.
[Notary Seal]
ILLINOIS
STATE OF __________ )
ss.:
COUNTY OF _________ )
This foregoing instrument was acknowledged before me this 31st day of
March, 1999 by Xxxxxxx X. XxXxxxxxx, Treasurer of National Steel Corporation, a
Delaware corporation, on behalf of the corporation.
[SEAL]
MINNESOTA
STATE OF __________ )
ss.:
COUNTY OF _________ )
This instrument was acknowledged before me on March 31, 1999 by Xxxxxxx X.
XxXxxxxxx as Treasurer of National Steel Corporation, a Delaware corporation.
[Notary Seal]
IN WITNESS WHEREOF I have hereunto set my hand and official seal of office
the day and year first above written.
/s/ Xxxx Xxxxxx Xxxxxx
----------------------
Notary Public
[Notary Seal] XXXX XXXXXX XXXXXX
NOTARY PUBLIC, State of New York
No. 01 FL6013568
Qualified in Kings County
Commission Expires Sept. 01, 0000
XXXXX XX XXX XXXX )
)ss:
COUNTY OF NEW YORK )
I, _______________, the undersigned officer, a notary public duly
qualified, commissioned, sworn and acting in and for said County in said State,
hereby certify, that on this 31th day of March, 1999:
MICHIGAN
STATE OF ___________ )
ss:
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this 31 day of March,
1999 by X. X' Xxxxx of The Chase Manhatten Bank, a New York corporation, on
behalf of the corporation.
[Notary Seal]
INDIANA
STATE OF ___________ )
)ss:
COUNTY OF __________ )
Before me, a Notary Public, this 31 day of March, 1999, personally appeared
The Chase Manhatten Bank, a New york corporation, by L. O Brien, Vice President,
and acknowledged the execution of the annexed instrument.
[Notary Seal]
WISCONSIN
STATE OF __________ )
ss.:
COUNTY OF _________ )
This instrument was acknowledged before me on March 31, 1999, by X. X'Xxxxx
as Vice President of The Chase Manhattan Bank, a New York corporation.
[Notary Seal]
ILLINOIS
STATE OF ___________ )
ss.:
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this 31 day of March,
1999 by X. X'Xxxxx, Vice President of The Chase Manhattan Bank, a New York
corporation, on behalf of the corporation.
[SEAL]
MINNESOTA
STATE OF ___________ )
ss.:
COUNTY OF __________ )
This instrument was acknowledged before me on March 31, 1999 by X. X'Xxxxx
as Vice President of The Chase Manhattan Bank, a New York corporation.
[Notary Seal]
IN WITNESS WHEREOF I have hereunto set my hand and official seal of office
the day and year first above written.
/s/ Xxxxx Xxxxx
--------------------------
Notary Public
[Notary Seal] XXXXX XXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Kings County
Certificate Filed in New York County
Commission Expires December 31, 0000
XXXXX XX XXX XXXX ______________ )
) ss:
COUNTY OF NEW YORK _____________ )
I, XXXXX XXXXX, the undersigned officer, a notary public duly qualified,
commissioned, sworn and acting in and for said County in said State, hereby
certify, that on this 31th day of March, 1999:
MICHIGAN
STATE OF _____________ )
ss.:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this 31 day of March,
1999 by Xxxxx X. Xxxxxx.
[Notary Seal]
INDIANA
STATE OF _____________ )
ss.:
COUNTY OF ____________ )
Before me, a Notary Public, this 31 day of March, 1999, Xxxxx X. Xxxxxx,
acknowledged the execution of the annexed instrument.
[Notary Seal]
WISCONSIN
STATE OF ____________ )
ss.:
COUNTY OF ___________ )
This instrument was acknowledged before me on March 31, 1999 by Xxxxx X.
Xxxxxx.
[Notary Seal]
ILLINOIS
STATE OF __________ )
ss.:
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this 31 day of March,
1999 by Xxxxx X. Xxxxxx.
[Notary Seal]
MINNESOTA
STATE OF___________ )
ss.:
COUNTY OF__________ )
This instrument was acknowledged before me on March 31, 1999 by Xxxxx X.
Xxxxxx.
[Notary Seal]
IN WITNESS WHEREOF I have hereunto set my hand and official seal of office
the day and year first above written.
/s/ Xxxxx Xxxxx
----------------------------
Notary Public
[Notary Seal]
