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WCI STEEL, INC.,
as Issuer
and
FLEET NATIONAL BANK,
as Trustee
INDENTURE
Dated as of November 27, 1996
$300,000,000
10% Senior Secured Notes
due 2004, Series A
and
10% Senior Secured Notes
due 2004, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1)............................................... 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 7.10
(b)................................................. 7.08; 7.10; 12.02
(c)................................................. N.A.
311(a).................................................. 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312(a).................................................. 2.05
(b)................................................. 12.03
(c)................................................. 12.03
313(a).................................................. 7.06
(b)(1).............................................. N.A.
(b)(2).............................................. 7.06
(c)................................................. 7.06; 12.02
(d)................................................. 7.06
314(a).................................................. 4.07; 4.09; 12.02
(b)................................................. 10.02
(c)(1).............................................. 12.04
(c)(2).............................................. 12.04
(c)(3).............................................. N.A.
(d)................................................. 10.03
(e)................................................. 12.05
(f)................................................. N.A
315(a).................................................. 7.01(b)
(b)................................................. 7.05; 12.02
(c)................................................. 7.01(a)
(d)................................................. 7.01(c)
(e)................................................. 6.11
316(a)(last sentence)................................... 2.09
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N.A.
(b)................................................. 6.07
317(a)(1)............................................... 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.04
318(a).................................................. 12.01
(c)................................................. 12.01
----------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions........................................... 1
Section 1.02 Incorporation by Reference of TIA..................... 24
Section 1.03 Rules of Construction................................. 25
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating....................................... 26
Section 2.02 Execution and Authentication.......................... 29
Section 2.03 Registrar and Paying Agent............................ 30
Section 2.04 Paying Agent To Hold Assets in Trust.................. 31
Section 2.05 Securityholder Lists.................................. 31
Section 2.06 Transfer and Exchange................................. 31
Section 2.07 Replacement Securities................................ 39
Section 2.08 Outstanding Securities................................ 40
Section 2.09 Treasury Securities................................... 40
Section 2.10 Temporary Securities.................................. 40
Section 2.11 Cancellation.......................................... 41
Section 2.12 Defaulted Interest.................................... 41
Section 2.13 CUSIP Number.......................................... 41
Section 2.14 Designation........................................... 42
ARTICLE THREE
REDEMPTION
Section 3.01 Optional Redemption................................... 42
Section 3.02 Notices to Trustee.................................... 43
Section 3.03 Selection of Securities To Be Redeemed................ 43
Section 3.04 Notice of Redemption.................................. 43
Section 3.05 Effect of Notice of Redemption........................ 44
Section 3.06 Deposit of Redemption Price........................... 45
Section 3.07 Securities Redeemed in Part........................... 45
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ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities................................. 45
Section 4.02 Maintenance of Office or Agency....................... 46
Section 4.03 Limitation on Restricted Payments..................... 46
Section 4.04 Corporate Existence................................... 49
Section 4.05 Payment of Taxes and Other Claims..................... 49
Section 4.06 Maintenance of Properties and Insurance............... 50
Section 4.07 Compliance Certificate; Notice of
Default............................................. 51
Section 4.08 Compliance with Laws.................................. 51
Section 4.09 SEC Reports and Other Information..................... 52
Section 4.10 Waiver of Stay, Extension or Usury
Laws................................................ 53
Section 4.11 Limitation on Transactions with
Affiliates.......................................... 53
Section 4.12 Limitation on Incurrence of Additional
Indebtedness........................................ 54
Section 4.13 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries................. 54
Section 4.14 Limitation on Liens................................... 55
Section 4.15 Change of Control..................................... 56
Section 4.16 Limitation on Asset Sales............................. 58
Section 4.17 Limitation on Sale/leaseback
Transactions........................................ 61
Section 4.18 Limitation on Preferred Stock of
Subsidiaries........................................ 62
Section 4.19 Future Guarantees..................................... 62
Section 4.20 Impairment of Security Interest....................... 62
Section 4.21 Amendment to Collateral Documents..................... 63
Section 4.22 Inspection and Confidentiality........................ 63
Section 4.23 Release of Released Real Property..................... 63
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, Etc........................... 64
Section 5.02 Successor Corporation Substituted..................... 66
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default..................................... 66
Section 6.02 Acceleration.......................................... 68
Section 6.03 Other Remedies........................................ 69
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Section 6.04 Waiver of Past Defaults............................... 70
Section 6.05 Control by Majority................................... 70
Section 6.06 Limitation on Suits................................... 70
Section 6.07 Rights of Holders To Receive Payment.................. 71
Section 6.08 Collection Suit by Trustee............................ 71
Section 6.09 Trustee May File Proofs of Claim...................... 71
Section 6.10 Priorities............................................ 72
Section 6.11 Undertaking for Costs................................. 73
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee..................................... 73
Section 7.02 Rights of Trustee..................................... 74
Section 7.03 Individual Rights of Trustee.......................... 75
Section 7.04 Trustee's Disclaimer.................................. 76
Section 7.05 Notice of Default..................................... 76
Section 7.06 Reports by Trustee to Holders......................... 76
Section 7.07 Compensation and Indemnity............................ 77
Section 7.08 Replacement of Trustee................................ 78
Section 7.09 Successor Trustee by Merger, Etc...................... 79
Section 7.10 Eligibility; Disqualification......................... 79
Section 7.11 Preferential Collection of Claims
Against Company..................................... 79
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Termination of Company's Obligations.................. 80
Section 8.02 Legal Defeasance and Covenant
Defeasance.......................................... 81
Section 8.03 Application of Trust Money............................ 85
Section 8.04 Repayment to Company.................................. 85
Section 8.05 Reinstatement......................................... 86
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders............................ 86
Section 9.02 With Consent of Holders............................... 87
Section 9.03 Compliance with TIA................................... 89
Section 9.04 Revocation and Effect of Consents..................... 89
Section 9.05 Notation on or Exchange of Securities................. 89
Section 9.06 Trustee To Sign Amendments, Etc....................... 90
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ARTICLE TEN
COLLATERAL DOCUMENTS
Section 10.01 Collateral and Collateral Documents................... 90
Section 10.02 Recording; Priority; Opinions, Etc.................... 91
Section 10.03 Release of Collateral................................. 93
Section 10.04 Disposition of Collateral Without
Release............................................. 96
Section 10.05 Eminent Domain and Other Governmental
Takings............................................. 97
Section 10.06 Trust Indenture Act Requirements...................... 99
Section 10.07 Suits To Protect Collateral .......................... 99
Section 10.08 Purchaser Protected................................... 100
Section 10.09 Powers Exercisable by Receiver or
Trustee............................................. 100
Section 10.10 Determinations Relating to Collateral ................ 100
Section 10.11 Form and Sufficiency of Release....................... 101
Section 10.12 Possession and Use of Collateral...................... 101
Section 10.13 Disposition of Obligations Received................... 101
Section 10.14 Release upon Termination of the
Company's Obligations............................... 102
ARTICLE ELEVEN
APPLICATION OF TRUST MONEYS
Section 11.01 "Trust Moneys" Defined................................ 102
Section 11.02 Withdrawals of Insurance Proceeds
and Condemnation Awards............................. 103
Section 11.03 Withdrawal of Trust Moneys on Basis
of Retirement of Securities......................... 107
Section 11.04 Withdrawal of Trust Moneys for
Reinvestment........................................ 109
Section 11.05 Powers Exercisable Notwithstanding
Default or Event of Default......................... 111
Section 11.06 Powers Exercisable by Trustee
or Receiver......................................... 111
Section 11.07 Investment of Trust Moneys............................ 112
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01 TIA Controls.......................................... 112
Section 12.02 Notices............................................... 112
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Section 12.03 Communications by Holders with
Other Holders....................................... 113
Section 12.04 Certificate and Opinion as to
Conditions Precedent................................ 113
Section 12.05 Statements Required in Certificate
or Opinion.......................................... 114
Section 12.06 Rules by Trustee, Paying Agent,
Registrar........................................... 114
Section 12.07 Legal Holidays........................................ 114
Section 12.08 Governing Law......................................... 114
Section 12.09 No Adverse Interpretation of Other
Agreements.......................................... 115
Section 12.10 No Recourse Against Others............................ 115
Section 12.11 Successors............................................ 115
Section 12.12 Duplicate Originals................................... 115
Section 12.13 Severability.......................................... 115
Signatures.............................................................. 117
Exhibit A - Form of Series A Note
Exhibit B - Form of Series B Note
Exhibit C - Form of Legend for Book-Entry Securities
Exhibit D - Form of Transferee Letter of Representation
Exhibit E - Form of certification to be given by the holders of
beneficial interest in a temporary Regulation S
global security to Euroclear or Cedel
Exhibit F - Form of certification to be given by Euroclear oper-
ator or Cedel Bank, Societe Anonyme
Exhibit G - Form of certification to be given by transferee of
beneficial interest in a temporary Regulation S
global security
Exhibit H - Form of certification for transfer or exchange of
restricted global security to temporary Regulation S global
security
Exhibit I - Form of certification for transfer or exchange of
restricted global security to permanent Regulation S global
security
Exhibit J - Form of certification for transfer or exchange of temporary
Regulation S global security or permanent Regulation S global
security to restricted global security
Exhibit K-1 - Form of certification for transfer or exchange of
non-global restricted security to restricted global security
Exhibit K-2 - Form of certification for transfer or exchange of
non-global restricted security to permanent Regulation S global
security or temporary Regulation S global security
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Exhibit L-1 - Form of certification for transfer or exchange of
non-global permanent Regulation S security to restricted global
security
Exhibit L-2 - Form of certification for transfer or exchange of
non-global permanent Regulation S security to permanent
Regulation S global security
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
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INDENTURE, dated as of November 27, 1996, by and between WCI STEEL,
INC., an Ohio corporation (the "Company"), as issuer, and FLEET NATIONAL BANK, a
national banking association, as Trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 10%
Senior Secured Notes due 2004, Series A, and 10% Senior Secured Notes due 2004,
Series B, without
distinction as to Series:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a person or any of its
Subsidiaries existing at the time such person becomes a Subsidiary of the
Company or assumed in connection with the acquisition of assets from such
person, including, without limitation, Indebtedness incurred by such person in
connection with, or in anticipation or contemplation of, such person becoming a
Subsidiary of the Company or such acquisition.
"Affiliate" of any specified person means any other person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative of the
foregoing. For purposes of Section 4.11, the term "Affiliate" shall include any
person who, as a result of any transaction described therein, would become an
Affiliate.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar or Paying Agent.
"Agent Member" means any member of, or participant in, the
Depository.
"Applicable Procedures" has the meaning provided in Section 2.06(g).
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"Appraiser" means a Person who in the course of its business
appraises property and who is a member in good standing of the American
Institute of Real Estate Appraisers, recognized and licensed to do business in
the jurisdiction where the applicable Real Property is located.
"Asset Acquisition" means (i) an Investment by the Company or any
Subsidiary of the Company in any other person pursuant to which such person
shall become a Subsidiary of the Company or any Subsidiary of the Company or
shall be merged with the Company or any Subsidiary of the Company or (ii) the
acquisition by the Company or any Subsidiary of the Company of the assets of any
person which constitute all or substantially all of the assets of such person or
any division or line of business of such person.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease, assignment or other transfer for value by the
Company or any of its Subsidiaries (including, without limitation, any
Sale/leaseback (other than a Sale/leaseback of an asset constituting
Collateral)) to any person, in one transaction or a series of related
transactions, of (i) any Capital Stock of any Subsidiary of the Company; (ii)
all or substantially all of the properties and assets of any division or line of
business of the Company or any Subsidiary of the Company; or (iii) any other
properties or assets of the Company or any Subsidiary of the Company other than
in the ordinary course of business. For the purposes of this definition, the
term "Asset Sale" shall not include any sale, issuance, conveyance, transfer,
lease or other disposition of properties or assets that is consummated in
accordance with the provisions of Article Five.
"Asset Sale Offer" has the meaning provided in Section 4.16.
"Asset Sale Offer Payment Date" means, with respect to any Available
Amount from an Asset Sale, the earlier of (x) the 180th day following receipt of
such Available Amount or (y) such earlier date on which an Asset Sale Offer
shall expire.
"Asset Sale Release Notice" has the meaning provided in Section
10.03.
"Available Amount" has the meaning provided in Section 4.16.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
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"Board of Directors" means, with respect to any person, the Board of
Directors of such person or any committee of the Board of Directors of such
person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such person.
"Board Resolution" means with respect to any person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such person
to have been duly adopted by the Board of Directors of such person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" means a Security represented by a Global
Security and registered in the name of the nominee of the Depository.
"Business Day" means any day that is not a Legal Holiday.
"Capital Expenditures" shall mean payments for any assets, or
improvements, replacements, substitutions or additions thereto, that have a
useful life of more than one year and which, in accordance with GAAP
consistently applied, are required to be capitalized (as opposed to expensed in
the period in which the payment occurred).
"Capital Lease," as applied to any person, means any lease of (or
any agreement conveying the right to use) any property (whether real, personal
or mixed) by such person as lessee which, in conformity with GAAP, is required
to be accounted for as a capital lease on the balance sheet of such person.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated) of
such person's capital stock, whether outstanding at the Issue Date or issued
after the Issue Date, and any and all rights, warrants or options exchangeable
for or convertible into such capital stock (but excluding any debt security that
is exchangeable for or convertible into such capital stock).
"Capitalized Lease Obligation" means, as to any person, the
obligations of such person under a Capital Lease and, for purposes of this
Indenture, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United
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States Government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within two years from the
date of acquisition thereof; (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within two years from the
date of acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either Standard & Poor's Corporation or
Xxxxx'x Investors Service, Inc.; (iii) commercial paper maturing no more than
two years from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from Standard & Poor's Corporation or at least
P-1 from Xxxxx'x Investors Service, Inc.; (iv) certificates of deposit or
bankers' acceptances maturing within two years from the date of acquisition
thereof issued by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $500,000,000; (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above. Notwithstanding the foregoing,
for purposes of clause (i) of the definition of "Permitted Investment," 20% of
the Cash Equivalents may include securities having a rating of at least BBB by
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. and Baa by Xxxxx'x Investors Service, Inc.
"CEDEL" means Cedel Bank, Societe Anonyme (or any successor
securities clearing agency).
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company or Renco to any person or group of related persons for
purposes of Section 13(d) of the Exchange Act (a "Group") (other than a
Permitted Holder or a Group controlled by a Permitted Holder), together with any
Affiliates thereof (whether or not otherwise in compliance with the provisions
of this Indenture); (ii) the approval by the holders of Capital Stock of the
Company or Renco, as the case may be, of any plan or proposal for the
liquidation or dissolution of the Company or Renco, as the case may be (whether
or not otherwise in compliance with the provisions of this Indenture); (iii) the
acquisition in one or more transactions of "beneficial ownership"
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(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, except that
a person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time) by any person, entity or Group
(other than a Permitted Holder or a Group controlled by any Permitted Holder) of
any Capital Stock of the Company or Renco such that, as a result of such
acquisition, such person, entity or Group either (A) beneficially owns (within
the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, more than 50% of the Company's or Renco's then outstanding voting
securities entitled to vote on a regular basis in an election for a majority of
the Board of Directors of the Company or Renco or (B) otherwise has the ability
to elect, directly or indirectly, a majority of the members of the Company's or
Renco's Board of Directors; or (iv) the shareholders of Renco as of the Issue
Date and the Permitted Holders shall cease to own at least 50% of the equity of
Renco owned by such shareholders on the Issue Date.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section
4.15.
"Collateral" means, collectively, all of the property and assets
(including, without limitation, Trust Moneys) that are from time to time subject
to, or purported to be subject to, the Lien of this Indenture or the Collateral
Documents.
"Collateral Account" has the meaning provided in Section 11.01.
"Collateral Agent" shall mean Fleet National Bank, a national
banking association, in its capacity as collateral agent under the Collateral
Documents, and any successor thereto in such capacity.
"Collateral Documents" means, collectively, the Security Agreement,
the Mortgage, the Intercreditor Agreements and all other instruments or
documents entered into or delivered in connection with any of the foregoing, as
such agreements, instruments or documents may be amended, amended and restated,
supplemented or otherwise modified from time to time.
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"Collateral Proceeds" has the meaning provided in Section 4.16.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Company Order" means a written order or request signed in the name
of the Company by its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated EBITDA" means, with respect to any person, for any
period, the sum (without duplication) of (i) Consolidated Net Income, (ii) to
the extent Consolidated Net Income has been reduced thereby, all income taxes of
such person and its Subsidiaries paid or accrued in accordance with GAAP for
such period (other than income taxes attributable to extraordinary, unusual or
non-recurring gains or losses), Consolidated Interest Expense (net of any
interest income), amortization expense (including amortization of deferred
financing costs) and depreciation expense and (iii) other non-cash items other
than non-cash interest reducing Consolidated Net Income (including, without
limitation, any non-cash charges in respect of post-employment benefits for
health care, life insurance and long-term disability benefits required in
accordance with GAAP) less other non-cash items increasing Consolidated Net
Income, all as determined on a consolidated basis for such person and its
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any person, the ratio of Consolidated EBITDA of such person during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such person for the Four Quarter Period. For purposes of this definition, if the
Transaction Date occurs prior to the date on which four full fiscal quarters
have elapsed subsequent to the Issue Date and financial statements with respect
thereto are available, "Consolidated EBITDA" and "Consolidated Fixed Charges"
shall be calculated, in the case of the Company, after giving effect on a pro
forma basis to the issuance of the Securities and the application of the net
proceeds therefrom as if the Securities were issued on the first day of the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma
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basis for the period of such calculation to (i) the incurrence of any
Indebtedness of such person or any of its Subsidiaries giving rise to the need
to make such calculation and any incurrence of other Indebtedness at any time on
or after the first day of the Four Quarter Period and on or prior to the
Transaction Date (the "Reference Period"), as if such incurrence occurred on the
first day of the Reference Period and (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need to
make such calculation as a result of such person or one of its Subsidiaries
(including any person who becomes a Subsidiary as a result of the Asset
Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness) occurring during the Reference Period, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness or Acquired Indebtedness) occurred on the first day of the
Reference Period. If such person or any of its Subsidiaries directly or
indirectly guarantees Indebtedness of a third person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
person or any Subsidiary of such person had directly incurred or otherwise
assumed such guaranteed Indebtedness. Furthermore, in calculating "Consolidated
Fixed Charges" for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1) interest on
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Reference Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Rate Protection Obligations, shall be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements. In calculating the Consolidated Fixed Charge
Coverage Ratio, and giving pro forma effect to any incurrence of Indebtedness
during the Reference Period, pro forma effect shall be given to the use of the
proceeds thereof to permanently repay or retire Indebtedness.
"Consolidated Fixed Charges" means, with respect to any person for
any period, the sum of, without duplication, the amounts for such period, taken
as a single accounting period, of (i) Consolidated Interest Expense (net of any
interest income) less
-8-
non-cash amortization of deferred financing costs and (ii) the product of (x)
the amount of all dividends declared, paid or accrued on Preferred Stock of such
person during such period times (y) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective
consolidated Federal, state, local and foreign tax rate (expressed as a decimal
number between 1 and 0) of such person during such period (as reflected in the
audited consolidated financial statements of such person for the most recently
completed fiscal year).
"Consolidated Interest Expense" means, with respect to any person
for any period, without duplication, the sum of (i) the interest expense of such
person and its Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP consistently applied, including, without
limitation, (a) any amortization of debt discount, (b) the net cost under
Interest Rate Protection Obligations (including any amortization of discounts),
(c) the interest portion of any deferred payment obligation and (d) all accrued
interest, and (ii) the interest component of Capitalized Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such person and its
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP consistently applied.
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Subsidiaries, on a
consolidated basis for such period determined in accordance with GAAP; provided
that (i) the net income of any person in which such person or any Subsidiary of
such person has an ownership interest with a third party shall be included only
to the extent of the amount that has actually been received by such person or
its wholly-owned Subsidiaries in the form of dividends or other distributions
during such period (subject to, in the case of any dividend or distribution
received by a wholly-owned Subsidiary of such person, the restrictions set forth
in clause (ii) below) and (ii) the net income of any Subsidiary of such person
that is subject to any restriction or limitation on the payment of dividends or
the making of other distributions shall be excluded to the extent of such
restriction or limitation; provided, further, that there shall be excluded (a)
the net income (or loss) of any person (acquired in a pooling of interests
transaction) accrued prior to the date it becomes a Subsidiary of such person or
is merged into or consolidated with such person or any Subsidiary of such
person, (b) any net gain (or loss) resulting from an Asset Sale by such person
or any of its Subsidiaries, (c) any extraordinary, unusual or nonrecurring gains
or losses (and related tax effects) in accordance with GAAP and (d)
-9-
any compensation-related expenses arising as a result of the Transactions.
"Consolidated Net Worth" means, with respect to any person at any
date, the sum of (i) the consolidated stockholders' equity of such person less
the amount of such stockholders' equity attributable to Disqualified Capital
Stock of such person and its Subsidiaries, as determined on a consolidated basis
in accordance with GAAP consistently applied, and (ii) the amount of any
Preferred Stock of such person not included in the stockholders' equity of such
person in accordance with GAAP, which Preferred Stock does not constitute
Disqualified Capital Stock.
"covenant defeasance" has the meaning provided in Section 8.01.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event or condition the occurrence of which is,
or would with the passage of time or the giving of notice or both become, an
Event of Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Book-Entry Securities, The Depository Trust Company or
another person designated as Depository by the Company, which must be a clearing
agency registered under the Exchange Act.
"Depository Securities Certification" has the meaning provided in
Section 2.01.
"Destruction" shall have the meaning assigned to such term in the
Mortgage.
"Disqualified Capital Stock" means any class of Capital Stock which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Maturity Date.
"Dividend" has the meaning provided in clause (6) of the second
paragraph of Section 4.03.
-10-
"Environmental Law" has the meaning assigned to such term in the
Mortgage.
"Equity Offering" means an offering of Qualified Capital Stock of
the Company (other than to any Subsidiary of the Company).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer" means the registration by the Company under the
Securities Act of all the Series B Notes pursuant to a registration statement
under which the Company offers each Holder of Series A Notes the opportunity to
exchange all Series A Notes held by such Holder for Series B Notes in an
aggregate principal amount equal to the aggregate principal amount of Series A
Notes held by such Holder, all in accordance with the terms and conditions of
the Registration Rights Agreement.
"Excluded Asset" means any structure, equipment, facility,
improvement, apparatus or other property acquired or constructed by the Company
after the Issue Date which is (i) located at the Mortgaged Property, (ii) not
necessary for the proper and efficient operation of the Mortgaged Property or
for the compliance by the Mortgaged Property with any applicable law, code or
ordinance, including, without limitation, any Environmental Law and (iii) not an
integral part (or the replacement of an integral part) of the Company's
operations as conducted at the Mortgaged Property as of the Issue Date.
"Existing Indenture" means the Indenture, dated as of December 14,
1993, by and among Renco Steel, Inc. (which was subsequently merged into the
Company), the Company and Shawmut Bank Connecticut, National Association (now
known as Fleet National Bank), pursuant to which the Existing Securities were
issued.
"Existing Securities" means the Company's 10-1/2% Senior Notes Due
March 1, 2002 issued, authenticated and delivered under
-11-
the Existing Indenture, as amended or supplemented from time to time pursuant to
the terms thereof.
"Fair Market Value" or "fair value" means, with respect to any
asset, the price which could be negotiated in an arm's-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the transaction. Fair
Market Value of any asset of the Company and its Subsidiaries shall be
determined by the Board of Directors of the Company acting in good faith and
shall be evidenced by a Board Resolution thereof delivered to the Trustee;
provided, however, that with respect to any Asset Sale which involves property
or assets which could reasonably be expected to have a value in excess of
$5,000,000, the Fair Market Value or fair value of any such asset or assets (i)
shall be determined by an Independent Financial Advisor and (ii) any
determination of Fair Market Value or fair value with respect to any parcel of
Real Property constituting a part of, or proposed to be made a part of, the
Collateral shall be made by an Appraiser.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Global Security" means a Security evidencing all or a part of the
Securities to be issued as Book-Entry Securities, issued to the Depository in
accordance with Section 2.02 and bearing the legend or legends prescribed in
Exhibit C to this Indenture.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Holdings" means WCI Steel Holdings, Inc., a Delaware corporation.
"Indebtedness" means with respect to any person, without
duplication, (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such person,
(iv) all obligations of such person issued or assumed as the deferred purchase
price of property or services, all conditional sale obligations and all
obligations
-12-
under any title retention agreement (but excluding trade accounts payable,
accrued expenses and deferred taxes arising in the ordinary course of business),
(v) all obligations of such person for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction entered into
in the ordinary course of business, (vi) all obligations of any other person of
the type referred to in clauses (i) through (v) which are secured by any Lien on
any property or asset of such first person and the amount of such obligation
shall be the lesser of the value of such property or asset or the amount of the
obligation so secured, (vii) all guarantees of Indebtedness by such person,
(viii) Disqualified Capital Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends,
(ix) all obligations under Interest Rate Protection Obligations of such person
and (x) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i) through (ix)
above. For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Disqualified
Capital Stock, such Fair Market Value to be determined in good faith by the
Board of Directors of the person issuing such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable and good faith judgment of the Board of Directors of the Company,
qualified to perform the task for which such firm has been engaged and
disinterested and independent with respect to the Company and its Affiliates.
"Initial Purchaser" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of November 27, 1996, by and between the Collateral Agent and Congress
Financial Corporation, as agent under the WCI Revolving Credit Facility, as
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof or any replacement thereof.
-13-
"Intercreditor Agreements" means, collectively, the Intercreditor
Agreement and the VEBA Intercreditor Agreement.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Securities.
"Interest Rate Protection Obligations" means the obligations of any
person, pursuant to any arrangement with any other person, whereby, directly or
indirectly, such person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Investment" means, with respect to any person, any direct or
indirect advance, loan, guarantee or other extension of credit or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others or
otherwise), or any purchase or acquisition by such person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any other person. Investments shall exclude extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices. For the
purposes of Section 4.03, the amount of any Investment shall be the original
cost of such Investment plus the cost of all additional Investments by the
Company or any of its Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment, reduced by the payment of dividends or distributions in connection
with such Investment or any other amounts received in respect of such
Investment.
"Issue Date" means the date of first issuance of the Securities
under this Indenture.
"legal defeasance" has the meaning provided in Section 8.02.
"Legal Holiday" has the meaning provided in Section 12.07.
-14-
"Lien" means (x) any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind including, without limitation, any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell and any filing of or agreement to
file a financing statement as debtor under the Uniform Commercial Code or any
similar statute and (y) any agreement to enter into any of the foregoing.
"Management Consultant Agreement" means the management agreement
effective October 1, 1992 between Renco and the Company.
"Maturity Date" means December 1, 2004.
"Merger" means the merger of Holdings with and into the Company on,
or as soon as reasonably practicable after, the Issue Date (provided that
Holdings has no Indebtedness outstanding other than Indebtedness owing to the
Company not to exceed $60 million).
"Mortgage" means the mortgage dated as of the date hereof between
the Company and the Collateral Agent, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
"Mortgaged Property" has the meaning assigned to such term in the
Mortgage.
"Net Award" shall have the meaning assigned to such term in the
Mortgage and shall include any amounts received in respect of personal property
pursuant to the Security Agreement or otherwise.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Subsidiary of the Company) net of (i)
brokerage commissions and other reasonable fees and expenses (including fees and
expenses of legal counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a direct result of such Asset Sale and
(iii) appropriate amounts to be provided by the Company or any Subsidiary of the
Company, as the case may be, as a reserve required in accordance with GAAP
consistently applied against any liabilities associated with such Asset Sale and
retained by the Company or any Subsidiary of the Company, as the case may be,
after such Asset Sale, including, without limitation, pension and other
postemployment benefit
-15-
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee.
"Net Proceeds" shall have the meaning assigned to such term in the
Mortgage and shall include any amounts received in respect of personal property
pursuant to the Security Agreement or otherwise.
"Non-Collateral Proceeds" has the meaning provided in Section 4.16.
"Obligations" means any principal, interest, penalties, fees and
other liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Controller, the Treasurer, or the Secretary of such
person.
"Officers' Certificate" means, with respect to any person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such person and otherwise complying with
the requirements of Sections 12.04 and 12.05.
"Operating Lease" means, as applied to any person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that person is the lessor.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee complying with the requirements of Sections 12.04
and 12.05. Unless otherwise required by the TIA, the legal counsel may be an
employee of or counsel to the Company.
"Owner Securities Certification" has the meaning provided in Section
2.01.
"Paying Agent" has the meaning provided in Section 2.03.
"Permanent Regulation S Global Security" has the meaning
provided in Section 2.01.
-16-
"Permitted Holders" means Xxx Xxxx Xxxxxxx and his Affiliates,
estate, heirs and legatees, and the legal representatives of any of the
foregoing, including, without limitation, the trustee of any trust of which one
or more of the foregoing are the sole beneficiaries.
"Permitted Indebtedness" means (i) any Indebtedness of the Company
and its Subsidiaries under the WCI Revolving Credit Facility in an aggregate
amount not to exceed $100 million in aggregate principal amount at any time
outstanding plus any interest, fees and expenses from time to time owed
thereunder less the amount of any Indebtedness under the WCI Revolving Credit
Facility required to be repaid and repaid with the net cash proceeds of an asset
sale pursuant to the terms of the WCI Revolving Credit Facility and such
repayment effects a permanent reduction in the commitment thereunder; provided
that at no time shall the sum of the aggregate principal amount outstanding
under the WCI Revolving Credit Facility pursuant to this clause (i) and the
amount outstanding under clause (iii) below exceed $100 million in the
aggregate, (ii) the Securities and any Existing Securities outstanding on the
Issue Date, (iii) all obligations of the Company and its Subsidiaries for the
reimbursement of any obligor on any letter of credit not to exceed $20 million
at any time outstanding; provided that at no time shall the sum of the amount
outstanding under this clause (iii) and the aggregate principal amount
outstanding under the WCI Revolving Credit Facility pursuant to clause (i) above
exceed $100 million in the aggregate, (iv) the subordinated note of the Company
payable to LTV Steel Company, Inc. in the principal amount of approximately $1.9
million less any principal payments thereof, (v) Indebtedness of the Youngstown
Sinter Company represented by the State Economic Development Revenue Bonds (Ohio
Enterprise Bond Fund), Series 1990-2 (Youngstown Sinter Company Project) as in
effect on the Issue Date in the principal amount of approximately $1.9 million
less any principal payments thereof, (vi) Indebtedness of the Youngstown Sinter
Company represented by the Urban Development Action Grant as in effect on the
Issue Date in the principal amount of approximately $1.6 million less any
principal payments thereof, (vii) purchase money Indebtedness and any
Indebtedness incurred for Capitalized Lease Obligations not to exceed $10
million in the aggregate at any time outstanding, (viii) Interest Rate
Protection Obligations to the extent the notional principal amount of such
Interest Rate Protection Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Rate Protection Obligations relate, (ix)
additional Indebtedness not to exceed $20 million in the aggregate at any time
outstanding, (x) Indebtedness owed by the Company or any of its wholly-owned
Subsidiaries to any wholly-owned Subsidiary of the Company or any Indebtedness
owed to
-17-
the Company by a wholly-owned Subsidiary of the Company; provided that in the
case of Indebtedness owed by the Company to any wholly-owned Subsidiary of the
Company, such Indebtedness is subordinated to the Securities, (xi) any renewals,
extensions, substitutions, refundings, refinancings or replacements of any
Indebtedness described in the preceding clauses (i) and (ii) above and this
clause (xi), so long as such renewal, extension, substitution, refunding,
refinancing or replacement does not result in an increase in the aggregate
principal amount of the outstanding Indebtedness represented thereby (except if
such Indebtedness refinances Indebtedness under the WCI Revolving Credit
Facility or any other agreement providing for subsequent borrowings, does not
result in an increase in the maximum commitment under the WCI Revolving Credit
Facility or such other agreement), (xii) any guarantees of the foregoing and
(xiii) trade accounts payable to the extent they constitute Indebtedness.
"Permitted Investment" means (i) cash and Cash Equivalents, (ii) any
Investment by the Company or any of its Subsidiaries in the Company or any
wholly-owned Subsidiary of the Company, (iii) any Related Business Investment in
assets other than the type described in clause (iv) below, (iv) Related Business
Investments by the Company or any of its Subsidiaries in joint ventures,
partnerships or persons that are not wholly-owned Subsidiaries in an amount not
to exceed $25 million in the aggregate; provided that in no event shall such
Related Business Investments pursuant to this clause (iv) exceed $5 million in
any one fiscal year, (v) Investments by the Company or any Subsidiary of the
Company in another person, if as a result of such Investment (a) such other
person becomes a wholly-owned Subsidiary of the Company or (b) such other person
is merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or a wholly-owned Subsidiary of
the Company, (vi) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers, in each case
arising in the ordinary course of business, (vii) the non-cash proceeds of any
Asset Sale and (viii) loans and advances to employees of the Company and its
Subsidiaries made in the ordinary course of business.
"Permitted Liens" means (i) pledges or deposits by such person under
worker's compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (other than
for the payment of Indebtedness) or leases to which such person is a party, or
deposits to secure public statutory obligations of such person or deposits to
secure surety or appeal bonds to which such person is
-18-
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, (ii) Liens imposed by law, such as landlords', carriers',
warehousemen's and mechanics' Liens or bankers' Liens incurred in the ordinary
course of business for sums which are not yet due or are being contested in good
faith and for which adequate provision has been made, (iii) Liens for taxes not
yet subject to penalties for non-payment or which are being contested in good
faith and by appropriate proceedings, if adequate reserve, as may be required by
GAAP, shall have been made therefor, (iv) Liens in favor of issuers of surety
bonds or appeal bonds issued pursuant to the request of and for the account of
such person in the ordinary course of its business, (v) Liens to support trade
letters of credit issued in the ordinary course of business, (vi) survey
exceptions, encumbrances, easements or reservations of, or rights of others for,
rights of way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions on the use of real property,
(vii) Liens securing Indebtedness permitted under clause (vii) of the definition
of Permitted Indebtedness; provided that the Fair Market Value of the asset at
the time of the incurrence of the Indebtedness subject to the Lien shall not
exceed the principal amount of the Indebtedness secured, (viii) Liens with
respect to Acquired Indebtedness permitted to be incurred in accordance with
Section 4.12; provided that such Liens secured such Acquired Indebtedness at the
time of the incurrence of such Acquired Indebtedness by the Company and were not
incurred in connection with, or in anticipation of, the incurrence of such
Acquired Indebtedness by the Company; provided, further, that such Liens do not
extend to or cover any property or assets of the Company other than the property
or assets that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company and are no more
favorable to the lienholders than those securing the Acquired Indebtedness prior
to the incurrence of such Acquired Indebtedness by the Company, (ix) Liens
arising from judgments, decrees or attachments in circumstances not constituting
an Event of Default, (x) Liens in favor of the trustee of the VEBA Trust
existing on the Issue Date or thereafter arising pursuant to agreements in
effect on the Issue Date, (xi) Liens on assets or property (including any real
property upon which such assets or property are or will be located) securing
Indebtedness incurred to purchase or construct such assets or property, which
Indebtedness is permitted to be incurred under Section 4.12 and (xii) Liens
permitted by the Collateral Documents.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
-19-
"Plan of Liquidation" means, with respect to any person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such person to holders of
Capital Stock of such person.
"Preferred Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated) of
such person's preferred or preference stock, whether outstanding on the date
hereof or issued after the date of this Indenture, and including, without
limitation, all classes and series of preferred or preference stock of such
person.
"principal" of any Indebtedness (including the Securities) means the
principal of such Indebtedness plus the premium, if any, on such Indebtedness.
"Prior Liens" has the meaning assigned to such term in the Mortgage.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act.
"Qualified Capital Stock" means, with respect to any person, any
Capital Stock of such person that is not Disqualified Capital Stock or
convertible into or exchangeable or exercisable for Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Real Property" means any interest in any real property or any
portion thereof whether owned in fee or leased or otherwise owned.
"Real Property Release Notice" has the meaning provided in Section
10.03.
"Real Property Valuation Date" has the meaning provided in Section
10.03.
-20-
"Record Date" means the Record Dates specified in the Securities;
provided that if any such date is a Legal Holiday, the Record Date shall be the
first day immediately preceding such specified day that is not a Legal Holiday.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Securities.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement by and between the Company and the Initial Purchaser, dated as of
November 27, 1996, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Related Business Investment" means any Investment, Capital
Expenditure or other expenditure by the Company or any Subsidiary of the Company
which is related to the business of the Company and its Subsidiaries as it is
conducted on the Issue Date.
"Released Assets" has the meaning provided in Section 10.03.
"Released Real Property" means any portion of the Real Property
which constitutes Mortgaged Property upon which an Excluded Asset is or is
intended to be situated so long as (i) such Released Real Property is not (x)
necessary for the proper and efficient operation of the Mortgaged Property or
for the compliance by the Mortgaged Property with any applicable law, code or
ordinance, including, without limitation, any Environmental Law, or (y) an
integral part of the Company's operations as conducted at the Mortgaged Property
on the Issue Date and (ii) the release of such Released Real Property will not
interfere with or impair the Trustee's ability to realize the value of the
remaining Collateral.
"Released Trust Moneys" has the meaning provided in Section 11.04.
-21-
"Renco" means The Renco Group, Inc., a New York corporation, which
is the ultimate parent of the Company, or any successor thereto.
"Restricted Global Security" has the meaning provided in Section
2.01.
"Restricted Payment" has the meaning provided in Section 4.03.
"Restricted Period" has the meaning provided in Section 2.01.
"Restricted Security" has the meaning provided in Rule
144(a)(3) under the Securities Act.
"Sale/leaseback" means any lease, whether an Operating Lease or a
Capital Lease, whereby the Company or any of its Subsidiaries, directly or
indirectly, becomes or remains liable as lessee or as guarantor or other surety,
of any property (whether real or personal or mixed) whether now owned or
hereafter acquired, (i) that the Company or its Subsidiaries, as the case may
be, has sold or transferred or is to sell or transfer to any other person (other
than the Company), or (ii) that the Company or its Subsidiaries, as the case may
be, intends to use for substantially the same purpose as any other property that
has been or is to be sold or transferred by the Company or any such Subsidiary
to any person (other than the Company) in connection with such lease.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Notes and the Series B Notes.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Security Agreement" means the Security Agreement dated as of the
date hereof between the Company and the Collateral Agent, as the same may be
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms.
"Series A Notes" means the Company's 10% Senior Secured Notes due
2004, Series A, as amended or supplemented from time to time in accordance with
the terms hereof, that are issued pursuant to this Indenture.
-22-
"Series B Notes" means the Company's 10% Senior Secured Notes due
2004, Series B, as amended or supplemented from time to time in accordance with
the terms hereof, that are issued pursuant to this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company that
satisfies the criteria for a "significant subsidiary" set forth in Rule 1.02(v)
of Regulation S-X under the Securities Act.
"Subsidiary" of any person means (i) any corporation of which the
outstanding capital stock having at least a majority of the votes entitled to be
cast in the election of directors under ordinary circumstances shall at the time
be owned, directly or indirectly, by such person or (ii) any other person of
which at least a majority of the voting interest under ordinary circumstances is
at the time owned, directly or indirectly, by such person. For purposes of this
definition, any directors' qualifying shares or investments by foreign nationals
mandated by applicable law shall be disregarded in determining the ownership of
a Subsidiary.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.07 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Survey" means a survey of any parcel of real property (and all
improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state where such property is located, (ii) dated (or
redated) not earlier than six months prior to the date of delivery thereof
(unless there shall have occurred within six months prior to such date of
delivery any exterior construction on the site of such property, in which event
such survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of such
date of delivery, not earlier than 20 days prior to such date of delivery),
(iii) certified by the surveyor (in a manner reasonably acceptable to the title
company providing title insurance) and (iv) complying in all respects with the
minimum detail requirements of the American Land Title Association, or local
equivalent, as such requirements are in effect on the date of preparation of
such survey, or that is otherwise reasonably
-23-
acceptable to the Trustee (giving consideration to the applicable transaction).
"Taking" shall have the meaning assigned to such term in the
Mortgage.
"Temporary Regulation S Global Security" has the meaning provided in
Section 2.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified under
the TIA.
"Transactions" means (i) the offering by the Company of the
Securities issued hereunder, (ii) the tender offer by the Company commenced on
October 23, 1996 to purchase for cash up to all of the $206.4 million aggregate
principal amount outstanding of the Existing Securities and a related consent
solicitation for amendment of the Existing Indenture, (iii) the tender offer by
Holdings commenced on October 28, 1996 to purchase for cash all of the
outstanding shares of common stock, no par value, $.01 stated value, of the
Company, (iv) the Merger and (v) the Dividend.
"Transferee Certificate" means the Transferee Letter of
Representation attached as Exhibit D to this Indenture.
"Transferee Securities Certification" has the meaning provided in
Section 2.06(g).
"Trust Moneys" has the meaning provided in Section 11.01.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"U.S. Government Obligations" has the meaning provided in Section
8.01.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
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"Valuation Date" has the meaning provided in Section 10.03.
"VEBA Intercreditor Agreement" means the VEBA Intercreditor
Agreement, dated as of November 27, 1996, by and between the Collateral Agent
and Bank One Trust Company, N.A., as trustee for the VEBA Trust (the "VEBA
Trustee"), as amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof or any replacement thereof.
"VEBA Mortgage" means the mortgage dated as of the date hereof
between the Company and the VEBA Trustee, as the same may be amended, amended
and restated, supplemented or otherwise modified from time to time.
"VEBA Security Agreement" means the security agreement dated as of
the date hereof between the Company and the VEBA Trustee, as the same may be
amended, amended and restated, supplemented or otherwise modified from time to
time.
"VEBA Trust" means a Voluntary Employee Beneficiaries Association
trust fund established under that certain 501(c)(9) Trust Agreement, dated
October 1, 1988, between Xxxxxx Consolidated Industries, Inc. and Bank One Trust
Company, N.A. to hold Company contributions to fund postretirement health care
and life insurance obligations for the benefit of certain hourly employees of
the Company.
"WCI Revolving Credit Facility" means the Amended and Restated Loan
and Security Agreement dated as of December 29, 1992, as amended, among the
Company, the lending institutions named therein and Congress Financial
Corporation, as agent, as the same may be amended, restated, supplemented or
otherwise modified from time to time, and includes any agreement renewing,
refinancing or replacing all or any portion of the Indebtedness under such
agreement.
"wholly-owned Subsidiary" means, with respect to any person, any
Subsidiary of such person all of the shares of Capital Stock (other than
directors' qualifying shares) of which are owned directly by such person or
another wholly-owned Subsidiary of such person.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of,
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this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the 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 and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. 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) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form of Exhibit A or Exhibit B
hereto, as the case may be. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company and the
Trustee shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its
authentication, shall bear interest from the applicable date and shall be
payable on the Interest Payment Dates and the Maturity Date.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Securities offered and sold in their initial distribution in
reliance on Regulation S may be initially issued in the form of temporary Global
Securities in fully registered form without interest coupons, substantially in
the form of Exhibit A, with such applicable legends as are provided for in
Exhibit A or Exhibit C. Such temporary Global Securities may be registered in
the name of the Depository or its nominee and deposited with the Trustee, as
custodian for the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided, for credit by the Depository to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct), provided that upon such
deposit all such Securities shall be credited to or through accounts maintained
at the Depository by or on behalf of Euroclear or CEDEL. Until such time as the
Restricted Period (as defined below) shall have expired, such temporary Global
Securities, together with their Successor Securities which are Global Securities
other than the Restricted Global Security, shall be referred to herein as a
"Temporary Regulation S Global Security." After such time as the Restricted
Period shall have expired and the certifications referred to below in the next
succeeding paragraph shall have been provided, interests in such Temporary
Regulation S Global Securities shall be exchanged for interests in like Global
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Securities, referred to herein collectively as the "Permanent Regulation S
Global Security," substantially in the form of Security set forth in Exhibit A,
with such applicable legends as are provided for in Exhibit A or Exhibit C. Such
Permanent Regulation S Global Securities shall be registered in the name of the
Depository or its nominee and deposited with the Trustee, as custodian for the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, for credit to the respective accounts of the beneficial
owners of the Securities represented thereby (or such other accounts as they may
direct). The aggregate principal amount of the Temporary Regulation S Global
Security or the Permanent Regulation S Global Security may be increased or
decreased from time to time by adjustments made on the records of the Trustee,
as custodian for the Depository, as hereinafter provided. As used herein, the
term "Restricted Period" means the period of 40 days commencing on the day after
the latest of (a) the day on which the Securities are first offered to persons
other than distributors (as defined in Regulation S) in reliance on Regulation S
and (b) the date of this Indenture.
Interests in a Temporary Regulation S Global Security may be
exchanged for interests in a Permanent Regulation S Global Security only after
(a) the expiration of the Restricted Period, (b) delivery by a beneficial owner
of an interest therein to Euroclear or CEDEL of a written certification (an
"Owner Securities Certification") substantially in the form of Annex E hereto,
and (c) upon delivery by Euroclear or CEDEL to the Trustee of a written
certification (a "Depository Securities Certification") substantially in the
form attached hereto as Annex F. Upon satisfaction of such conditions, the
Trustee will exchange the portion of the Temporary Regulation S Global Security
covered by such certification for interests in a Permanent Regulation S Global
Security. The delivery by such Holder of a beneficial interest in such Temporary
Regulation S Global Security of such certification shall constitute an
irrevocable instruction by such holder to Euroclear or CEDEL, as the case may
be, to exchange such Holder's beneficial interest in the Temporary Regulation S
Global Security for a beneficial interest in the Permanent Regulation S Global
Security upon the expiration of the Restricted Period in accordance with the
next succeeding paragraph.
Upon:
(i) the expiration of the Restricted Period;
(ii) receipt by Euroclear or CEDEL, as the case may be, of Owner
Securities Certifications described in the preceding paragraph;
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(iii) receipt by the Depository of:
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Depository to credit or cause to
be credited to a specified Agent Member's account a beneficial interest in a
Permanent Regulation S Global Security in a principal amount equal to that of
the beneficial interest in a corresponding Temporary Regulation S Global
Security for which the necessary certifications have been delivered; and
(2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent Member, and
the Euroclear or CEDEL account for which such Agent Member's account is held, to
be credited with, and the account of the Agent Member to be debited for, such
beneficial interest; and
(iv) receipt by the Trustee of notification from the Depository of
the transactions described in (iii) above and from Euroclear or CEDEL, as
the case may be, of Depository Securities Certifications,
the Trustee, as Registrar, shall instruct the Depository to reduce the principal
amount of such Temporary Regulation S Global Security and to increase the
principal amount of such Permanent Regulation S Global Security, by the
principal amount of the beneficial interest in such Temporary Regulation S
Global Security to be so transferred, and to credit or cause to be credited to
the account of the person specified in such instructions a beneficial interest
in such Permanent Regulation S Global Security having a principal amount equal
to the amount by which the principal amount of such Temporary Regulation S
Global Security was reduced upon such transfer.
Securities offered and sold in their initial distribution in
reliance on Rule 144A under the Security Act and other than in reliance on Rule
144A under the Securities Act or Regulation S shall be issued in the form of one
or more Global Securities (collectively, and, together with their Successor
Securities, the "Restricted Global Security") in fully registered form without
interest coupons, substantially in the form of Security set forth in Exhibit A,
with such applicable legends as are provided for in Exhibit A or Exhibit C,
except as otherwise permitted herein. Such Restricted Global Security shall be
registered in the name of the Depository or its nominee and deposited with the
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit by the
Depository to the respective accounts of beneficial owners of
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the Securities represented thereby (or such other accounts as they may direct).
The aggregate principal amount of the Restricted Global Security may be
increased or decreased from time to time by adjustments made on the records of
the Trustee, as custodian for the Depository, in connection with a corresponding
decrease or increase in the aggregate principal amount of the Temporary
Regulation S Global Security or the Permanent Regulation S Global Security, as
hereinafter provided.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall nevertheless be valid.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $300,000,000 upon receipt of a written order
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Securities to be authenticated and the
date on which the Securities are to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $300,000,000, except
as provided in Section 2.07. Upon the written order of the Company in the form
of an Officers' Certificate, the Trustee shall authenticate Securities in
substitution of Securities originally issued to reflect any name change of the
Company.
Series B Notes may be issued only in exchange for a like principal
amount of Series A Notes pursuant to an Exchange Offer.
The principal and interest on Book-Entry Securities shall be payable
to the Depository or its nominee, as the case may be, as the sole registered
owner and the sole holder of the Book-Entry Securities represented thereby. The
principal and interest on
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Securities in certificated form shall be payable at the office of the Paying
Agent.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise provided
in the appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
If the Securities are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that shall represent and shall be in
minimum denominations of $1,000.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company may also from time to time designate one or
more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes. Neither
the Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more co-
Registrars and one or more additional paying agents reasonably acceptable to the
Trustee. The term "Paying Agent" includes any additional paying agent. The
Company initially appoints the Trustee as Registrar and Paying Agent until such
time as the Trustee has resigned or a successor has been appointed.
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The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, or interest on, the Securities (whether such assets
have been distributed to it by the Company or any other obligor on the
Securities), and shall notify the Trustee of any Default by the Company (or any
other obligor on the Securities) in making any such payment. The Company at any
time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee before each Record Date and at such other times as the Trustee may
request in writing a list as of such date and in such form as the Trustee may
reasonably require of the names and addresses of the Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
(a) Beneficial interests in a Global Security may, subject to the
restrictions on the transferability of the Securities and upon delivery of a
certificate in the form of Exhibit D, be exchanged for certificated Securities
upon request but only upon at least 20 days' prior written notice given to the
Trustee by or on behalf of the Depository (in accordance with the
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Depository's customary procedures) and will bear the applicable legends set
forth in Exhibit A.
(b) If any Global Security is to be exchanged for other Securities
or cancelled in whole, it shall be surrendered by or on behalf of the Depository
or its nominee to the Trustee, as Registrar, for exchange or cancellation as
provided in this Article II. If any Global Security is to be exchanged for other
Securities or cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, such Global
Security shall be so surrendered for exchange or cancellation as provided in
this Article II or, if the Trustee is acting as custodian for the Depository or
its nominee (or is party to a similar arrangement) with respect to such Global
Security, the principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or cancelled, or the
principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, in each case by means of an appropriate
adjustment made on the records of the Trustee, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the Depository or its
authorized representatives to make a corresponding adjustment to its records
(including by crediting or debiting any Agent Member's account as necessary to
reflect any transfer or exchange of a beneficial interest). Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to this
Article II, authenticate and deliver any Securities issuable in exchange for
such Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depository or its authorized
representative. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph or in
paragraph (r) below, the Company shall promptly make available to the Trustee a
reasonable supply of Securities that are not in the form of Global Securities.
The Trustee shall be entitled to rely upon any order, direction or request of
the Depository or its authorized representative which is given or made pursuant
to this Article II if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(c) Subject to the provisions in the legends required by this
Indenture, the registered Holder may grant proxies and otherwise authorize any
Person, including Agent Members and Persons who may hold interests in Agent
Members, to take any action that such Holder is entitled to take under this
Indenture.
(d) Neither Agent Members nor any other Person on whose behalf Agent
Members may act shall have any rights under this
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Indenture with respect to any Global Security held on their behalf by the
Depository or under the Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security. With respect to any Global Security deposited with the Trustee as
custodian for the Depository for credit to their respective accounts (or to such
other accounts as they may direct) at Euroclear or CEDEL, the provisions of the
"Operating Procedures of the Euroclear System" and the "Terms and Conditions
Governing Use of Euroclear", and the "Management Regulations" and "Instructions
to Participants" of CEDEL, respectively, shall be applicable to such Global
Security.
(e) Upon presentation for transfer or exchange of any Security at
the office of the Trustee, as Registrar, located in The City of New York,
accompanied by a written instrument of transfer or exchange in the form approved
by the Company (it being understood that, until notice to the contrary is given
to holders of Securities, the Company shall be deemed to have approved the form
of instrument of transfer or exchange, if any, printed on any Security),
executed by the registered Holder, in person or by such Holder's attorney
thereunto duly authorized in writing, and upon compliance with this Section
2.06, such Security shall be transferred upon the Register, and a new Security
shall be authenticated and issued in the name of the transferee. Notwithstanding
any provision to the contrary herein or in the Securities, transfers of a Global
Security, in whole or in part, and transfers of interests therein of the kind
described in this Section 2.06, shall only be made in accordance with this
Section 2.06. Transfers and exchanges subject to this Section 2.06 shall also be
subject to the other provisions of this Indenture that are not inconsistent with
this Section 2.06.
(f) General. A Global Security may not be transferred, in whole or
in part, to any Person other than the Depository or a nominee thereof, and no
such transfer to any such other Person may be registered; provided, however,
that this clause (f) shall not prohibit any transfer of a Security that is
issued in exchange for a Global Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective under this Indenture or
the Securities unless and until such Security has been registered in the name of
such Person. Nothing in this clause (f)
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shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Security effected in accordance with the other provisions of this Section
2.06.
(g) Temporary Regulation S Global Security. If the holder of a
beneficial interest in a Temporary Regulation S Global Security wishes at any
time to transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in such Temporary Regulation S Global
Security, such transfer may be effected, subject to the rules and procedures of
the Depository, Euroclear and CEDEL, in each case to the extent applicable and
as in effect from time to time (the "Applicable Procedures"), only in accordance
with this clause (g). Upon delivery (i) by a beneficial owner of an interest in
a Temporary Regulation S Global Security to Euroclear or CEDEL, as the case may
be, of an Owner Securities Certification, (ii) by the transferee of such
beneficial interest in the Temporary Regulation S Global Security to Euroclear
or CEDEL, as the case may be, of a written certification (a "Transferee
Securities Certification") substantially in the form of Exhibit G hereto and
(iii) by Euroclear or CEDEL, as the case may be, to the Trustee, as Registrar,
of a Depository Securities Certification, the Trustee may direct either
Euroclear or CEDEL, as the case may be, to reflect on its records the transfer
of a beneficial interest in the Temporary Regulation S Global Security from the
beneficial owner providing the Owner Securities Certification to the Person
providing the Transferee Securities Certification.
(h) Restricted Global Security to Temporary Regulation S Global
Security. If the holder of a beneficial interest in the Restricted Global
Security wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the Temporary
Regulation S Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with the provisions of this clause (h)
and clause (n) below. Upon receipt by the Trustee, as Registrar, of (A) written
instructions given by or on behalf of the Depository in accordance with the
Applicable Procedures directing the Trustee to credit or cause to be credited to
a specified Agent Member's account a beneficial interest in the Temporary
Regulation S Global Security in a specified principal amount and to cause to be
debited from another specified Agent Member's account a beneficial interest in
the Restricted Global Security in an equal principal amount and (B) a
certificate in substantially the form set forth in Exhibit H signed by or on
behalf of the holder of such beneficial interest in the Restricted Global
Security, the Trustee, as Security Registrar, shall, subject to clause (n)
below, reduce the principal amount of the Restricted Global Security, and
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increase the principal amount of the Temporary Regulation S Global Security by
such specified principal amount.
(i) Restricted Global Security to Permanent Regulation S Global
Security. If the holder of a beneficial interest in the Restricted Global
Security wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the Permanent
Regulation S Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this clause (i). Upon receipt by
the Trustee, as Security Registrar, of (A) written instructions given by or on
behalf of the Depository in accordance with the Applicable Procedures directing
the Trustee to credit or cause to be credited to a specified Agent Member's
account a beneficial interest in the Permanent Regulation S Global Security in a
specified principal amount and to cause to be debited from another specified
Agent Member's account a beneficial interest in the Restricted Global Security
in an equal principal amount and (B) a certificate in substantially the form set
forth in Exhibit I signed by or on behalf of the holder of such beneficial
interest in the Restricted Global Security, the Trustee, as Registrar, shall
reduce the principal amount of a Restricted Global Security, and increase the
principal amount of the Permanent Regulation S Global Security by such specified
principal amount.
(j) Temporary Regulation S Global Security or Permanent Regulation S
Global Security to Restricted Global Security. If the holder of a beneficial
interest in the Temporary Regulation S Global Security or the Permanent
Regulation S Global Security at any time, wishes to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in the Restricted Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this clause (j) and clause (n)
below; provided that with respect to any transfer of a beneficial interest in a
Temporary Regulation S Global Security, the transferor and Euroclear or CEDEL,
as the case may be, must have previously delivered an Owner Securities
Certification and a Depository Securities Certification respectively, with
respect to such beneficial interest. Upon receipt by the Trustee, as Registrar,
of (A) written instructions given by or on behalf of the Depository in
accordance with the Applicable Procedures directing the Trustee to credit or
cause to be credited to a specified Agent Member's account a beneficial interest
in the Restricted Global Security in a specified principal amount and to cause
to be debited from another specified Agent Member's account a beneficial
interest in the Temporary Regulation S Global Security or the Permanent
Regulation S Global Security, as the case may be, in an equal principal amount
and (S) a certificate
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in substantially the form set forth in Exhibit J signed by or on behalf of the
holder of such beneficial interest in the Temporary Regulation S Global Security
or the Permanent Regulation S Global Security, as the case may be, the Trustee,
as Security Registrar, shall, subject to clause (n) below, reduce the principal
amount of such Temporary Regulation S Global Security or Permanent Regulation S
Global Security, as the case may be, and increase the principal amount of the
Restricted Global Security by such specified principal amount.
(k) Non-Global Restricted Security to Global Security. If the holder
of a Restricted Security (other than a Global Security) wishes at any time to
transfer all or any portion of such Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Restricted Global
Security, the Temporary Regulation S Global Security or the Permanent Regulation
S Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this clause (k) and clause (n) below. Upon
receipt by the Trustee, as Registrar, of (A) such Security and written
instructions given by or on behalf of such Holder as provided in this Section
2.06 directing the Trustee to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in the Restricted Global Security,
the Temporary Regulation S Global Security or the Permanent Regulation S Global
Security, as the case may be, in a specified principal amount equal to the
principal amount of the Restricted Security (or portion thereof) to be so
transferred, and (B) an appropriately completed certificate substantially in the
form set forth in Exhibit K-1 hereto, if the specified account is to be credited
with a beneficial interest in the Restricted Global Security, or Exhibit K-2
hereto, if the specified account is to be credited with a beneficial interest in
the Temporary Regulation S Global Security or the Permanent Regulation S Global
Security, signed by or on behalf of such Holder, then the Trustee, as Registrar,
shall, subject to clause (n) below, cancel such Restricted Security (and issue a
new Security in respect of any untransferred portion thereof) as provided in
this Section 2.06 and increase the principal amount of the Restricted Global
Security, Temporary Regulation S Global Security or Permanent Regulation S
Global Security, as the case may be, by the specified principal amount.
(l) Non-Global Permanent Regulation S Security to Restricted Global
Security or Permanent Regulation S Global Security. If the Holder of a Permanent
Regulation S Security (other than a Global Security) wishes at any time to
transfer all or any portion of such Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the
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Restricted Global Security or the Permanent Regulation S Global Security, as the
case may be, such transfer may be effected only in accordance with this clause
(l) and subject to the Applicable Procedures. Upon receipt by the Trustee, as
Registrar, of (A) such Security and instructions given by or on behalf of such
Holder as provided in this Section 2.06 directing the Trustee to credit or cause
to be credited to a specified Agent Member's account a beneficial interest in
the Restricted Global Security or the Permanent Regulation S Global Security, as
the case may be, in a principal amount equal to the principal amount of the
Security (or portion thereof) to be so transferred, and (B)(i) with respect to a
transfer which is to be delivered in the form of a beneficial interest in the
Restricted Global Security, a certificate in substantially the form set forth in
Exhibit L-1, signed by or on behalf of such Holder, and (ii) with respect to a
transfer which is to be delivered in the form of a beneficial interest in the
Permanent Regulation S Global Security, a certificate in substantially the form
set forth in Exhibit L-2, signed by or on behalf of such Holder, then the
Trustee, as Registrar, shall, subject to Clause (9) below, cancel such Security
(and issue a new Security in respect of any untransferred portion thereof) as
provided in this Section 2.06 and increase the principal amount of the
Restricted Global Security, or the Permanent Regulation S Global Security, as
the case may be, by the specified principal.
(m) Other Exchanges. Securities that are not Global Securities may
be exchanged (on transfer or otherwise) for Securities that are not Global
Securities or for beneficial interests in a Global Security (if any is then
outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (f) through (l) above
(including the certification requirements intended to insure that transfers of
beneficial interests in a Global Security comply with Rule 144A under the
Securities Act, Rule 144 under the Securities Act or Regulation S, as the case
may be) and any Applicable Procedures, as may be from time to time adopted by
the Company and the Trustee.
(n) Interests in Temporary Regulation S Global Security to be Held
Through Euroclear or CEDEL. Until the later of the expiration of the Restricted
Period and the provision of the Owner Securities Certification and the
Depository Securities Certification, beneficial interests in any Temporary
Regulation S Global Security may be held only in or through accounts maintained
at the Depository by Euroclear or CEDEL (or by Agent Members acting for the
account thereof).
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(o) When Securities in certificated form are presented to the
Registrar or a co-Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing. To permit registrations of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-Registrar's request. No service charge shall
be made for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Sections 2.02, 2.10, 3.07, 4.15, 4.16 or 9.05). The
Registrar or co-Registrar shall not be required to register the transfer of or
exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Securities and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Security being redeemed in part.
(p) If a Series A Note is a Restricted Security in certificated
form, then as provided in this Indenture and subject to the limitations herein
set forth, the Holder, provided it is a Qualified Institutional Buyer, may
exchange such Security for a Book-Entry Security by instructing the Trustee (by
completing the Transferee Certificate in the form of Exhibit D hereto) to
arrange for such Series A Note to be represented by a beneficial interest in a
Global Security in accordance with the customary procedures of the Depository.
(q) Upon any exchange provided for in Section 2.06(a), the Company
shall execute and the Trustee shall authenticate and deliver to the person
specified by the Depository a new Series A Note or Notes registered in such
names and in such authorized denominations as the Depository, pursuant to the
instructions of the beneficial owner of the Securities requesting the exchange,
shall instruct the Trustee. Thereupon, the beneficial ownership of such Global
Security shown on the records maintained by the Depository or its nominee shall
be reduced by the amounts so exchanged and an appropriate endorsement shall be
made by or on
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behalf of the Trustee on the Global Security. Any such exchange shall be
effected through the Depository in accordance with the procedures of the
Depository therefor.
(r) Notwithstanding the foregoing, no Global Security shall be
registered for transfer or exchange, or authenticated and delivered, whether
pursuant to this Section, Section 2.07, 2.10 or 3.07 or otherwise, in the name
of a person other than the Depository for such Global Security or its nominee
until (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time the Depository
ceases to be a clearing agency registered under the Exchange Act, and a
successor depository is not appointed by the Company within 30 days, (ii) the
Company executes and delivers to the Trustee a Company order that all such
Global Securities shall be exchangeable or (iii) there shall have occurred and
be continuing an Event of Default. Upon the occurrence in respect of any Global
Security representing the Series A Notes of any one or more of the conditions
specified in clause (i), (ii) or (iii) of the preceding sentence, such Global
Security may be registered for transfer or exchange for Series A Notes
registered in the names of, authenticated and delivered to, such persons as the
Trustee or the Depository, as the case may be, shall direct.
(s) Except as provided above, any Security authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
any Global Security, whether pursuant to this Section, Section 2.07, 2.10 or
3.07 or otherwise, shall also be a Global Security and bear the legend specified
in Exhibit C.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Security, including reasonable
fees and expenses of counsel. Every replacement Security shall constitute an
additional obligation of the Company.
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SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or any of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Securities payable on that date, then on and
after that date such Securities cease to be outstanding and interest on them
ceases to accrue; provided, however, that to the extent the Trustee is enjoined
from making payments to the Holders, interest will continue to accrue until such
time as the Trustee is not so enjoined.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or an Affiliate of the Company shall be disregarded, except
that, for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that the
Trustee knows are so owned shall be disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall
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authenticate upon receipt of a written order of the Company pursuant to Section
2.02 definitive Securities in exchange for temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities,
it shall, unless the Trustee fixes another record date pursuant to Section 6.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest to the persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding the date fixed
by the Company for the payment of defaulted interest or the next succeeding
Business Day if such date is not a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder, with a
copy to the Trustee, a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest, and interest payable on
such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities may use a CUSIP number or
numbers, and if so, the Trustee shall use the CUSIP number or numbers in notices
of redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number or numbers printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities.
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SECTION 2.14. Designation.
The Indebtedness evidenced by the Securities is hereby irrevocably
designated as "senior indebtedness" or such other term denoting seniority (i)
for all purposes of the provisions defining subordination contained in
agreements that provide that the Indebtedness of the Company issued pursuant to
such agreements is subordinate to Indebtedness designated as senior indebtedness
and (ii) for the purposes of any future Indebtedness of the Company which the
Company expressly makes subordinate to any senior indebtedness or such other
term denoting seniority. In connection with the issuance of any such future
subordinated Indebtedness, the Company shall take all necessary steps to
effectuate the foregoing.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Optional Redemption.
(a) The Securities will be subject to redemption, in whole or in
part, at the option of the Company, at any time on or after December 1, 2001, at
the redemption prices (expressed as percentages of principal amount) set forth
below plus accrued interest to the redemption date, if redeemed during the 12
month period beginning on December 1 of the years indicated below:
Year Percentage
2001.................................................... 105.000%
2002.................................................... 103.333%
2003.................................................... 101.000%
(b) In addition, at any time prior to December 1, 1999, the Company
may redeem up to 33-1/3% of the aggregate principal amount of the Securities
originally issued with the proceeds of one or more Equity Offerings at a
redemption price (expressed as a percentage of principal amount) of 109% plus
accrued interest to the redemption date; provided that at least $200 million
aggregate principal amount of Securities remains outstanding immediately after
any such redemption. In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Equity Offering.
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SECTION 3.02. Notices to Trustee.
If the Company elects to redeem Securities pursuant to this
Indenture and the Securities, it shall notify the Trustee and the Paying Agent
in writing of the Redemption Date and the principal amount of the Securities to
be redeemed and whether it wants the Trustee to give notice of redemption to the
Holders (at the Company's expense) at least 35 days (unless a shorter notice
shall be satisfactory to the Trustee) but not more than 60 days before the
Redemption Date. Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.03. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed at any time,
the Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities being redeemed are listed or, if the Securities are not listed on a
national securities exchange, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 or less may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. If a redemption is to be made with the
proceeds of an Equity Offering pursuant to Section 3.01, selection of the
Securities for redemption shall be made by the Trustee only on a pro rata basis
unless such method is otherwise prohibited. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption.
SECTION 3.04. Notice of Redemption.
Except as otherwise provided in Section 3.01, at least 30 days but
not more than 60 days before a Redemption Date the Company shall mail a notice
of redemption by first class mail to each Holder whose Securities are to be
redeemed, with a copy to the Trustee. At the Company's request, the Trustee
shall give the notice of redemption in the Company's name and at the Company's
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expense. Each notice for redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption; and
(8) the CUSIP number, if any, relating to such Securities.
SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.04,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price plus
accrued interest to the Redemption Date, but interest installments whose
maturity is on or prior to such Redemption Date will be payable on the relevant
Interest Payment Dates to the Holders of record at the
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close of business on the relevant Record Dates referred to in the Securities.
SECTION 3.06. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of all
Securities to be redeemed on that date (other than Securities or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation). The Paying Agent shall promptly return
to the Company any U.S. Legal Tender so deposited which is not required for that
purpose upon the written request of the Company, except with respect to monies
owed as obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
SECTION 3.07. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and (to the
extent permitted by law) on overdue installments of interest at a rate equal to
12% per annum.
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SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03. The Company shall
give prior notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby initially designates the office of Fleet National
Bank, c/o First Chicago Trust Company, 00 Xxxx Xxxxxx, 0xx Xxxxx, Window Xx. 0,
Xxx Xxxx, Xxx Xxxx 00000, as such office of the Company in accordance with this
Section 4.02.
SECTION 4.03. Limitation on Restricted Payments.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, after the Issue Date (a) declare or pay any dividend
or make any distribution on the Company's Capital Stock or make any payment to
holders of such Capital Stock (other than dividends or distributions payable in
Qualified Capital Stock of the Company), (b) purchase, redeem or otherwise
acquire or retire for value any Qualified Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, other than the exchange of such Capital Stock for Qualified
Capital Stock, (c) purchase, redeem, prepay, defease or otherwise acquire or
retire for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, Disqualified Capital Stock of the Company or
Indebtedness of the Company that is expressly subordinate in right of payment to
the Securities or (d) make any Investment (excluding any Permitted Investment)
(each of the foregoing actions set forth in clauses (a), (b), (c) and (d) being
referred to as a "Restricted Payment"), if at the time of
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such Restricted Payment or immediately after giving effect thereto, (i) a
Default or an Event of Default shall have occurred and be continuing or (ii)
Restricted Payments made subsequent to the Issue Date (the amount expended for
such purposes, if other than in cash, shall be the Fair Market Value of such
property proposed to be transferred by the Company or such Subsidiary, as the
case may be, pursuant to such Restricted Payment) shall exceed the sum of:
(x) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
earned subsequent to October 31, 1996 and prior to the date the Restricted
Payment occurs (treating such period as a single accounting period);
(y) 100% of the aggregate net proceeds, including the Fair Market
Value of property other than cash, received by the Company from any person
(other than a Subsidiary of the Company) from the issuance and sale subsequent
to the Issue Date of Qualified Capital Stock of the Company (excluding (A)
Qualified Capital Stock paid as a dividend on any Capital Stock or as interest
on any Indebtedness, (B) any net proceeds from issuances and sales financed
directly or indirectly using funds borrowed from the Company or any Subsidiary
of the Company, until and to the extent such borrowing is repaid and (C) any net
proceeds from any Equity Offering which are used to redeem Securities pursuant
to, and in accordance with, the provisions described in Section 3.01); and
(z) 100% of the aggregate net proceeds, including the Fair Market
Value of property other than cash, received by the Company from any person
(other than a Subsidiary of the Company) from the issuance and sale of
Disqualified Capital Stock and/or Indebtedness, in each case that has been
converted into or exchanged for Qualified Capital Stock of the Company after the
Issue Date.
The foregoing provisions shall not prohibit: (1) the payment of any
dividend within 60 days after the date of its declaration if the dividend would
have been permitted on the date of declaration; (2) the acquisition of Capital
Stock of the Company or Indebtedness of the Company either (i) solely in
exchange for shares of Qualified Capital Stock or (ii) through the application
of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock; (3) the
acquisition of Indebtedness of the Company that is expressly subordinate in
right of payment to the Securities either (i) solely in exchange for
Indebtedness of the Company which is expressly subordinate in right of payment
to the Securities at
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least to the extent that the Indebtedness being acquired is subordinated to the
Securities and has no scheduled principal prepayment dates prior to the
scheduled final maturity date of the Indebtedness being exchanged or (ii)
through the application of net proceeds of a substantially concurrent sale for
cash (other than to a Subsidiary of the Company) of Indebtedness of the Company
which is expressly subordinate in right of payment to the Securities at least to
the extent that the Indebtedness being acquired is subordinated to the
Securities and has no scheduled principal prepayment dates prior the scheduled
final maturity date of the Indebtedness being refinanced; (4) the making of
payments by the Company to Renco (A) no earlier than ten days prior to the date
on which Renco is required to make its payments to the Internal Revenue Service
or the applicable state taxing authority, as the case may be, pursuant to a tax
sharing agreement between the Company and Renco (which tax sharing agreement
provides that the payments thereunder shall not exceed the amount the Company
would have been required to pay for taxes on a stand-alone basis, except that
the Company will not have the benefit of any of its tax loss carryforwards
unless such tax losses were a result of timing differences between the Company's
accounting for tax and financial reporting purposes, and which tax sharing
agreement also provides that transactions between the Company and Renco and its
other subsidiaries are accounted for on a cash basis and not on an accrual
basis) and (B) to reimburse Renco for out of pocket insurance payments made by
Renco on behalf of the Company and its Subsidiaries; (5) the payment by the
Company or any of its Subsidiaries of a management fee to Renco in an amount not
to exceed $100,000 in any month; (6) the payment by the Company of a dividend
(the "Dividend") to Renco on or about the Issue Date not to exceed $108 million;
and (7) the making of a loan to Holdings on the Issue Date not to exceed $60
million which loan will be extinguished upon consummation of the Merger;
provided that in the case of clauses (2), (3) and (5), no Default or Event of
Default shall have occurred and be continuing at the time of such payment or as
a result thereof.
In determining the aggregate amount of Restricted Payments
permissible under clause (ii) of the first paragraph of this section, amounts
expended, incurred or outstanding pursuant to clauses (1) and (2) (but not
pursuant to clauses (3), (4), (5), (6) or (7)) of the second paragraph of this
section shall be included as Restricted Payments; provided that any proceeds
received from the issuance of Qualified Capital Stock pursuant to clause (2) of
the second paragraph of this section shall be included in calculating the amount
referred to in clause (y) or clause (z), as the case may be, of the first
paragraph of this section.
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Prior to any Restricted Payment under the first paragraph of this
Section 4.03, the Company shall deliver to the Trustee an Officers' Certificate
setting forth the computation by which the amount available for Restricted
Payments pursuant to such paragraph was determined. The Trustee shall have no
duty or responsibility to determine the accuracy or correctness of this
computation and shall be fully protected in relying on such Officers'
Certificate.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five and except in
connection with the Merger, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate or other existence of each of its Subsidiaries in accordance
with the respective organizational documents of each such Subsidiary and the
rights (charter and statutory) and franchises of the Company and each such
Subsidiary; provided, however, that the Company shall not be required to
preserve, with respect to itself, any right or franchise, and with respect to
any of its Subsidiaries any such existence, right or franchise, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and will not be
adverse in any material respect to the Holders.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however,
that, subject to the terms of the applicable Collateral Document, the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim if either (a) the amount, applicability or
validity thereof is being contested in good faith by appropriate proceedings and
an adequate reserve has been established therefor to the extent required by GAAP
or (b) the failure to make such payment or effect such discharge (together with
all other such failures) would not have a material adverse effect on the
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
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SECTION 4.06. Maintenance of Properties and Insurance.
(a) Subject to the applicable provisions of the Collateral
Documents, the Company shall cause all properties used or useful in the conduct
of its business or the business of any of its Subsidiaries to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its judgment may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times unless the failure to so
maintain such properties (together with all other such failures) would not have
a material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole; provided, however, that
nothing in this Section 4.06 shall prevent the Company or any Subsidiary of the
Company from discontinuing the operation or maintenance of any of such
properties (other than properties constituting items of Collateral except to the
extent permitted by Section 10.04), or disposing of any of them (other than
properties constituting items of Collateral except to the extent permitted by
Section 10.04), if such discontinuance or disposal is either (i) in the ordinary
course of business, (ii) in the good faith judgment of the Board of Directors of
the Company or the Subsidiary concerned, or of the senior officers of the
Company or such Subsidiary, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, or (iii) is
otherwise permitted by this Indenture.
(b) The Company shall provide or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are adequate and appropriate for the conduct of the business of
the Company and such Subsidiaries in a prudent manner, with reputable insurers
or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the reasonable, good faith opinion of the
Company, for companies similarly situated in the industry, unless the failure to
provide such insurance (together with all other such failures) would not have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
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SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 60 days after
the end of the Company's fiscal quarters and within 90 days after the end of the
Company's fiscal year, an Officers' Certificate stating that a review of its
activities and the activities of its Subsidiaries during the preceding fiscal
period has been made under the supervision of the signing Officers with a view
to determining whether it has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge, the Company during
such preceding fiscal period has kept, observed, performed and fulfilled each
and every such covenant and no Default or Event of Default occurred during such
period and at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers do know of such
Default or Event of Default, the certificate shall describe the Default or Event
of Default and its status with particularity. The Officers' Certificate shall
also include all calculations necessary to show covenant compliance. The
Officers' Certificate shall also notify the Trustee should the Company elect to
change the manner in which it fixes its fiscal year end.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the Company shall
deliver to the Trustee within 90 days after the end of each fiscal year a
written statement by the Company's independent certified public accountants
stating (A) that their audit examination has included a review of the terms of
this Indenture and the Securities as they relate to accounting matters, and (B)
whether, in connection with their audit examination, any Default or Event of
Default has come to their attention and if such a Default or Event of Default
has come to their attention, specifying the nature and period of existence
thereof.
(c) The Company will deliver to the Trustee as soon as possible, and
in any event within 10 days after the Company becomes aware or should reasonably
have become aware of the occurrence of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries
to comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of
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America, all states and municipalities thereof, and of any governmental
department, commission, board, regulatory authority, bureau, agency and
instrumentality of the foregoing, in respect of the conduct of their respective
businesses and the ownership of their respective properties, except such as are
being contested in good faith and by appropriate proceedings and except for such
noncompliances as would not in the aggregate have a material adverse effect on
the financial condition or results of operations of the Company and its
Subsidiaries taken as a whole.
SECTION 4.09. SEC Reports and Other Information.
(a) At all times when the Company is required or permitted
voluntarily to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act or this Indenture is qualified under the TIA, the Company (at its own
expense) shall file with the SEC and shall file with the Trustee and mail or
cause the Trustee to mail to the Holders at their addresses set forth in the
register of Securities within 15 days after it files them with the SEC copies of
the annual reports, quarterly reports and the information, documents, and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) to be filed pursuant to Section 13 or 15(d) of
the Exchange Act. If the Company is not subject to the requirements of such
Section 13 or 15(d) of the Exchange Act and not permitted to voluntarily file
and this Indenture has not been qualified under the TIA, the Company (at its own
expense) shall file with the Trustee and mail or cause the Trustee to mail to
the Holders at their addresses set forth in the register of Securities, within
15 days after it would have been required to file such information with the SEC,
all information and financial statements, including any notes thereto and with
respect to annual reports, quarterly reports, an auditors' report by an
accounting firm of established national reputation, and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations," both
comparable to the disclosure that the Company would have been required to
include in such annual reports, quarterly reports, information, documents or
other reports, as if the Company was subject to the requirements of such Section
13 or 15(d) of the Exchange Act, in each case in the form that would have been
required by the SEC. Upon qualification of this Indenture under the TIA, the
Company shall also comply with the provisions of TIA ss. 314(a).
(b) At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a Holder of a Series A Note, the
Company will promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
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provision thereto) to such Holder or to a prospective purchaser of such Series A
Note designated by such Holder, as the case may be, in order to permit
compliance by such Holder with Rule 144A under the Securities Act.
SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with or for the
benefit of, an Affiliate of the Company or any Subsidiary of the Company (other
than transactions between the Company and a wholly-owned Subsidiary of the
Company or between wholly-owned Subsidiaries of the Company) (an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under (b) below
and (y) Affiliate Transactions (including lease transactions) on terms that are
no less favorable to the Company or the relevant Subsidiary in the aggregate
than those that might reasonably have been obtained in a comparable transaction
by the Company or such Subsidiary on an arm's-length basis (as determined in
good faith by the Board of Directors of the Company, as evidenced by a Board
Resolution) from a person that is not an Affiliate; provided that except as
otherwise provided by (b) below, neither the Company nor any of its Subsidiaries
shall enter into an Affiliate Transaction or series of related Affiliate
Transactions involving or having a value of more than $5.0 million unless the
Company or such Subsidiary, as the case may be, has received an opinion from an
Independent Financial Advisor, with a copy thereof to the Trustee, to the effect
that the financial terms of such Affiliate Transaction are fair and reasonable
to the Company or
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such Subsidiary, as the case may be, and such terms are no less favorable to the
Company or such Subsidiary, as the case may be, than those that could be
obtained in a comparable transaction on an arm's-length basis with a person that
is not an Affiliate.
(b) The foregoing provisions shall not apply to (i) any Restricted
Payment that is made in compliance with Section 4.03, (ii) the payment by the
Company or any of its Subsidiaries of a management fee to Renco in an amount not
to exceed $100,000 in any month and any other amounts payable under the
Management Consultant Agreement as in effect on the Issue Date and (iii)
reasonable and customary regular fees to directors of the Company who are not
employees of the Company.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
become liable, contingently or otherwise, with respect to, or otherwise become
responsible for the payment of (collectively "incur") any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness; provided
that the Company may incur Indebtedness (including Acquired Indebtedness) if:
(A) no Default or Event of Default shall have occurred and be continuing at the
time of the proposed incurrence thereof or shall occur as a result of such
proposed incurrence, and (B) after giving effect to such proposed incurrence,
the Consolidated Fixed Charge Coverage Ratio of the Company is at least equal to
2.5 to 1.0. Notwithstanding the foregoing, a Subsidiary of the Company may incur
Acquired Indebtedness to the extent such Indebtedness could have been incurred
by the Company pursuant to the proviso in the immediately preceding sentence.
(b) The Company shall not, directly or indirectly, in any event
incur any Indebtedness which by its terms (or by the terms of any agreement
governing such Indebtedness) is subordinated to any other Indebtedness of the
Company unless such Indebtedness is also by its terms (or by the terms of any
agreement governing such Indebtedness) made expressly subordinated to the
Securities to the same extent and in the same manner as such Indebtedness is
subordinated to such other Indebtedness of the Company.
SECTION 4.13. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause
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or suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary of the Company to: (a) pay dividends or make any other
distributions on its Capital Stock, or any other interest or participation in,
or measured by, its profits, owned by the Company or by any Subsidiary of the
Company, or pay any Indebtedness owed to the Company or a Subsidiary of the
Company; (b) make loans or advances to the Company or a Subsidiary of the
Company; or (c) transfer any of its properties or assets to the Company or to
any Subsidiary of the Company, except for such encumbrances or restrictions
existing under or by reason of: (i) applicable law; (ii) this Indenture and the
Existing Indenture; (iii) customary nonassignment provisions of any lease
governing a leasehold interest of the Company or any Subsidiary of the Company;
(iv) any instrument governing Indebtedness of a person acquired by the Company
or any Subsidiary of the Company at the time of such acquisition, which
encumbrance or restriction is not applicable to any person, or the properties or
assets of any person, other than the person or its Subsidiaries so acquired; (v)
any written agreement existing on the Issue Date; provided that the term of any
such agreement shall not be extended beyond the term as in effect on the Issue
Date and no such agreement shall be modified or amended in such a manner as to
make the encumbrance or restriction more restrictive than as in effect on the
Issue Date; (vi) Indebtedness existing and as in effect on the Issue Date,
including, without limitation, the WCI Revolving Credit Facility or any
refinancing, refunding, replacement or extensions thereof; provided that any
such encumbrance or restriction contained in any refinancing, refunding,
replacement or extension of the WCI Revolving Credit Facility shall be no more
restrictive than such encumbrance or restriction contained in the WCI Revolving
Credit Facility as in effect on the Issue Date; and (vii) Indebtedness incurred
in accordance with this Indenture; provided that such encumbrance or restriction
shall be no more restrictive than any encumbrance or restriction contained in
the WCI Revolving Credit Facility as in effect on the Issue Date.
SECTION 4.14. Limitation on Liens.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Liens
(i) upon any item of Collateral other than the Liens created by the Securities,
this Indenture and the Collateral Documents and the Liens expressly permitted by
the applicable Collateral Document, including the Liens, if any, on the Issue
Date in favor of the holders of the Existing Securities and the Liens in favor
of the VEBA Trust and (ii) upon any other properties or assets of the Company
(including, without limitation, any Capital Stock of a Subsidiary) or any of
their Subsidiaries
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whether owned on the Issue Date or acquired after the Issue Date, or on any
income or profits therefrom, or assign or otherwise convey any right to receive
income or profits thereon other than (a) Liens existing on the Issue Date to the
extent and in the manner such Liens are in effect on the Issue Date, including,
without limitation, Liens securing Indebtedness under the WCI Revolving Credit
Facility as of the Issue Date and (b) Permitted Liens.
SECTION 4.15. Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer to purchase all outstanding Securities pursuant to
the offer described in paragraph (b), below (the "Change of Control Offer"), at
a purchase price equal to 101% of the principal amount thereof plus accrued
interest, if any, to the date of purchase. Within 10 days after the date upon
which the Change of Control occurred (the "Change of Control Date") requiring
the Company to make a Change of Control Offer pursuant to this Section 4.15, the
Company shall so notify the Trustee.
(b) The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Change of Control Offer. Within 30 days following any Change of Control Date,
the Company shall send, by first class mail, a notice to each Holder, with
copies to the Trustee, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Securities tendered will be accepted for
payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 45 days nor later
than 60 days following the Change of Control Date, other than as may be
required by law) (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
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(5) that Holders electing to have a Security purchased pursuant to a
Change of Control Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the last page of
the Security completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days 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 Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders new Securities equal in principal
amount to any unpurchased portion of the Securities surrendered. Any Securities
not so accepted shall be promptly mailed by the Company to the Holder thereof.
The Company will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date. The Company
shall 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 securities pursuant to a Change of Control Offer. The
Change of Control Offer shall remain open for at least 20 Business Days and
until the close of business on the Change of Control Payment Date. For purposes
of this Section 4.15, the Trustee shall act as the Paying Agent.
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SECTION 4.16. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Subsidiaries to, consummate any Asset Sale, unless (i) the Company or the
applicable Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value of the assets sold or
otherwise disposed of, (ii) at least 80% of the consideration received by the
Company or such Subsidiary, as the case may be, from such Asset Sale shall be in
the form of cash or Cash Equivalents, (iii) if such Asset Sale involves
Collateral it shall be in compliance with the provisions of this Indenture and
the Collateral Documents, and (iv) the Company or such Subsidiary shall apply
the Net Cash Proceeds of such Asset Sale within 180 days of receipt thereof, as
follows:
(A) first, to the extent such Net Cash Proceeds are received from an
Asset Sale not involving the sale, transfer or disposition of Collateral
("Non-Collateral Proceeds"), to repay (and, in the case of a revolving
credit facility, effect a permanent reduction in the commitment
thereunder) any Indebtedness secured by the assets involved in such Asset
Sale or otherwise required to be repaid with the proceeds thereof
(including repurchasing any Existing Securities required to be repurchased
pursuant to the Existing Indenture), and
(B) second, with respect to any Non-Collateral Proceeds remaining
after application pursuant to the preceding paragraph (A) and any Net Cash
Proceeds received from an Asset Sale involving Collateral (after
repurchasing any Existing Securities required to be repurchased pursuant
to the Existing Indenture) ("Collateral Proceeds" and, together with such
remaining Non-Collateral Proceeds, the "Available Amount"), the Company
shall make an offer to purchase (the "Asset Sale Offer") from all Holders
of Securities, up to a maximum principal amount (expressed as a multiple
of $1,000) of Securities equal to the Available Amount at a purchase price
equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of purchase; provided, however, that
the Company will not be required to apply pursuant to this paragraph (B)
Net Cash Proceeds received from any Asset Sale if, and only to the extent
that, such Net Cash Proceeds are applied to a Related Business Investment
within 180 days of such Asset Sale and, if the Net Cash Proceeds so
invested were Collateral Proceeds, the property and assets constituting
such Related Business Investment and any other non-cash consideration
received as a result of such Asset Sale are made subject to the Lien of
this Indenture and the applicable Collateral Documents pursuant to
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the provisions of this Indenture and the applicable Collateral Documents;
provided, further, that to the extent any such assets subject to an Asset
Sale constituted Collateral, any property and assets constituting a
Related Business Investment and any other non-cash consideration received
as a result of such Asset Sale shall not consist of inventory or
receivables and shall constitute Collateral under the terms hereof and
under the terms of the Collateral Documents; provided, further, that if at
any time any non-cash consideration received by the Company or any
Subsidiary of the Company, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash,
then such conversion or disposition shall be deemed to constitute an Asset
Sale hereunder and the Net Cash Proceeds thereof shall be applied in
accordance with this Section 4.16; and provided, further, that the Company
may defer the Asset Sale Offer until there is an aggregate unutilized
Available Amount equal to or in excess of $5 million resulting from one or
more Asset Sales (at which time the entire unutilized Available Amount,
and not just the amount in excess of $5 million, shall be applied as
required pursuant to this paragraph). To the extent the Asset Sale Offer
is not fully subscribed to by Holders of the Securities, the Company may
obtain a release of the unutilized portion of the Available Amount from
the lien of the Collateral Documents in accordance with Section 11.03.
All Net Cash Proceeds received from the sale of assets constituting Collateral
shall constitute Trust Moneys and shall be delivered by the Company (or the
applicable Subsidiary of the Company) to the Trustee and be deposited in the
Collateral Account in accordance with this Indenture. Net Cash Proceeds so
deposited may be withdrawn from the Collateral Account in accordance with
Section 11.03 or 11.04.
(b) The Company shall provide the Trustee with prompt notice of the
occurrence of an Asset Sale Offer. Such notice shall be accompanied by an
Officers' Certificate setting forth (i) a statement to the effect that the
Company or a Subsidiary of the Company has made an Asset Sale and (ii) the
aggregate principal amount of Securities offered to be purchased and the basis
of calculation in determining such aggregate principal amount.
(c) The notice of an Asset Sale Offer shall be sent, by first class
mail, by the Company (or caused to be mailed by the Company) with a copy to the
Trustee to all Holders of Securities not less than 30 days nor more than 60 days
before the Asset Sale Payment Date at their last registered addresses. The Asset
Sale Offer shall remain open from the time of mailing until three days
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before the Asset Sale Offer Payment Date. The notice to the Holders shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Asset Sale Offer. Such notice shall state:
(1) that the Asset Sale Offer is being made pursuant to Section
4.16;
(2) the purchase price (including an amount of accrued interest) and
the Asset Sale Offer Payment Date;
(3) that any Security not tendered will continue to accrue interest;
(4) that unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest after the Asset Sale Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to
an Asset Sale Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the last page of the
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior to the
Asset Sale Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, no later than two Business Days prior to the Asset
Sale Offer Payment Date, a telegram, telex, facsimile transmission or
letter stating fully the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that if Securities in a principal amount in excess of the
principal amount of the Securities to be acquired pursuant to the Asset
Sale Offer are tendered and not withdrawn pursuant to the Asset Sale
Offer, the Company shall purchase Securities on a pro rata basis (with
such adjustment as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or integral multiples of $1,000
shall be so acquired); and
(8) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered.
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On or before an Asset Sale Offer Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the Asset
Sale Offer (on a pro rata basis if required pursuant to paragraph (7) above),
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price of all Securities or portions thereof so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate identifying the Securities or portions thereof accepted for payment
by the Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders new
Securities equal in principal amount to any unpurchased portion of the
Securities surrendered. Any Securities not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Asset Sale Offer as promptly as practicable
following the Asset Sale Offer Payment Date. The Company shall 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 Securities pursuant to an Asset Sale Offer.
(d) In the event of the transfer of substantially all (but not all)
of the property and assets of the Company and its Subsidiaries as an entirety to
a person in a transaction permitted under Article Five hereof, the successor
corporation shall be deemed to have sold the properties and assets of the
Company and its Subsidiaries not so transferred for purposes of this Section
4.16, and shall comply with the provisions of this covenant with respect to such
deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of
such properties and assets of the Company or its Subsidiaries deemed to be sold
shall be deemed to be Net Cash Proceeds for purposes of this Section 4.16.
SECTION 4.17. Limitation on Sale/leaseback Transactions.
The Company shall not, and shall not permit any of its Subsidiaries
to, enter into any Sale/leaseback. Notwithstanding the foregoing, the Company
and its Subsidiaries may enter into a Sale/leaseback involving only the sale or
transfer of assets acquired after the Issue Date and not constituting Collateral
if (i) after giving pro forma effect to any such Sale/leaseback, the Company
shall be in compliance with Section 4.12, (ii) the sale price in such
Sale/leaseback is at least equal to the Fair Market Value of such property and
(iii) the Company or such Subsidiary shall apply the Net Cash Proceeds of the
sale as provided pursuant to Section 4.16, to the extent required.
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SECTION 4.18. Limitation on Preferred Stock of Subsidiaries.
The Company will not permit any of its Subsidiaries to issue any
Preferred Stock (other than to the Company or to a wholly-owned Subsidiary of
the Company) or permit any person (other than the Company or a wholly-owned
Subsidiary of the Company) to hold any Preferred Stock of any Subsidiary of the
Company.
SECTION 4.19. Future Guarantees.
The Company or any of its wholly-owned Subsidiaries may transfer, in
one transaction or a series of related transactions, any Collateral to any
wholly-owned Subsidiary of the Company, if such transferee wholly-owned
Subsidiary shall (i) execute and deliver to the Trustee a supplemental indenture
in form reasonably satisfactory to the Trustee pursuant to which such
wholly-owned Subsidiary shall unconditionally guarantee on a senior secured
basis (secured by the Collateral so transferred) all of the Company's
obligations under the Securities and this Indenture, (ii) take all necessary
action to cause the Lien of the Collateral Documents on such Collateral in favor
of the Trustee to remain in full force and effect at all times, (iii) deliver to
the Trustee an opinion of counsel that such supplemental indenture and any other
documents required to comply with clause (ii) above have been duly authorized,
executed and delivered by such wholly-owned Subsidiary and the supplemental
indenture and each such other document constitutes a legal, valid, binding and
enforceable obligation of such wholly-owned Subsidiary and (iv) take such
further action and execute and deliver such other documents specified in this
Indenture or otherwise reasonably requested by the Trustee to effectuate the
foregoing.
SECTION 4.20. Impairment of Security Interest.
The Company shall not, and shall not permit any of its Subsidiaries
to, take or omit to take any action, which action or omission might or would
have the result of affecting or impairing the security interest in favor of the
Collateral Agent, on behalf of the Trustee and the Holders, with respect to the
Collateral, and the Company shall not grant to any person (other than the
Collateral Agent on behalf of the Trustee and the Holders) any interest
whatsoever in the Collateral, except, in either case, as expressly permitted by
this Indenture and the Collateral Documents.
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SECTION 4.21. Amendment to Collateral Documents.
The Company will not amend, modify or supplement, or permit or
consent to any amendment, modification or supplement of, the Collateral
Documents in any way which would be adverse to the Holders.
SECTION 4.22. Inspection and Confidentiality.
(a) The Company shall, and shall cause each of its Subsidiaries to,
permit authorized representatives of the Trustee and the Collateral Agent to
visit and inspect the properties of the Company or its Subsidiaries, and any or
all books, records and documents in the possession of the Company relating to
the Collateral, and to make copies and take extracts therefrom and to visit and
inspect the Collateral, all upon reasonable prior notice and at such reasonable
times during normal business hours and as often as may be reasonably requested.
(b) The Trustee and the Collateral Agent and their respective
authorized representatives referred to in Section 4.22(a) agree not to use any
information obtained pursuant to this Section 4.22 for any unlawful purpose and
to keep confidential and not to disclose any such information to any person
except that (i) the recipient of the information may disclose any information
that becomes publicly available other than as a result of disclosure by such
recipient, (ii) the recipient of the information may disclose any information
that its counsel reasonably concludes is necessary to be disclosed by law,
pursuant to any court or administrative order or ruling or in any pending legal
or administrative proceeding or investigation after prior written notice,
reasonable under the circumstances, to the Company, and (iii) the recipient of
the information may disclose any information necessary to be disclosed pursuant
to any provision of the TIA or pursuant to this Indenture.
SECTION 4.23. Release of Released Real Property.
The Company shall have the right to obtain the release of any
Collateral constituting Released Real Property upon the satisfaction of the
conditions precedent set forth in Section 10.03(c) hereof.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.
(a) Other than the Merger, the Company will not, in a single
transaction or through a series of related transactions, (i) consolidate or
merge with or into any other person, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties and assets as an
entirety or substantially as an entirety to another person or group of
affiliated persons or (ii) adopt a Plan of Liquidation, unless, in either case:
(1) either the Company is the surviving or continuing person, or the
person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company as an entirety or substantially as an
entirety are transferred (or, in the case of a Plan of Liquidation, any
person to which assets are transferred) (the Company or such other person
being hereinafter referred to as the "Surviving Person") is a corporation
organized and validly existing under the laws of the United States, any
State thereof or the District of Columbia, and expressly assumes, by an
indenture supplemental hereto, executed and delivered to the Trustee on or
prior to the consummation of such transaction, in form satisfactory to the
Trustee, all the obligations of the Company under the Securities and this
Indenture;
(2) immediately after giving effect to such transaction or series of
transactions on a pro forma basis and the assumption of obligations
contemplated by clause (1) above (including any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or
in respect of such transaction but prior to any purchase accounting
adjustments relating to such transaction), the Consolidated Net Worth of
the Surviving Person would be equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction;
(3) immediately after giving effect to such transaction on a pro
forma basis and the assumption of obligations contemplated by clause (1)
above (including any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction
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and assuming a market rate of interest with respect thereto), the
Surviving Person shall be able to incur $1 of additional Indebtedness
(other than Permitted Indebtedness) under Section 4.12;
(4) immediately before and immediately after giving effect to such
transaction and the assumption of the obligations as set forth in clause
(1) above and the incurrence or anticipated incurrence of any Indebtedness
and Acquired Indebtedness to be incurred in connection therewith, no
Default or Event of Default shall have occurred and be continuing;
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (which counsel shall not be in-house
counsel), each stating that such consolidation, merger, transfer or
adoption and such supplemental indenture, if required, comply with this
Article Five, that the Surviving Person agrees to be bound hereby, and
that all conditions precedent herein provided relating to such transaction
have been satisfied;
(6) the Company has delivered to the Trustee a certificate from its
independent certified public accountants stating that the Company has made
the calculations required by clauses (2) and (3) above in accordance with
the terms of this Indenture; and
(7) none of the Company, any Subsidiary of the Company or the
Surviving Person would thereupon become obligated with respect to any
Indebtedness (including Acquired Indebtedness) nor would any of its assets
or properties become subject to a Lien, unless the Company, any Subsidiary
of the Company or the Surviving Person could incur such Indebtedness
(including Acquired Indebtedness) or create such Lien under this Indenture
(after giving effect to such person being bound by all the terms of this
Indenture).
(b) For purposes of the foregoing, the transfer (by sale,
assignment, lease, conveyance or other disposition, in a single transaction or
series of transactions) of all or substantially all of the properties or assets
of one or more Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the Company
shall be deemed to be the transfer of all or substantially all of the properties
and assets of the Company.
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(c) The Merger shall occur on, or as soon as reasonably practicable
after, the Issue Date (provided that Holdings has no Indebtedness outstanding
other than Indebtedness owing to the Company not to exceed $60 million).
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the Securities
and agrees to be bound hereby and thereby, the predecessor shall be released
from such obligations.
ARTICLE SIX
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Securities when the same becomes due and payable and the Default continues
for a period of 30 days;
(2) the Company defaults in the payment of the stated principal
amount of any Securities when the same becomes due and payable at
maturity, upon acceleration or redemption pursuant to an offer to purchase
required hereunder or otherwise;
(3) the Company fails to comply in all material respects with any of
its other agreements contained in the Securities, this Indenture
(including, without limitation, under Sections 4.15, 4.16 and 5.01) or the
Collateral Documents and to the extent applicable, the Default continues
for the period and after the notice specified below;
(4) there shall be any default or defaults in the payment of
principal or interest under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under
which the Company or any Subsidiary of
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the Company then has outstanding Indebtedness in excess of $7,500,000,
individually or in the aggregate;
(5) there shall be any default or defaults under one or more
agreements, instruments, mortgages, bonds, debentures or other evidences
of Indebtedness under which the Company or any Subsidiary of the Company
then has outstanding Indebtedness in excess of $7,500,000, individually or
in the aggregate, and such default or defaults have resulted in the
acceleration of the maturity of such Indebtedness;
(6) the Company or any of its Subsidiaries fails to perform any
term, covenant, condition or provision of one or more agreements,
instruments, mortgages, bonds, debentures or other evidences of
Indebtedness under which the Company or any of its Subsidiaries then has
outstanding Indebtedness in excess of $7,500,000, individually or in the
aggregate, and such failure to perform results in the commencement of
judicial proceedings to foreclose upon any assets of the Company or any of
its Subsidiaries securing such Indebtedness or the holders of such
Indebtedness shall have exercised any right under applicable law or
applicable security documents to take ownership of any such assets in lieu
of foreclosure;
(7) one or more judgments, orders or decrees for the payment of
money which either individually or in the aggregate at any one time
exceeds $7,500,000 shall be rendered against the Company or any of its
Subsidiaries by a court of competent jurisdiction and shall remain
undischarged and unbonded for a period (during which execution shall not
be effectively stayed) of 60 consecutive days after such judgment becomes
final and nonappealable;
(8) the Company or any Significant Subsidiary of the Company (A)
admits in writing its inability to pay its debts generally as they become
due, (B) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (C) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (D) consents to the appointment of a Custodian of it or
for substantially all of its property, (E) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(F) makes a general assignment for the benefit of its creditors, or (G)
takes any corporate action to authorize or effect any of the foregoing;
(9) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any
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Significant Subsidiary of the Company in an involuntary case or proceeding
under any Bankruptcy Law, which shall (A) approve as properly filed a
petition seeking reorganization, arrangement, adjustment or composition in
respect of the Company or any Significant Subsidiary of the Company, (B)
appoint a Custodian of the Company, or any Significant Subsidiary of the
Company or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(10) any Collateral Document (other than the Intercreditor
Agreement) ceases to be in full force and effect or any person acting on
behalf of the Company shall deny or disaffirm its obligations under any
Collateral Document or the secured obligations under the Collateral
Documents cease to be secured by a perfected security interest in any
portion of the Collateral purported to be pledged under the Collateral
Documents with respect thereto (other than in accordance with the terms
thereof).
A Default under clause (3) above (other than in the case of any
Default under Sections 4.15, 4.16, 4.17 and 5.01, which Defaults shall be Events
of Default without the notice and without the passage of time specified in this
paragraph) is not an Event of Default until the Trustee notifies the Company, or
the Holders of at least 25% in principal amount of the outstanding Securities
notify the Company and the Trustee of the Default, and the Company does not cure
the Default within 30 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default." Such notice shall be given by the Trustee if so requested by the
Holders of at least 25% in principal amount of the Securities then outstanding.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(8) or (9)) occurs and is continuing, the Trustee may, by notice to
the Company, or the Holders of at least 25% in principal amount of the
Securities then outstanding may, by written notice to the Company and the
Trustee, and the Trustee shall, upon the request of such Holders, declare the
aggregate principal amount of the Securities outstanding, together with accrued
but unpaid interest thereon to the date of payment, to be due and payable and,
upon any such declaration, the same shall become and be due and payable;
provided, however, that the Trustee shall be under no obligation to follow any
request of any of the
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Holders unless such Holders shall have offered to the Trustee, after request by
the Trustee, reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request, order
or direction. If an Event of Default specified in Section 6.01(8) or (9) as to
the Company occurs, all unpaid principal, premium, if any, and accrued interest
on the Securities then outstanding shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Securityholder. Upon payment of such principal amount and interest, all
of the Company's obligations under the Securities and this Indenture, other than
obligations under Section 7.07, shall terminate. The Holders of a majority in
principal amount of the Securities then outstanding by notice to the Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default, other than the non-payment of the principal and interest on the
Securities which have become due solely by such declaration of acceleration,
have been cured or waived, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, and (iii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction. No such rescission shall affect any
subsequent default or impair any right consequent thereto. In the event that a
declaration of acceleration under either Section 6.01(4) or 6.01(5) above has
occurred and is continuing, such declaration of acceleration shall be
automatically annulled if the Indebtedness that is the subject of such Event of
Default has been discharged or paid or the holders of such Indebtedness shall
have rescinded their declaration of acceleration in respect of such Indebtedness
within 60 days thereafter and no other Event of Default has occurred during such
60-day period which has not been cured or waived.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture and may
instruct the Collateral Agent to take any action under the Collateral Documents
as may be required or permitted thereunder.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an
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Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (1) and (2) of Section 6.01 or in respect of any provision hereof
which cannot be modified or amended without the consent of the Holder so
affected pursuant to Section 9.02. When a Default or Event of Default is so
waived, it shall be deemed cured and cease to exist.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it including, without limitation, any remedies provided for in
Section 6.03. Subject to Section 7.01, however, the Trustee may refuse to follow
any direction that conflicts with any law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) Holders of at least 25% in principal amount of the outstanding
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee reasonable indemnity against
any loss, liability or expense to be incurred in compliance with such
request;
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(4) the Trustee does not comply with the request within 30 days
after receipt of the request and the offer of satisfactory indemnity; and
(5) during such 30-day period the Holders of a majority in principal
amount of the outstanding Securities do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder except to the extent
that the institution or prosecution of such suit or the entry of judgment
therein would, under applicable law, result in the surrender, impairment, waiver
or loss of the Lien of this Indenture and the Collateral Documents upon the
Collateral.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of principal
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest, in each case at the rate per annum borne by
the Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
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Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07 and then to
the Collateral Agent for amounts due under the Collateral Documents;
Second: to Holders for interest accrued on the Securities, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities for interest;
Third: to Holders for principal amounts owing under the Securities
and other amounts owing to the Holders with respect to the Securities,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal and other amounts
owing to the Holders with respect to the Securities; and
Fourth: to the Company or any other obligor on the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
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SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
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determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree with the Company. Assets
held in trust by the Trustee need not be segregated from other assets except to
the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 12.04 and 12.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon reasonable
notice to the Company, to examine the books, records, and premises of the
Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request,
order or direction.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, any
Subsidiary of the Company or their respective Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Securityholder, as
their names and addresses appear on the Securityholder list described in Section
2.05, notice of the uncured Default or Event of Default within 90 days after the
Trustee obtains actual knowledge that such Default or Event of Default has
occurred. Except in the case of a Default or an Event of Default in payment of
principal of, or interest on, any Security, and a Default that resulted from the
failure to comply with Sections 4.15, 4.16 or 5.01, the Trustee may withhold the
notice if and so long as its board of directors, the executive committee of its
board of directors or a committee of its directors and/or Trust Officers in good
faith determines that withholding the notice is in the interest of the
Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of this Indenture
until this Indenture is qualified under the TIA, and, until such qualification,
this Indenture shall be construed as if this Section 7.06 were not contained
herein.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of the
events described in TIA ss. 313(a) occurred within the previous twelve months,
but not otherwise, mail to each Securityholder a brief report dated as of such
May 15 that complies with TIA ss. 313(a). The Trustee also shall comply with TIA
xx.xx. 313(b) and 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become listed
on any securities exchange.
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SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services as the Company and the Trustee may agree. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all tax obligations imposed on the Trustee related to this Indenture
and all reasonable out-of-pocket expenses incurred or made by it. Such expenses
shall include the reasonable fees and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee and its agents for, and hold
them harmless against, any loss, liability or expense incurred by them except
for such actions to the extent caused by any negligence or bad faith on their
part, arising out of or in connection with the administration of this trust
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their rights, powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity, but the Trustee's failure to so notify the Company shall not affect
the Company's obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel;
provided that the Company will not be required to pay such fees and expenses if
it assumes the Trustee's defense and there is no conflict of interest between
the Company and the Trustee in connection with such defense as reasonably
determined by the Trustee. The Company need not pay for any settlement made
without its written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(8) or (9) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the Company and the Trustee and may appoint a successor
trustee with the Company's consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Any resignation or removal of the Trustee pursuant to this Indenture
shall be deemed to be a resignation or removal of
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the Trustee in its capacity as Collateral Agent under the Collateral Documents
and any appointment of a successor Trustee pursuant to this Indenture shall be
deemed to be appointment of a successor Collateral Agent under the Collateral
Documents and such successor shall assume all of the obligations of the Trustee
in its capacity as Collateral Agent under the Collateral Documents.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA xx.xx. 310(a)(1) and 310(a)(5). The Trustee (or in the case
of a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA ss. 310(a)(2). The Trustee shall
comply with TIA ss. 310(b); provided, however, that there shall be excluded from
the operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations.
The Company may terminate its obligations under the Securities and
this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Securities previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid and Securities for whose payment money has heretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been delivered to the
Trustee for cancellation and the Company has paid all sums payable by it
hereunder, or if:
(a) pursuant to Article Three, the Company shall have given notice
to the Trustee and mailed a notice of redemption to each Holder of the
redemption of all of the Securities under arrangements satisfactory to the
Trustee for the giving of such notice;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, money or direct non-callable
obligations of, or non-callable obligations guaranteed by, the United
States of America for the payment of which guarantee or obligation the
full faith and credit of the United States is pledged ("U.S. Government
Obligations") maturing as to principal and interest in such amounts and at
such times as are sufficient without consideration of any reinvestment of
such interest, to pay principal of and interest on the outstanding
Securities to redemption as certified to the Trustee by a nationally
recognized firm of independent public accountants designated by the
Company; provided that the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government Obligations to
the payment of said principal and interest with respect to the Securities;
and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of
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the Company's obligation under the Securities and this Indenture have been
complied with.
Notwithstanding the foregoing paragraph, the Company's obligations
in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 7.08, 8.04 and 8.05 shall
survive until the Securities are no longer outstanding. After the Securities are
no longer outstanding, the Company's obligations in Sections 7.07, 8.04 and 8.05
shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Securities and this Indenture except for those surviving obligations
specified above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either paragraph (b) or paragraph
(c) below be applied to the outstanding Securities upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "legal defeasance"). For this purpose, such legal defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of paragraph (e) below and
the other Sections of and matters under this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of and interest on such Securities when such payments
are due, (ii) the Company's obligations with respect to such Securities under
Sections 2.05, 2.06, 2.07, 2.08, 4.02, 7.07, 7.08, 8.04 and 8.05, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Section 8.02. Subject to compliance with this Section 8.02, the Company may
exercise its
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option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article Five and in
Sections 4.03, 4.07, 4.09 and 4.11 through 4.22 with respect to the outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the outstanding Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal of and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge
principal of, premium, if any, and interest on the outstanding Securities
on the Maturity Date of such principal or installment of principal or
interest in
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accordance with the terms of this Indenture and of such Securities;
provided, however, that the Trustee (or other qualifying trustee) shall
have received an irrevocable written order from the Company instructing
the Trustee (or other qualifying trustee) to apply such money or the
proceeds of such U.S. Government Obligations to said payments with respect
to the Securities;
(ii) no Default or Event of Default or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Securities shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 6.01(8) and (9) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (y) since the date of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of such legal defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred;
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(vi) in the case of an election under either paragraph (b) or (c)
above, an Opinion of Counsel to the effect that, (x) the trust funds will
not be subject to any rights of any other holders of Indebtedness of the
Company, and (y) after the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable Bankruptcy Law;
provided, however, that if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the Company,
no opinion needs to be given as to the effect of such laws on the trust
funds except the following: (A) assuming such trust funds remained in the
Trustee's possession prior to such court ruling to the extent not paid to
Holders of Securities, the Trustee will hold, for the benefit of the
Holders of Securities, a valid and enforceable security interest in such
trust funds that is not avoidable in bankruptcy or otherwise, subject only
to principles of equitable subordination, (B) the Holders of Securities
will be entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used, and (C) no property, rights in
property or other interests granted to the Trustee or the Holders of
Securities in exchange for or with respect to any of such funds will be
subject to any prior rights of any other Person, subject only to prior
Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code
(or any section of any other Bankruptcy Law having the same effect), but
still subject to the foregoing clause (B); and
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (A) all
conditions precedent provided for relating to either the legal defeasance
under paragraph (b) above or the covenant defeasance under paragraph (c)
above, as the case may be, have been complied with and (B) if any other
Indebtedness of the Company shall then be outstanding, such legal
defeasance or covenant defeasance will not violate the provisions of the
agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this paragraph (e), the "Trustee") pursuant to
paragraph (d) above in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (other than the Company or any of its Affiliates) as the Trustee
may determine, to the Holders of such
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Securities of all sums due and to become due thereon in respect of principal and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Securities.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.01 and 8.02, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
SECTION 8.04. Repayment to Company.
Subject to Sections 7.07, 8.01 and 8.02, the Trustee shall promptly
pay to the Company, upon receipt by the Trustee of an Officers' Certificate, any
excess money, determined in accordance with Sections 8.02(d)(i) and (e), held by
it at any time. The Trustee and the Paying Agent shall pay to the Company upon
receipt by the Trustee or the Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of principal or interest that
remains unclaimed for two years; provided, however, that the Trustee and the
Paying Agent before being required to make any payment may, but need not, at the
expense of the Company, cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such publication or
mailing, any
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unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Securityholders entitled to money must look solely
to the Company for payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of the Trustee or
Paying Agent with respect to such money shall thereupon cease.
SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
and only then the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had been made pursuant to
this Indenture until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with this Indenture;
provided, however, that if the Company has made any payment of interest on or
principal of any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
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(4) to make any other change that does not materially adversely
affect the rights of any Securityholders hereunder or under the Collateral
Documents;
(5) to comply with any requirements of the SEC in connection with
the qualification of this Indenture under the TIA; or
(6) to provide for future guarantees as provided by Section 4.19;
provided that the Company has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of the outstanding
Securities, may amend or supplement this Indenture or the Securities, without
notice to any other Securityholders. Subject to Section 6.07, the Holder or
Holders of a majority in aggregate principal amount of the outstanding
Securities may waive compliance by the Company with any provision of this
Indenture or the Securities without notice to any other Securityholder. However,
without the consent of each Securityholder affected, no amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or the Collateral Documents;
(2) reduce the rate of, or extend the time for payment of, interest,
including defaulted interest, on any Security;
(3) reduce the principal amount of any Security or any premium
thereon;
(4) change the Maturity Date of any Security, or alter the
redemption provisions or the repurchase provisions in this Indenture, the
Securities or the Collateral Documents in a manner adverse to any Holder;
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(5) waive a default in the payment of the principal of, interest on,
or redemption payment or repurchase payment required hereunder with
respect to, any Security, including without limitation, a failure to make
payment when required upon a Change of Control or after an Asset Sale;
(6) make any changes in any provisions relating to waivers of
defaults, the ability of the Holders to enforce their rights under this
Indenture, the Securities, the Collateral Documents or this Section 9.02;
(7) make the principal of, or the interest on any Security payable
in money other than as provided for in this Indenture and the Securities
as in effect on the date hereof;
(8) affect the ranking of the Securities in a manner adverse to the
Holders or release all or substantially all of the Collateral; or
(9) after the Company's obligation to purchase the Securities arises
thereunder, amend, modify or change the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of
Control or an Asset Sale Offer in the event of an Asset Sale or waive any
default in the performance thereof or modify any of the provisions or
definitions with respect to any such offers.
In addition to the foregoing, except as expressly permitted by this
Indenture (including, without limitation, in Sections 10.03, 10.04 and 10.05),
no portion of the Collateral may be released without the consent of the Holders
of at least 75% in aggregate principal amount of the then outstanding
Securities.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
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SECTION 9.03. Compliance with TIA.
From the date on which the Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver. Notwithstanding the above, nothing in
this paragraph shall impair the right of any Securityholder under ss. 316(b) of
the TIA.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to revoke any consent previously given, whether or not such
persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (9) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to
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the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or issue a new Security shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture.
ARTICLE TEN
COLLATERAL DOCUMENTS
SECTION 10.01. Collateral and Collateral Documents.
(a) In order to secure the due and punctual payment of principal of
and interest on the Securities when and as the same shall be due and payable,
whether on an Interest Payment Date, at maturity, by acceleration, repurchase,
redemption or otherwise, and interest on the overdue principal of and interest
(to the extent permitted by law), if any, on the Securities and performance of
all other obligations of the Company to the Holders or the Trustee under this
Indenture and the Securities, the Company and the Collateral Agent have
simultaneously with the execution of this Indenture entered into the Collateral
Documents, pursuant to which the Company has granted to the Collateral Agent for
the benefit of the Trustee and the Holders a second priority Lien on and
security interest in the Collateral (such Lien ranking junior in priority only
to the existing Lien on the Collateral for the benefit of the holders of any
outstanding Existing Securities). In addition, such second priority Lien granted
to the Collateral Agent will be pari passu with the Lien granted to the trustee
of the VEBA Trust pursuant to the VEBA Mortgage and the VEBA Security Agreement;
provided that at such time as no Existing Securities remain outstanding, the
security interest in the Collateral granted to the
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Collateral Agent for the benefit of the Trustee and the Holders shall become a
first priority Lien and the Lien granted to the VEBA Trustee pursuant to the
VEBA Mortgage and the VEBA Security Agreement shall remain a second priority
Lien, junior in priority to the Lien created by the Collateral Documents. The
Collateral Agent and the Company hereby agree that the Collateral Agent holds
the Collateral as a secured party or mortgagee, as the case may be, in trust for
the benefit of the Trustee, in its capacity as trustee, and for the ratable
benefit of the Holders pursuant to the terms of the Collateral Documents. The
Collateral Agent is authorized and directed to enter into each of (i) the
Intercreditor Agreement and (ii) the VEBA Intercreditor Agreement.
(b) Each Holder, by accepting a Security, consents and agrees to all
of the terms and provisions of the Collateral Documents, as the same may be in
effect from time to time or may be amended from time to time in accordance with
the provisions of the Collateral Documents and this Indenture, and authorizes
and directs the Collateral Agent to act as mortgagee or secured party with
respect thereto.
(c) As set forth in and governed by the Collateral Documents, as
among the Holders of Securities, the Collateral as now or hereafter constituted
shall be held for the equal and ratable benefit of the Holders of the Securities
without preference, priority or distinction of any thereof over any other by
reason of difference in time of issuance, sale or otherwise, as security for the
Securities.
SECTION 10.02. Recording; Priority; Opinions, Etc.
(a) The Company shall at its sole cost and expense perform any and
all acts and execute any and all documents (including, without limitation, the
execution, amendment or supplementation of any financing statement and
continuation statement or other statement) for filing under the provisions of
the UCC and the rules and regulations thereunder, or any other statute, rule or
regulation of any applicable federal, state or local jurisdiction, including any
filings in local real estate land record offices, which are necessary or
advisable and shall do such other acts and execute such other documents as may
be required under any of the Collateral Documents, from time to time, in order
to grant, perfect and maintain in favor of the Collateral Agent for the benefit
of the Trustee and the Holders a valid and perfected Lien on the Collateral with
the priority set forth in Section 10.01(a), subject only to the Liens permitted
by the Collateral Documents and to fully preserve and protect the rights of the
Trustee and the Holders under this Indenture.
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The Company shall from time to time promptly pay and satisfy all
mortgage and financing and continuation statement recording and/or filing fees,
charges and taxes relating to this Indenture and the Collateral Documents, any
amendments thereto and any other instruments of further assurance. Without
limiting the generality of the foregoing covenant, in the event at any time the
Collateral Agent or the Trustee shall determine that additional mortgage
recording, transfer or similar taxes are required to be paid to perfect or
continue any Lien on any Collateral, the Company shall pay such taxes promptly
upon demand by the Collateral Agent or the Trustee.
(b) The Company shall, with respect to (i) below, promptly after the
initial issuance of the Securities, and with respect to (ii) below, upon
qualification of this Indenture under the TIA, furnish to the Trustee:
(i) Opinion(s) of Counsel either (a) to the effect that, in the
opinion of such counsel, this Indenture and the grant of a security
interest in the Collateral intended to be made by the Collateral Documents
and all other instruments of further assurance, including, without
limitation, financing statements, have been properly recorded and filed to
the extent necessary to perfect the Lien on the Collateral created by the
Collateral Documents and reciting the details of such action, and stating
that as to the Liens created pursuant to the Collateral Documents, such
recordings and filings are the only recordings and filings necessary to
give notice thereof and that no re-recordings or refilings are necessary
to maintain such notice (other than as stated in such opinion), or (b) to
the effect that, in the opinion of such counsel, no such action is
necessary to perfect such Lien;
(ii) on January 1 in each year beginning with January 1, 1998, an
Opinion of Counsel, dated as of such date, either (a) to the effect that,
in the opinion of such counsel, such action has been taken with respect to
the recordings, registerings, filings, re-recordings, re-registerings and
refilings of all financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien of
each of the Collateral Documents and reciting with respect to such Liens
the details of such action or referencing prior Opinions of Counsel in
which such details are given, and stating that all financing statements
and continuation statements have been executed and filed that are
necessary fully to preserve and protect the rights of the Holders and the
Trustee hereunder and under each of the Collateral Documents with respect
to the Liens, or (b) to the
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effect that, in the opinion of such counsel, no such action is necessary
to maintain such Liens.
SECTION 10.03. Release of Collateral.
Except as otherwise permitted by Sections 10.04 and 10.05, the
Collateral Agent shall not release Collateral from the Lien of the Collateral
Documents unless such release is in accordance with the provisions of this
Section 10.03 and of the Collateral Documents. To the extent applicable, the
Company shall cause TIA ss. 314(d) relating to the release of property or Liens
to be complied with.
(a) Satisfaction and Discharge; Defeasance. The Company shall be
entitled to obtain a full release of all of the Collateral from the Lien
of this Indenture and the Collateral Documents upon compliance with all of
the conditions precedent for satisfaction and discharge of this Indenture
set forth in Section 8.01 or for defeasance pursuant to Section 8.02. Upon
delivery by the Company to the Trustee and to the Collateral Agent of an
Officers' Certificate and an Opinion of Counsel, each to the effect that
all of the conditions precedent have been complied with (which may be the
same Officers' Certificate and Opinion of Counsel required by Article
Eight), the Trustee shall take all necessary action, at the request and
expense of the Company, to release and reconvey to the Company all of the
Collateral, and shall deliver such Collateral in its possession to the
Company including, without limitation, the execution and delivery of
releases or waivers whenever necessary.
(b) Sales of Collateral Permitted by Section 4.16. The Company shall
be entitled to obtain a release of all or any part of the Collateral
(other than Trust Moneys) (the "Released Assets") subject to an Asset Sale
upon compliance with the condition precedent that the Company shall have
delivered to the Trustee and to the Collateral Agent the following:
(i) Release Notice. A notice (each, an "Asset Sale Release
Notice"), which shall (A) refer to this Section 10.03, (B) attach
all the documents referred to below, (C) describe with particularity
the Released Asset, (D) specify the value of such Released Asset on
a date within 60 days of the Asset Sale Release Notice (the
"Valuation Date"), (E) certify that the purchase price received is
equal to the Fair Market Value of the Released Asset as of the date
of such release, (F) state
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that the Released Asset will not interfere with or impede the
Trustee's ability to realize the value of the remaining Collateral
and will not impair the maintenance and operation of the remaining
Collateral, (G) confirm the sale of, or an agreement to sell, such
Released Interest in a bona fide sale to a Person that is not an
Affiliate of the Company or, in the event that such sale is to an
Affiliate, confirm that such sale is being made in accordance with
Section 4.11, (H) be accompanied by a counterpart of the instruments
proposed to give effect to the release fully executed and
acknowledged (if applicable) by all parties thereto other than the
Collateral Agent;
(ii) Officers' Certificate and Opinion of Counsel. An
Officers' Certificate and an Opinion of Counsel, each stating that
(A) such Asset Sale covers only the Released Asset and complies with
the terms and conditions of an Asset Sale pursuant to Section 4.16,
(B) all Net Cash Proceeds from the sale of the Released Asset will
be applied pursuant to Section 4.16, (C) there is no Default or
Event of Default in effect or continuing on the date thereof, (D)
the release of the Released Asset will not result in a Default or
Event of Default and (E) all conditions precedent to such release
have been complied with;
(iii) Regarding Real Property. If the Released Asset is only a
portion of a discrete parcel of Real Property, evidence that a title
company shall have committed to issue an endorsement to the title
insurance policy relating to the affected Mortgaged Property
confirming that after such release, the Lien of the applicable
Mortgage continues unimpaired as a perfected Lien having the
priority set forth in Section 10.01(a) upon the remaining Mortgaged
Property subject only to Prior Liens;
(iv) Proceeds of Asset Sale. The Net Cash Proceeds and other
non-cash consideration received from the Asset Sale required to be
delivered to the Trustee pursuant to Section 4.16; and
(v) Other Documents. Upon qualification of this Indenture
under the TIA, all documentation required by TIA ss. 314(d).
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(c) Release of Real Property Permitted by Section 4.23. The Company
shall be entitled to obtain a release of any part of the Collateral
constituting Released Real Property upon compliance with the condition
precedent that the Company shall have delivered to the Trustee and to the
Collateral Agent the following:
(i) Release Notice. A notice (each, a "Real Property Release
Notice") which shall (A) refer to this Section 10.03, (B) attach all
the documents referred to below, (C) describe with particularity the
Released Real Property, (D) specify the value of such Released Real
Property on a date within 60 days of the Real Property Release
Notice (the "Real Property Valuation Date"), (E) state that the
Released Real Property will not interfere with or impede the
Trustee's ability to realize the value of the remaining Collateral,
is not necessary for the proper and efficient operation of the
Mortgaged Property or for the compliance by the Mortgaged Property
with any applicable law, code or ordinance, including, without
limitation, any Environmental Law, and is not an integral part of
the Company's operations as conducted at the Mortgaged Property on
the Issue Date, and (F) be accompanied by a counterpart of the
instruments proposed to give effect to the release fully executed
and acknowledged (if applicable) by all parties thereto other than
the Collateral Agent;
(ii) Officers' Certificate and Opinion of Counsel. An
Officers' Certificate and an Opinion of Counsel, each stating that
(A) there is no Default or Event of Default in effect or continuing
on the date thereof, (B) the Real Property to be released
constitutes Released Real Property, (C) the release of the Released
Real Property will not result in a Default or Event to Default and
(D) all conditions precedent to such release have been complied
with;
(iii) Title Insurance. Evidence that a title company shall have
committed to issue an endorsement to the title insurance policy
relating to the affected Mortgaged Property confirming that after
such release, the Lien of the applicable Mortgage continues
unimpaired as a perfected Lien with the priority set forth in
Section 10.01(a) hereof upon the remaining Mortgaged Property,
subject only to Prior Liens; and
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(iv) Other Documents. Upon qualification of this Indenture
under the TIA, all documentation required by TIA ss. 314(d).
Upon compliance with the conditions set forth in (b) or (c) above,
and the delivery by the Company of such other documents that the Trustee or the
Collateral Agent may reasonably require, the Collateral Agent shall execute,
acknowledge (if applicable) and deliver to the Company such counterpart within
10 Business Days after receipt by the Trustee of an Asset Sale Release Notice or
Real Property Release Notice, as applicable, and the satisfaction of the
applicable requirements of this Section 10.03.
At any time when a Default or an Event of Default shall have
occurred and be continuing, no release of Collateral pursuant to the provisions
of this Indenture or the Collateral Documents shall be effective as against the
Holders of the Securities.
SECTION 10.04. Disposition of Collateral Without Release.
(a) So long as no Default or Event of Default shall have occurred
and be continuing, the Company may, without any release or consent by the
Collateral Agent or the Trustee, sell or otherwise dispose of any machinery,
equipment, furniture, apparatus, tools or implements or other similar property
which at such time is subject to the Lien of the Collateral Documents, which may
have become worn out or obsolete, not exceeding individually, in Fair Market
Value, $250,000, subject in all cases to the requirements of and restrictions
contained in the TIA.
(b) In the event that the Company has sold, exchanged, or otherwise
disposed of or proposes to sell, exchange or otherwise dispose of any portion of
the Collateral which under the provisions of this Section 10.04 may be sold,
exchanged or otherwise disposed of by the Company without any release or consent
of the Collateral Agent or the Trustee, and the Company requests the Collateral
Agent or the Trustee to furnish a written disclaimer, release or quitclaim of
any interest in such property under any of the Collateral Documents, the
Collateral Agent shall promptly execute (or, if so requested by the Company,
shall promptly instruct the Trustee to execute) such an instrument upon delivery
to the Trustee of (i) an Officers' Certificate by the Company reciting the sale,
exchange or other disposition made or proposed to be made and describing in
reasonable detail the property affected thereby, and stating and demonstrating
that such property is property which by the provisions of this Section 10.04 may
be sold, exchanged or otherwise disposed of or dealt with by the Company without
any release or consent of the Collateral Agent or the Trustee and
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(ii) an Opinion of Counsel stating that the sale, exchange or other disposition
made or proposed to be made was duly made by the Company in conformity with
Section 10.04(a) and that the execution of such written disclaimer, release or
quitclaim is appropriate to confirm the propriety of such sale, exchange or
other disposition under this Section 10.04. Notwithstanding the preceding
sentence, all purchasers and grantees of any property or rights purporting to be
released herefrom shall be entitled to rely upon any release executed by the
Collateral Agent or the Trustee hereunder as sufficient for the purposes of this
Indenture.
SECTION 10.05. Eminent Domain and Other Governmental Takings.
Subject to the provisions of the Collateral Documents, upon the
occurrence of a Taking or should any of the Collateral be sold pursuant to the
exercise by the United States of America or any State, municipality or other
governmental authority of any right which any of them may then have to purchase,
or to designate a purchaser or to order a sale of, all or any part of the
Collateral, the Trustee shall release the property subject to such Taking or
purchase, but only upon receipt by the Trustee of the following:
(a) an Officers' Certificate stating that a Taking has occurred with
respect to such property and the amount of the Net Award therefor, or that
such property has been sold pursuant to a right vested in the United
States of America or a state, municipality or other governmental authority
to purchase, or to designate a purchaser or order a sale of such property
and the amount of the proceeds of such sale, and that all conditions
precedent herein provided for relating to such release have been complied
with;
(b) any Net Award, to be held as Trust Moneys subject to the
disposition thereof pursuant to Article Eleven and the applicable
Collateral Documents; provided, however, that in lieu of all or any part
of such Net Award, the Company shall have the right to deliver to the
Trustee a certificate of the trustee, mortgagee or other holder of a Prior
Lien on all or any part of the property to be released, stating that such
Net Award, or a specified portion thereof, has been deposited with such
trustee, mortgagee or other holder pursuant to the requirements of such
Prior Lien, in which case the balance of the award, if any, shall be
delivered to the Trustee; and
(c) an Opinion of Counsel substantially to the effect:
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(i) that a Taking has occurred with respect to such property
or such property has been sold pursuant to the exercise of a right
vested in the United States of America or a State, municipality or
other governmental authority to purchase, or to designate a
purchaser or order a sale of, such property;
(ii) in the case of any Taking, that the Net Award for the
property so taken has become final or that the Board of Directors of
the Company has determined that an appeal from such award is not
advisable in the interests of the Company or the Holders of the
Securities;
(iii) in the case of any such sale, that the amount of the
proceeds of the property so sold is not less than the amount to
which the Company is legally entitled under the terms of such right
to purchase or designate a purchaser, or under the order or orders
directing such sale, as the case may be;
(iv) in the event that, pursuant to Section 10.05(b), the Net
Award for such property or the proceeds of such sale, or a specified
portion thereof, shall be certified to have been deposited with the
trustee, mortgagee or other holder of a Prior Lien, that the
property to be released, or a specified portion thereof, is or
immediately before such Taking or purchase was subject to such Prior
Lien, and that such deposit is required by such Prior Lien; and
(v) that the instrument or the instruments and the Net Award
or proceeds of such sale which have been or are therewith delivered
to and deposited with the Trustee conform to the requirements of
this Indenture and any of the Collateral Documents and that, upon
the basis of such application, the Collateral Agent and the Trustee
are permitted by the terms hereof and of the Collateral Documents to
execute and deliver the release requested, and that all conditions
precedent herein provided for relating to such release have been
complied with.
In any proceedings for the Taking or purchase or sale of any part of
the Collateral, by eminent domain or by virtue of any such right to purchase or
designate a purchaser or to order a sale, the Trustee may be represented by
counsel who may be counsel for the Company. Subject to the provisions of the
Collateral Documents, all cash or Cash Equivalents received by the Trustee
pursuant to this Section 10.05 shall be held by the Trustee as
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Trust Moneys under Article Eleven subject to application as therein provided.
Subject to the provisions of the Collateral Documents, all purchase money and
other obligations received by the Trustee pursuant to this Section 10.05 shall
be held by the Trustee as Collateral subject to application as provided in
Section 10.13.
SECTION 10.06. Trust Indenture Act Requirements.
The release of any Collateral, whether pursuant to any provision of
this Article Ten or Article Eleven, from any of the Collateral Documents or the
release of, in whole or in part, the Liens created by any of the Collateral
Documents, will not be deemed to impair the Lien of the Collateral Documents in
contravention of the provisions hereof if and to the extent the Collateral or
Liens are released pursuant to the applicable Collateral Documents and pursuant
to the terms hereof. The Trustee and each of the Holders acknowledge that a
release of Collateral or Liens strictly in accordance with the terms of the
Collateral Documents and the terms hereof will not be deemed for any purpose to
be an impairment of the Liens created pursuant to the Collateral Documents in
contravention of the terms of this Indenture. Without limitation, the Company
and each other obligor on the Securities shall cause TIA ss. 314(d) relating to
the release of property or securities from the Liens of each hereof and of the
Collateral Documents to be complied with. Any certificate or opinion required by
TIA ss. 314(d) may be made by an officer of the Company, except in cases which
TIA ss. 314(d) requires that such certificate or opinion be made by an
independent person.
SECTION 10.07. Suits To Protect Collateral.
Subject to the provisions of the Collateral Documents, the Trustee
shall have power to institute and to maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Collateral by any acts which
may be unlawful or in violation of any of the Collateral Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the Collateral or be prejudicial to the interests of the Holders or
the Trustee).
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SECTION 10.08. Purchaser Protected.
In no event shall any purchaser in good faith of any property
purported to be released hereunder be bound to ascertain the authority of the
Collateral Agent or the Trustee to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article Ten to be sold be
under obligation to ascertain or inquire into the authority of the Company to
make any such sale or other transfer.
SECTION 10.09. Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or
trustee, lawfully appointed, the powers conferred in this Article Ten upon the
Company with respect to the release, sale or other disposition of such property
may be exercised by such receiver or trustee, and an instrument signed by such
receiver or trustee shall be deemed the equivalent of any similar instrument of
the Company or of any officer or officers thereof required by the provisions of
this Article Ten.
SECTION 10.10. Determinations Relating to Collateral.
In the event (i) the Trustee or the Collateral Agent shall receive
any written request from the Company under any Collateral Document for consent
or approval with respect to any matter or thing relating to any Collateral or
the Company's obligations with respect thereto (including, without limitation,
the determination as to whether any portion of the Collateral constitutes
Released Collateral) or (ii) there shall be due to or from the Trustee or the
Collateral Agent under the provisions of any Collateral Document any performance
or the delivery of any instrument or (iii) the Trustee or the Collateral Agent
shall become aware of any nonperformance by the Company of any covenant or any
breach of any representation or warranty of the Company set forth in any
Collateral Document, then, in each such event, the Trustee or the Collateral
Agent, as applicable, shall be entitled to hire experts, consultants, agents and
attorneys to advise the Trustee on the manner in which the Trustee should
respond to such request or render any requested performance or response to such
nonperformance or breach. The Trustee shall be fully protected in the taking of
any action recommended or approved by any such expert, consultant, agent or
attorney or agreed to by a majority of Holders pursuant to Section 6.05.
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SECTION 10.11. Form and Sufficiency of Release.
In the event that the Company has sold, exchanged, or otherwise
disposed of or propose to sell, exchange or otherwise dispose of any portion of
the Collateral which under the provisions of Sections 10.03 and 10.05 may be
sold, exchanged or otherwise disposed of by the Company, and the Company
requests the Trustee or the Collateral Agent to furnish a written disclaimer,
release or quitclaim of any interest in such property under any of the
Collateral Documents, the Collateral Agent shall promptly execute (or, if so
requested by the Company, shall promptly instruct the Trustee to execute) such
an instrument promptly after satisfaction of the conditions set forth herein for
delivery of such release. Notwithstanding the preceding sentence, all purchasers
and grantees of any property or rights purporting to be released herefrom shall
be entitled to rely upon any release executed by the Trustee hereunder as
sufficient for the purposes of this Indenture and as constituting a good and
valid release of the property therein described from the Lien of this Indenture
and the Collateral Documents.
SECTION 10.12. Possession and Use of Collateral.
Subject to and in accordance with the provisions of this Indenture
and the Collateral Documents, so long as no Default or Event of Default shall
have occurred and be continuing, the Company shall have the right to remain in
possession and retain exclusive control of the Collateral, to operate, manage,
develop, use and enjoy the Collateral and to collect, receive, use, invest and
dispose of the reversions, remainders, rates, interest, rents, issues, profits,
revenues, proceeds and other income thereof (other than Trust Moneys).
SECTION 10.13. Disposition of Obligations Received.
All purchase money or other obligations received by the Trustee
under this Article Ten shall be held by the Trustee, as a part of the
Collateral. Upon payment in cash or Cash Equivalents by or on behalf of the
Company or the obligor thereof to the Trustee of the entire unpaid principal
amount of any such obligation, to the extent not constituting Net Cash Proceeds
from an Asset Sale which may possibly be required, through the passage of time
or otherwise, to be used to purchase Securities pursuant to Section 4.16, the
Trustee shall promptly release and transfer such obligation and any mortgage
securing the same upon receipt of any documentation that the Trustee may
reasonably require. Any cash or Cash Equivalents received by the Trustee in
respect of the principal of any such obligations shall be held by the Trustee as
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Trust Moneys under Article Eleven subject to application as therein provided.
Unless and until the Securities are accelerated pursuant to Section 6.02, all
interest and other income on any such obligations, when received by the Trustee,
shall be paid to the Company from time to time in accordance with Section 11.07.
If the Securities have been accelerated pursuant to Section 6.02, any such
interest or other income not theretofore paid, when collected by the Trustee,
shall be applied by the Trustee, as the case may be, in accordance with Section
6.10.
SECTION 10.14. Release upon Termination of the Company's Obligations.
In the event that the Company delivers an Officers' Certificate
certifying that the provisions of Sections 8.01 or 8.02 have been complied with,
the Trustee shall (i) execute and deliver such releases, termination statements
and other instruments as the Company may reasonably request evidencing the
termination of the Liens created by the Collateral Documents and (ii) not be
deemed to hold the Liens for the benefit of the Holders.
ARTICLE ELEVEN
APPLICATION OF TRUST MONEYS
SECTION 11.01. "Trust Moneys" Defined.
Subject to the provisions of the VEBA Intercreditor Agreement, all
cash or Cash Equivalents received by the Trustee in accordance with the terms of
this Indenture and the Collateral Documents:
(a) upon the release of property from the Lien of the Collateral
Documents, including, without limitation, all moneys received in respect
of the principal of all purchase money, governmental or other obligations;
or
(b) as Net Proceeds upon the Destruction of all or any part of the
Collateral (other than any liability insurance proceeds payable to the
Trustee for any loss, liability or expense incurred by it); or
(c) as a Net Award or Net Awards upon the Taking of all or any part
of the Collateral; or
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(d) as proceeds of any other sale or other disposition of all or any
part of the Collateral by or on behalf of the Trustee or any collection,
recovery, receipt, appropriation or other realization of or from all or
any part of the Collateral pursuant to the Collateral Documents or
otherwise; or
(e) pursuant to the Mortgage; or
(f) for application under this Article Eleven as elsewhere provided
in this Indenture or the Collateral Documents, or whose disposition is not
elsewhere otherwise specifically provided for herein or in the Collateral
Documents;
(all such moneys being herein sometimes called "Trust Moneys"; provided,
however, that Trust Moneys shall not include any property deposited with the
Trustee pursuant to Section 3.06 or Article Eight or delivered to or received by
the Trustee for application in accordance with Section 6.10) shall be held by
the Trustee for the benefit of the Holders as a part of the Collateral and, upon
any entry upon or sale or other disposition of the Collateral or any part
thereof pursuant to the Collateral Documents, said Trust Moneys shall be applied
in accordance with Section 6.10; but, prior to any such entry, sale or other
disposition, all or any part of the Trust Moneys may be withdrawn, and shall be
released, paid or applied by the Trustee, from time to time as provided in this
Article Eleven.
On the Issue Date there shall be established and, at all times
hereafter until this Indenture shall have terminated, there shall be maintained
with the Trustee an account which shall be entitled the "Collateral Account"
(the "Collateral Account"). The Collateral Account shall be established and
maintained by the Trustee at its corporate trust offices. All Trust Moneys which
are received by the Trustee shall be deposited in the Collateral Account and
thereafter shall be held, applied and/or disbursed by the Trustee in accordance
with the terms of this Article Eleven.
SECTION 11.02. Withdrawals of Insurance Proceeds and Condemnation Awards.
Subject to the provisions of the Collateral Documents, to the extent
that any Trust Moneys consist of either (i) any Net Proceeds or (ii) any Net
Award or the proceeds for any of the Collateral subject to a Taking sold
pursuant to the exercise by the United States of America or any state,
municipality or other governmental authority of any right which it may then have
to purchase, or to designate a purchaser or to order a sale of any
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part of the Collateral, such Trust Moneys may be withdrawn by the Company and
shall be paid by the Trustee upon a request by a Company Order to reimburse the
Company for expenditures made, or to pay costs incurred, by the Company to
repair, rebuild or replace the property destroyed, damaged or taken, upon
receipt by the Trustee of the following:
(a) an Officers' Certificate of the Company, dated not more than 30
days prior to the date of the application for the withdrawal and payment
of such Trust Moneys:
(i) that expenditures have been made, or costs incurred, by
the Company in a specified amount for the purpose of making certain
repairs, rebuildings and replacements of the Collateral, which shall
be briefly described, and stating the fair value thereof to the
Company at the date of the expenditure or incurrence thereof by the
Company;
(ii) that no part of such expenditures or costs has been or is
being made the basis for the withdrawal of any Trust Moneys in any
previous or then pending application pursuant to this Section 11.02;
(iii) that there is no outstanding Indebtedness, other than
costs for which payment is being requested, for the purchase price
or construction of such repairs, rebuildings or replacements, or for
labor, wages, materials or supplies in connection with the making
thereof, which, if unpaid, might become the basis of a vendors',
mechanics', laborers', materialmen's, statutory or other similar
Lien upon any of such repairs, rebuildings or replacements, which
Lien might, in the opinion of the signers of such certificate,
materially impair the security afforded by such repairs, rebuildings
or replacements;
(iv) that the property to be repaired, rebuilt or replaced is
necessary or desirable in the conduct of the Company's business;
(v) whether any part of such repairs, rebuildings or
replacements within six months before the date of acquisition
thereof by the Company has been used or operated by any person other
than the Company in a business similar to that in which such
property has been or is to be used or operated by the Company, and
whether the fair value to the Company, at the date of such
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acquisition, of such part of such repairs, rebuildings or
replacement is at least $25,000, and 1% of the aggregate principal
amount of the outstanding Securities and, if all of such facts are
present, such part of said repairs, rebuildings or replacements
shall be separately described and it shall be stated that an
Appraiser's or Independent Financial Adviser's certificate as to the
fair value to the Company of such separately described repairs,
rebuildings or replacements will be furnished under paragraph (b) of
this Section 11.02;
(vi) that no Default or Event of Default shall have occurred
and be continuing; and
(vii) that all conditions precedent herein provided for
relating to such withdrawal and payment have been complied with;
(b) all documentation required under TIA ss. 314(d);
(c) (i) In case any part of such repairs, rebuildings or
replacements constitutes Real Property:
(1) with respect to any such repairs, rebuildings or
replacements that are not encompassed within or are not erected upon
Mortgaged Property, an instrument or instruments in recoverable form
sufficient for the Lien of this Indenture and any mortgage to cover
such repairs, rebuildings or replacements which, if such repairs,
rebuildings or replacements include leasehold or easement interests,
shall include normal and customary provisions with respect thereto
and evidence of the filing of all such documents as may be necessary
to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue
title insurance) insuring that the Lien of this Indenture and any
Mortgage constitutes a direct and valid and perfected mortgage Lien
(of the priority contemplated in Section 10.01(a) hereof) on such
repairs, rebuildings or replacements in an aggregate amount equal to
the fair value of such repairs, rebuildings or replacements,
together with such endorsements and other opinions as are
contemplated in Section 10.02(b), or with respect to any such
repairs, rebuildings or replacements that are encompassed within or
erected upon Mortgaged Property an endorsement to the title
insurance policy issued pursuant to Section 10.02(b) regarding the
affected Mortgaged
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Property confirming that such repairs, rebuildings or replacements
are encumbered by the Lien of the applicable Mortgage;
(3) in the event that such repairs, rebuildings or
replacements have a fair value in excess of $250,000, a Survey with
respect thereto; and
(4) evidence of payment or a closing statement indicating
payments to be made by the Company of all title premiums, recording
charges, transfer taxes and other costs and expenses, including
reasonable legal fees and disbursements of counsel for the Trustee
(and any local counsel), that may be incurred to validly and
effectively subject such repairs, rebuildings or replacements to the
Lien of any applicable Collateral Document and to perfect such Lien;
and
(ii) in case any part of such repairs, rebuildings or replacements
constitutes personal property interests:
(1) an instrument in recoverable form sufficient for the Lien
of the Security Agreement to cover such repairs, rebuildings or
replacements; and
(2) evidence of payment or a closing statement indicating
payments to be made by the Company of all filing fees, recording
charges, transfer taxes and other costs and expenses, including
reasonable legal fees and disbursements of counsel for the Trustee
(and any local counsel), that may be incurred to validly and
effectively subject such repairs, rebuildings or replacements to the
Lien of any Collateral Document; and
(d) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith
delivered to the Trustee conform to the requirements of this
Indenture and the Collateral Documents, and that, upon the basis of
such request of the Company and the accompanying documents specified
in this Section 11.02, all conditions precedent herein provided for
relating to such withdrawal and payment have been complied with, and
the Trust Moneys whose withdrawal is then requested may be lawfully
paid over under this Section 11.02;
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(ii) that the Company has acquired title to said repairs,
rebuildings and replacements at least equivalent to its title to the
property destroyed, damaged or taken, and that the same and every
part thereof are free and clear of all Liens prior to the Lien of
any Collateral Documents, except Liens of the type permitted under
the applicable Collateral Document to which the property so
destroyed, damaged or taken shall have been subject at the time of
such destruction, damage or taken;
(iii) that all of the Company's right, title and interest in
and to said repairs, rebuildings or replacements, or combination
thereof, are then subject to the Lien of the Collateral Documents.
Upon compliance with the foregoing provisions of this Section 11.02,
the Trustee shall pay on the written request of the Company an amount of Trust
Moneys of the character aforesaid equal to the amount of the expenditures or
costs stated in the Officers' Certificate required by clause (i) of subsection
(a) of this Section 11.02, or the fair value to the Company of such repairs,
rebuildings and replacements stated in such Officers' Certificate (or in such
Appraiser's or Independent Financial Advisor's certificate, if required),
whichever is less.
SECTION 11.03. Withdrawal of Trust Moneys on Basis of Retirement of Securities.
(a) Except with respect to Trust Moneys received pursuant to Section
10.03(b) and subject to release pursuant to Section 11.03(b) and Section 11.04,
and as otherwise permitted or required by the Collateral Documents, the Trustee
shall apply Trust Moneys from time to time to the payment of the principal of
and interest on any Securities, on any Maturity Date or to the redemption
thereof or the purchase thereof upon tender or in the open market or at private
sale or upon any exchange or in any one or more of such ways, including, without
limitation, pursuant to a Change of Control Offer under Section 4.15 or an Asset
Sale Offer pursuant to Section 4.16, as the Company shall request in writing,
upon receipt by the Trustee of the following:
(i) a Board Resolution of the Company directing the application
pursuant to this Section 11.03 of a specified amount of Trust Moneys and,
if any such moneys are to be applied to payment, designating the
Securities so to be paid and, in case any such moneys are to be applied to
the purchase of Securities, prescribing the method of purchase, the price
or prices to be paid and the maximum principal amount of
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Securities to be purchased and any other provisions of this Indenture
governing such purchase;
(ii) cash in the maximum amount of the accrued interest, if any,
required to be paid in connection with any such purchase, which cash shall
be held by the Trustee, in trust for such purpose;
(iii) an Officers' Certificate, dated not more than 5 Business Days
prior to the date of the relevant application, stating (A) that no Default
or Event of Default exists unless such Default or Event of Default would
be cured thereby, and (B) that all conditions precedent and covenants
herein provided for relating to such application of Trust Moneys have been
complied with; and
(iv) an Opinion of Counsel stating that the documents and the cash
or Cash Equivalents, if any, which have been or are therewith delivered to
and deposited with the Trustee conform to the requirements of this
Indenture and that all conditions precedent herein provided for relating
to such application of Trust Moneys have been complied with.
Upon compliance with the foregoing provisions of this Section
11.03(a), the Trustee shall apply Trust Moneys as directed and specified by such
Board Resolution, up to, but not exceeding, the principal amount of the
Securities so paid or purchased, using the cash deposited pursuant to paragraph
(ii) of this Section 11.03(a), to the extent necessary, to pay any accrued
interest required in connection with such purchase.
(b) To the extent that any Trust Moneys consist of Trust Moneys
received by the Trustee pursuant to the provisions of Section 4.16 and the
Company has made an Asset Sale Offer which is not fully subscribed to by the
Holders, the Trust Moneys remaining after completion of the Asset Sale Offer may
be withdrawn by the Company and shall be paid by the Trustee to the Company (or
as otherwise directed by the Company) upon a Company Order to the Trustee and
upon receipt by the Trustee of the following:
(i) A notice which shall (A) refer to this Section 11.03(b) and (B)
describe with particularity the Asset Sale from which such Trust Moneys
were held as Collateral, the amount of Trust Moneys applied to the
purchase of Securities pursuant to the Asset Sale Offer and the remaining
amount of Trust Moneys to be released to the Company;
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(ii) An Officer's Certificate certifying that (A) the release of the
Trust Moneys complies with the terms and conditions of Section 4.16, (B)
there is no Default or Event of Default in effect or continuing on the
date thereof, (C) the release of the Trust Moneys will not result in a
Default or Event of Default hereunder, and (D) all conditions precedent
and covenants herein provided relating to such release have been complied
with;
(iii) All documentation required under TIA 314(d); and
(iv) An Opinion of Counsel stating that the documents that have been
or are therewith delivered to the Collateral Agent and the Trustee conform
to the requirements of this Indenture and that all conditions precedent
herein provided for relating to such application of Trust Moneys have been
complied with.
SECTION 11.04. Withdrawal of Trust Moneys for Reinvestment.
To the extent that any Trust Moneys consist of Net Cash Proceeds
received by the Trustee pursuant to the provisions of Section 4.16, and the
Company intends to reinvest such Net Cash Proceeds in a Related Business
Investment (the "Released Trust Moneys"), such Trust Moneys may be withdrawn by
the Company and shall be paid by the Trustee to the Company (or as otherwise
directed by the Company) upon a Company Order to the Trustee and upon receipt by
the Trustee of the following:
(a) A notice which shall (i) refer to this Section 11.04, (ii)
contain all documents referred to below, (iii) describe with particularity
the Released Trust Moneys and the Asset Sale from which such Released
Trust Moneys were held as Collateral, (iv) describe with particularity the
Related Business Investment to be made with respect to the Released Trust
Moneys and (v) be accompanied by a counterpart of the instruments proposed
to give effect to the release fully executed and acknowledged (if
applicable) by all parties thereto other than the Trustee;
(b) An Officer's Certificate certifying that (i) the release of the
Released Trust Moneys complies with the terms and conditions of Section
4.16, (ii) there is no Default or Event of Default in effect or continuing
on the date thereof, (iii) the release of the Released Trust Moneys will
not result in a Default or Event of Default hereunder and (iv) all
conditions precedent and covenants herein provided for
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relating to such release and application of the Released Trust Moneys have
been complied with;
(c) If the Related Business Investment to be made is an investment
in Real Property:
(i) an instrument or instruments in recordable form
sufficient for the Lien of any Mortgage to cover such Real Property
which, if the Real Property is a leasehold or easement interest,
shall include normal and customary provisions with respect thereto
and evidence of the filing of all such financing statements and
other instruments as may be necessary to perfect such Liens;
(ii) a policy of title insurance (or a commitment to issue
title insurance) insuring that the Lien of this Indenture and any
Mortgage constitutes a direct and valid and perfected mortgage Lien
of the priority contemplated in Section 10.01(a) on such Real
Property in an aggregate amount equal to the fair value of the Real
Property, together with an Officers' Certificate stating that any
specific exceptions to such title insurance are Permitted Liens,
together with such endorsements and other opinions as are
contemplated by Section 11.2(b)(ii);
(iii) in the event such Real Property has a fair value in
excess of $250,000, a Survey with respect thereto; and
(iv) evidence of payment or a closing statement indicating
payments to be made by the Company of all title premiums, recording
charges, transfer taxes and other costs and expenses, including
reasonable legal fees and disbursements of one counsel for the
Trustee (and any local counsel), that may be incurred to validly and
effectively subject the Real Property to the Lien of any applicable
Collateral Document to perfect such Lien; and
(d) If the Related Business Investment is a personal property
interest:
(i) an instrument in recordable form, if necessary, sufficient
for the Lien of any applicable Collateral Document to cover such
personal property interest; and
(ii) evidence of payment or a closing statement indicating
payments to be made by the Company of all filing fees, recording
charges, transfer taxes and other
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costs and expenses, including reasonable legal fees and
disbursements of one counsel for the Trustee (and any local
counsel), that may be incurred to validly and effectively subject
the Related Business Investment to the Lien of any Collateral
Document.
(e) All documentation required under TIA ss. 314(d); and
(f) An opinion of counsel stating that the documents that have been
or are therewith delivered to the Collateral Agent and the Trustee conform
to the requirements of this Indenture and that all conditions precedent
herein provided for relating to such application of Trust Moneys have been
complied with.
Upon compliance with the foregoing provisions of this Section, the
Trustee shall apply the Released Trust Moneys as directed and specified by the
Company.
SECTION 11.05. Powers Exercisable Notwithstanding Default or Event of Default.
In case a Default or an Event of Default shall have occurred and
shall be continuing, the Company, while in possession of the Collateral (other
than cash, Cash Equivalents, securities and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder or under the
Collateral Documents), may do any of the things enumerated in Sections 11.02,
11.03 and 11.04 if the Holders of a majority in aggregate principal amount of
the Securities outstanding, by appropriate action of such Holders, shall consent
to such action, in which event any certificate filed under any of such Sections
shall omit the statement to the effect that no Default or Event of Default has
occurred and is continuing. This Section 11.05 shall not apply, however, during
the continuance of an Event of Default of the type specified in Section 6.01(1)
or (2).
SECTION 11.06. Powers Exercisable by Trustee or Receiver.
In case the Collateral (other than any cash, Cash Equivalents,
securities and other personal property held by, or required to be deposited or
pledged with, the Trustee hereunder or under the Collateral Documents) shall be
in the possession of a receiver or trustee lawfully appointed, the powers
hereinbefore in this Article Eleven conferred upon the Company with respect to
the withdrawal or application of Trust Moneys may be exercised by such receiver
or trustee, in which case a certificate signed by such receiver or trustee shall
be deemed the equivalent of any Officers'
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Certificate required by this Article Eleven. If the Trustee shall be in
possession of any of the Collateral hereunder or under any of the Collateral
Documents, such powers may be exercised by the Trustee, in its discretion.
SECTION 11.07. Investment of Trust Moneys.
All or any part of any Trust Moneys held by the Trustee shall from
time to time be invested or reinvested by the Trustee in any Cash Equivalents
pursuant to the written direction of the Company, which shall specify the Cash
Equivalents in which such Trust Moneys shall be invested and the maturity date
of such investment. Unless an Event of Default occurs and is continuing, any
interest on such Cash Equivalents (in excess of any accrued interest paid at the
time of purchase) that may be received by the Trustee shall be forthwith paid to
the Company. Such Cash Equivalents shall be held by the Trustee as a part of the
Collateral, subject to the same provisions hereof as the cash used by it to
purchase such Cash Equivalents.
The Trustee shall not be liable or responsible for any loss
resulting from such investments or sales except only for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misconduct in complying with this Section 11.07.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 12.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, or overnight courier addressed as follows:
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if to the Company:
WCI Steel, Inc.
0000 Xxxx Xxxxxx XX
Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq., c/o Managing
Attorneys' Office
if to the Trustee or the Collateral Agent:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Each of the Company, the Trustee and the Collateral Agent by written
notice to each other such person may designate additional or different addresses
for notices to such person. Any notice or communication to the Company, the
Trustee or the Collateral Agent shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when answered back, if telexed;
when receipt is acknowledged, if faxed; and five (5) calendar days after
mailing, if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder, including
any notice delivered in connection with TIA ss. 310(b), TIA ss. 313(c), TIA ss.
314(a) and TIA ss. 315(b), shall be mailed to him by first class mail or other
equivalent means at his address as it appears on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or
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communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA ss. 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
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(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York or at such place of payment are not required to be open. If a payment date
is a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 12.08. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
A director, officer, employee, stockholder or Affiliate, as such, of
the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Securities.
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SECTION 12.11. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 12.13. Severability.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
WCI STEEL, INC.,
as Issuer
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: VP, Finance and Chief
Financial Officer
FLEET NATIONAL BANK,
as Trustee and as Collateral
Agent
By: /s/ Xxxxxx X. Xxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
EXHIBIT A
[FORM OF SERIES A NOTE]
[If a restricted security, then insert -- THE NOTE (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER
OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) INSIDE THE
UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A FOREIGN PURCHASER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND,
IN THE CASE OF CLAUSE (b), (c) OR (d), BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY
OR ANY NOTE ISSUED IN EXCHANGE FOR OR IN SUBSTITUTION OF THIS NOTE OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.]
[If a Temporary Regulation S Global Security, then insert -- THIS SECURITY IS A
TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN SECTION 2.06
OF THE INDENTURE, INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY
NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED IN THE
INDENTURE), AND NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS TEMPORARY
REGULATION S GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN A RESTRICTED GLOBAL
SECURITY OR IN A PERMANENT REGULATION S GLOBAL SECURITY UNTIL AFTER THE LATER OF
THE DATE OF EXPIRATION OF THE RESTRICTED PERIOD AND THE DATE ON WHICH THE OWNER
SECURITIES CERTIFICATION AND THE DEPOSITORY SECURITIES CERTIFICATION RELATING TO
SUCH INTEREST HAVE BEEN PROVIDED IN ACCORDANCE WITH THE TERMS OF THE INDENTURE,
TO THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF SUCH INTEREST ARE NOT U.S.
PERSONS.]
A-1
[If a Permanent Regulation S Security, then insert -- THE SECURITIES EVIDENCED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THE
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
A-2
WCI STEEL, INC.
10% Senior Secured Note
due 2004, Series A
No. $
WCI STEEL, INC., an Ohio corporation (the "Company," which term
includes any successor entity), for value received promises to pay to or
registered assigns, the principal sum of Dollars, on December 1, 2004.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
To the extent set forth in the Collateral Documents, payment hereof
is secured, on an equal and ratable basis with all other Securities, by a valid,
perfected security interest in the Collateral (as defined in the Indenture) with
the priority contemplated in Section 10.01(a) of the Indenture, the terms of
which security interest are more fully set forth in the Collateral Documents.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: November 27, 1996
WCI STEEL, INC.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
A-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
FLEET NATIONAL BANK,
as Trustee
By_________________________________________
Authorized Signatory
A-5
WCI STEEL, INC.
10% Senior Secured Note
due 2004, Series A
1. Interest.
WCI STEEL, INC., an Ohio corporation (the "Company"), promises to
pay cash interest on the principal amount of this Security at the rate per annum
shown above. The Company will pay interest semi-annually in arrears on June 1
and December 1 of each year (the "Interest Payment Date"), commencing June 1,
1997. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at a rate equal to 12%
per annum.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of Federal funds, or interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address. Notwithstanding the foregoing, the Company shall pay or cause to be
paid all amounts payable with respect to Restricted Securities or non-DTC
eligible Securities by wire transfer of Federal funds to the account of the
Holders of such Securities. If this Security is a Global Security, all payments
in respect of this Security will be made to the Depository or its nominee in
immediately available funds in accordance with customary procedures established
from time to time by the Depository.
3. Paying Agent and Registrar.
Initially, Fleet National Bank (the "Trustee"), will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to the Holders.
A-6
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
November 27, 1996 (the "Indenture"), by and between the Company and the Trustee.
This Security is one of a duly authorized issue of Securities of the Company
designated as its 10% Senior Secured Notes due 2004, Series A (the "Series A
Securities"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $300,000,000. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until such
time as the Indenture is qualified under the TIA, and thereafter as in effect on
the date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and Holders of Securities are referred to the Indenture and said Act for a
statement of them. The Securities are general secured obligations of the Company
limited in aggregate principal amount to $300,000,000.
5. Registration Rights.
Pursuant to the Registration Rights Agreement by and between the
Company and the initial purchaser of the Series A Securities, the Company will
be obligated to consummate an exchange offer pursuant to which the Holder of
this Security shall have the right to exchange this Security for 10% Senior
Secured Notes due 2004, Series B, of the Company (the "Series B Securities"),
which have been registered under the Securities Act, in like principal amount
and having identical terms as the Series A Securities. The Holders of Series A
Securities shall be entitled to receive certain additional interest payments in
the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the Registration
Rights Agreement. The Series A Securities and the Series B Securities are
together referred to herein as the "Securities."
6. Optional Redemption.
The Securities will be subject to redemption, in whole or in part,
at the option of the Company, at any time on or after December 1, 2001, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued interest to the redemption date, if redeemed during the 12-month
period beginning on December 1 of the years indicated below:
A-7
Year Percentage
2001.................................................... 105.000%
2002.................................................... 103.333%
2003.................................................... 101.000%
In addition, at any time prior to December 1, 1999, the Company may
redeem up to 33-1/3% of the aggregate principal amount of the Securities
originally issued with the proceeds of one or more Equity Offerings at a
redemption price (expressed as a percentage of principal amount) of 109% plus
accrued interest to the redemption date; provided that at least $200 million
aggregate principal amount of Securities remains outstanding immediately after
any such redemption. In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Equity Offering.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such Redemption Price,
the Securities called for redemption will cease to bear interest and the only
right of the Holders of such Securities will be to receive payment of the
Redemption Price.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, upon the satisfaction of
the conditions set forth in the Indenture, the Company shall be required to
offer to purchase all of the then outstanding Securities pursuant to a Change of
Control Offer at a purchase price equal to 101% of the principal amount thereof
plus accrued interest, if any, to the date of purchase. Holders of Securities
which are the subject of such an offer to repurchase shall receive an offer to
repurchase and may elect to have such Securities repurchased in accordance with
the provisions of the Indenture pursuant to and in accordance with the terms of
the Indenture.
A-8
9. Limitation on Disposition of Assets.
Under certain circumstances, the Company is required to apply the
net proceeds from Asset Sales to repurchase Securities at a price equal to 100%
of the aggregate principal amount thereof, plus accrued interest to the date of
purchase.
10. Collateral Documents.
In order to secure the due and punctual payment of the principal of
and interest on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same will be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Company has granted security
interests in and Liens on the Collateral owned by it to the Trustee for the
benefit of the Holders of Securities pursuant to the Indenture and the
Collateral Documents. The Securities will be secured by Liens on and security
interests in the Collateral with the priority contemplated in Section 10.01(a)
of the Indenture and are subject to certain permitted encumbrances.
Each Holder, by accepting a Security, agrees to all of the terms and
provisions of the Collateral Documents, as the same may be amended from time to
time pursuant to the respective provisions thereof and the Indenture.
The Trustee and each Holder acknowledge that a release of any of the
Collateral or any Lien strictly in accordance with the terms and provisions of
the Collateral Documents and the terms and provisions of the Indenture will not
be deemed for any purpose to be an impairment of the security under the
Indenture.
11. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption. No service
charge shall be made for any registration of transfer or exchange or redemption
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
A-9
12. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
With respect to Global Securities, the Depository may grant proxies
and otherwise authorize Holders of Book-Entry Securities to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder of a Security is entitled to give or take under this
Indenture.
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent will pay the money back to the
Company at its request. After that, all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
14. Discharge Prior to Redemption or Maturity.
The Company's obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Securities or upon
the irrevocable deposit with the Trustee of money or U.S. Government Obligations
sufficient to pay when due principal of, and premium, if any, and interest on
the Securities to maturity or redemption, as the case may be.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities, comply with Article Five of the Indenture or comply with any
requirements of the SEC in connection with the qualification of the Indenture
under the TIA, or make any other change that does not adversely affect the
rights of any Holder of a Security.
A-10
16. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose of substantially all of certain of its properties or assets. The
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
17. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
18. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable in the manner,
at the time and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in their interest.
19. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
20. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. The
A-11
waiver and release are part of the consideration for the issuance of the
Securities.
21. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on this Security.
22. Governing Law.
The Laws of the State of New York shall govern this Security and the
Indenture.
23. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
24. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
25. Indenture.
Each Holder, by accepting a Security, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to: WCI
STEEL, INC., 0000 Xxxx Xxxxxx XX, Xxxxxx, XX 00000-0000, Attn.: Xxxx X. Xxxx.
26. Certain Information Obligations.
At any time when the Company is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, upon the request of a Holder of a Series
A Security, the Company will promptly furnish or cause to be furnished such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) to such Holder or to a prospective
A-12
purchaser of such Series A Security designated by such Holder, as the case may
be, in order to permit compliance by such Holder with Rule 144A under the
Securities Act.
[The form of reverse of a Temporary Regulation S Global Security shall be as set
forth below --
Until this Temporary Regulation S Global Security is exchanged for a
Permanent Regulation S Global Security, the Holder hereof shall not be entitled
to receive payments of interest hereon; until so exchanged in full, this
Temporary Regulation S Global Security shall in all other respects be entitled
to the same benefits as other Securities under the Indenture.
This Temporary Regulation S Global Security is exchangeable in whole
or in part for one or more Permanent Regulation S Global Securities or
Restricted Global Securities only (i) on or after the expiration of the
Restricted Period and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article II of the Indenture. Upon
exchange of this Temporary Regulation S Global Security for one or more
Permanent Regulation S Global Securities or Restricted Global Securities, the
Trustee shall cancel this Temporary Regulation S Global Security.
This Temporary Regulation S Global Security shall not become valid
or obligatory until the certificate of authentication hereon shall have been
duly manually signed by the Trustee in accordance with the Indenture. This
Temporary Regulation S Global Security shall be governed by and construed in
accordance with the laws of the State of New York.
SCHEDULE OF EXCHANGES FOR GLOBAL SECURITIES
The following exchanges of a part of this Temporary Regulation S
Global Security for other Global Securities have been made:
Amount of decrease in Amount of increase in Global Security Signature of
Principal Amount of Principal Amount of following such decrease authorized officer
Date of Exchange this Global Security this Global Security (or increase) of Trustee ]
---------------- -------------------- -------------------- ----------------------- ------------------
A-13
[FORM OF ASSIGNMENT]
I or we assign this Security to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
_______________________________________
and irrevocably appoint _______________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated:____________________ Signed:____________________________
______________________________________________________________
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee:__________________________________________
A-14
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount:
$
Date:__________ Signature:____________________________
(Sign exactly as your name
appears on the front of
this Security)
Signature Guarantee:______________________________________
A-15
EXHIBIT B
[FORM OF SERIES B NOTE]
WCI STEEL, INC.
10% Senior Secured Note
due 2004, Series B
No. $
WCI STEEL, INC., an Ohio corporation (the "Company," which term
includes any successor entity), for value received promises to pay to or
registered assigns, the principal sum of Dollars, on December 1, 2004.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
To the extent set forth in the Collateral Documents, payment hereof
is secured, on an equal and ratable basis with all other Securities, by a valid,
perfected security interest in the Collateral (as defined in the Indenture) with
the priority contemplated in Section 10.01(a) of the Indenture, the terms of
which security interest are more fully set forth in the Collateral Documents.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated:
WCI STEEL, INC.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
B-1
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
FLEET NATIONAL BANK,
as Trustee
By:_____________________________________
Authorized Signatory
B-2
WCI STEEL, INC.
10% Senior Secured Note
due 2004, Series B
1. Interest.
WCI STEEL, INC., an Ohio corporation (the "Company"), promises to
pay cash interest on the principal amount of this Security at the rate per annum
shown above. The Company will pay interest semi-annually in arrears on June 1
and December 1 of each year (the "Interest Payment Date"), commencing June 1,
1997. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at a rate equal to 12%
per annum.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of Federal funds, or interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar.
Initially, Fleet National Bank (the "Trustee"), will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
November 27, 1996 (the "Indenture"), by and between the Company and the Trustee.
This Security is one of a duly authorized issue of Securities of the Company
designated as its 10% Senior Secured Notes due 2004, Series B (the "Series B
Securities"),
B-3
limited (except as otherwise provided in the Indenture) in aggregate principal
amount to $300,000,000. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are general secured obligations of the Company limited in
aggregate principal amount to $300,000,000.
5. Exchange Offer.
The Series B Securities were issued pursuant to an exchange offer
pursuant to which 10% Senior Secured Notes due 2004, Series A, of the Company
(the "Series A Securities"), in like principal amount and having substantially
identical terms as the Series B Securities, were exchanged for the Series B
Securities. The Series A Securities and the Series B Securities are together
referred to herein as the "Securities."
6. Optional Redemption.
The Securities will be subject to redemption, in whole or in part,
at the option of the Company, at any time on or after December 1, 2001, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued interest to the redemption date, if redeemed during the 12-month
period beginning on December 1 of the years indicated below:
Year Percentage
2001.................................................... 105.000%
2002.................................................... 103.333%
2003.................................................... 101.000%
In addition, at any time prior to December 1, 1999, the Company may
redeem up to 33-1/3% of the aggregate principal amount of the Securities
originally issued with the proceeds of one or more Equity Offerings at a
redemption price (expressed as a percentage of principal amount) of 109% plus
accrued interest to the redemption date; provided that at least $200 million
aggregate principal amount of Securities remains outstanding immediately after
any such redemption. In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Equity Offering.
B-4
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such Redemption Price,
the Securities called for redemption will cease to bear interest and the only
right of the Holders of such Securities will be to receive payment of the
Redemption Price.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, upon the satisfaction of
the conditions set forth in the Indenture, the Company shall be required to
offer to purchase all of the then outstanding Securities pursuant to a Change of
Control Offer at a purchase price equal to 101% of the principal amount thereof
plus accrued interest, if any, to the date of purchase. Holders of Securities
which are the subject of such an offer to repurchase shall receive an offer to
repurchase and may elect to have such Securities repurchased in accordance with
the provisions of the Indenture pursuant to and in accordance with the terms of
the Indenture.
9. Limitation on Disposition of Assets.
Under certain circumstances, the Company is required to apply the
net proceeds from Asset Sales to repurchase Securities at a price equal to 100%
of the aggregate principal amount thereof, plus accrued interest to the date of
purchase.
10. Collateral Documents.
In order to secure the due and punctual payment of the principal of
and interest on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same will be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Company has granted security
interests in and Liens on the Collateral owned by it to the Trustee for the
benefit of the Holders of Securities pursuant to the Indenture and the
Collateral Documents. The Securities will be secured by Liens on and security
interests in the Collateral with the priority
B-5
contemplated in Section 10.01(a) of the Indenture and are subject to certain
permitted encumbrances.
Each Holder, by accepting a Security, agrees to all of the terms and
provisions of the Collateral Documents, as the same may be amended from time to
time pursuant to the respective provisions thereof and the Indenture.
The Trustee and each Holder acknowledge that a release of any of the
Collateral or any Lien strictly in accordance with the terms and provisions of
the Collateral Documents and the terms and provisions of the Indenture will not
be deemed for any purpose to be an impairment of the security under the
Indenture.
11. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption. No service
charge shall be made for any registration of transfer or exchange or redemption
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
12. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
With respect to Global Securities, the Depository may grant proxies
and otherwise authorize Holders of Book-Entry Securities to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder of a Security is entitled to give or take under this
Indenture.
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent will pay the money back to the
Company at its request. After that, all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
B-6
14. Discharge Prior to Redemption or Maturity.
The Company's obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Securities or upon
the irrevocable deposit with the Trustee of money or U.S. Government Obligations
sufficient to pay when due principal of, and premium, if any, and interest on
the Securities to maturity or redemption, as the case may be.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities, comply with Article Five of the Indenture or comply with any
requirements of the SEC in connection with the qualification of the Indenture
under the TIA, or make any other change that does not adversely affect the
rights of any Holder of a Security.
16. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose of substantially all of certain of its properties or assets. The
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
17. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
18. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the
B-7
Securities to be due and payable in the manner, at the time and with the effect
provided in the Indenture. Holders of Securities may not enforce the Indenture
or the Securities except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
19. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
20. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
21. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on this Security.
22. Governing Law.
The Laws of the State of New York shall govern this Security and the
Indenture.
23. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
B-8
24. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
25. Indenture.
Each Holder, by accepting a Security, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to: WCI
STEEL, INC., 0000 Xxxx Xxxxxx XX, Xxxxxx, XX 00000-0000, Attn.: Xxxx X. Xxxx.
B-9
[FORM OF ASSIGNMENT]
I or we assign this Security to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
_______________________________________
and irrevocably appoint _______________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated:____________________ Signed:____________________________
___________________________________________________________
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee:__________________________________________
B-10
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount:
$
Date:__________ Signature:____________________________
(Sign exactly as your name
appears on the front of
this Security)
Signature Guarantee:______________________________________
B-11
EXHIBIT C
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
C-1
EXHIBIT D
Transferee Letter of Representation
WCI Steel, Inc.
c/o Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
In connection with our proposed purchase of $ aggregate principal
amount of the 10% Senior Secured Notes due 2004 (the "Notes") of WCI Steel,
Inc., an Ohio corporation (the "Company"), we confirm that:
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and, unless so
registered, may not be sold except as permitted in the following sentence. We
agree on our own behalf and on behalf of any investor account for which we are
purchasing Notes to offer, sell or otherwise transfer such Notes prior to the
date which is three years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company was the owner of
such Notes (or any predecessor thereto) (the "Resale Restriction Termination
Date") only (a) to the Company, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) so long as the Notes
are eligible for resale pursuant to Rule 144A under the Securities Act, to a
person we reasonably believe is a qualified institutional buyer under Rule 144A
(a "QIB") that purchases for its own account or for the account of a QIB and to
whom notice is given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is purchasing for his own account or
for the account of such an institutional "accredited investor," in each case in
a minimum principal amount of Notes of $500,000, (f) in an offshore transaction
pursuant to Regulation S of the Securities Act or (g) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e)
D-1
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act and that it is acquiring
such Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Notes pursuant to clause (c), (d) or (f)
above to require the delivery of an opinion of counsel, certifications and/or
other information satisfactory to the Company and the Trustee.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) purchasing
for our own account or for the account of such an institutional "accredited
investor," and we are acquiring the Notes for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.
3. We are acquiring at least $500,000 principal amount of the Notes
and we are acquiring the Notes purchased by us for our own account or for one or
more accounts as to each of which we exercise sole investment discretion.
D-2
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter 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: ___________________________
Date: _________________________
Upon transfer the Notes would be registered in the name of the new
beneficial owner as follows:
Name: ______________________________
Address: ___________________________
Taxpayer ID Number: ________________
D-3
EXHIBIT E
[FORM OF CERTIFICATION TO BE GIVEN BY HOLDERS OF
BENEFICIAL INTEREST IN A TEMPORARY
REGULATION S GLOBAL SECURITY
TO EUROCLEAR OR CEDEL]
OWNER SECURITIES CERTIFICATION
WCI STEEL, INC.
10% Senior Secured Notes due 2004
CUSIP No.______
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This is to certify that, as of the date hereof, $___________ of the
above-captioned Securities (the "Securities") are beneficially owned by non-U.S.
person(s). As used in this paragraph, the term "U.S. person" has the meaning
given to it by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchasers.
Dated: __________, ____
By:_______________________________________________
As, or as agent for, the beneficial
owner(s) of the Securities to which
this certificate relates.
E-1
EXHIBIT F
[FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR
CEDEL BANK, SOCIETE ANONYME]
DEPOSITORY SECURITIES CERTIFICATION
WCI STEEL, INC.
10% Senior Secured Notes due 2004
CUSIP No. ________
Reference is hereby made to the Indenture, dated as of November 27, 1996 (the
"Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet National
Bank, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This is to certify that, with respect to U.S.$__________ principal amount of the
above-captioned Securities (the "Securities"), except as set forth below, we
have received in writing, by tested telex or by electronic transmission, from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the Securities (our "Member Organizations"),
certifications with respect to such portion, substantially to the effect set
forth in the Indenture.(1)
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Regulation S Global Security (as defined in the
Indenture) excepted in such certifications and (ii) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
--------
(1) Unless Xxxxxx Guaranty Trust Company of New York, London Branch is
otherwise informed by the Agent, the long form certificate set out in the
Operating Procedures will be deemed to meet the requirements of this
sentence.
F-1
We understand that this certification is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Issuer and the Initial Purchasers.
Dated: ___________, ____
Yours faithfully,
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as operator of the
Euroclear System]
or
[CEDEL BANK, SOCIETE ANONYME]
By:___________________________________
F-2
EXHIBIT G
[FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY]
TRANSFEREE SECURITIES CERTIFICATION
WCI STEEL, INC.
10% Senior Secured Notes due 2004
CUSIP No._________
Reference is hereby made to the Indenture, dated as of November 27, 1996 (the
"Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet National
Bank, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary Regulation S
Global Security, the undersigned certifies that it is not a U.S. Person as
defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you in which we intend to acquire a beneficial interest in accordance with your
operating procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate to any interested party in such proceeding. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Issuer and the Initial Purchaser.
Dated: _____________, ____
By:_________________________________________
As, or as agent for, the beneficial
acquiror of the Securities to which
this certificate relates.
G-1
EXHIBIT H
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF RESTRICTED GLOBAL SECURITY
TO TEMPORARY REGULATION S GLOBAL SECURITY
Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: WCI Steel, Inc.
10% Senior Secured Notes
due 2004 (the "Securities")
---------------------------
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to U.S. $_____________ aggregate principal
amount of Securities which are held in the form of the Restricted Global
Security (CUSIP No. ) with the Depository in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person who will take delivery thereof
in the form of an equal aggregate principal amount of Securities evidenced by
the Temporary Regulation S Global Security (CUSIP No._____) to be held with the
Depository in the name of [Euroclear] [Cedel Bank, societe anonyme].
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Securities and
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and accordingly the Transferor does
hereby certify that:
(1) the offer of the Securities was not made to a person in the
United States;
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor
H-1
and any person acting on its behalf reasonably believed that the
transferee was outside the United States;]1
[(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the Transferor nor
any person acting on our behalf knows that the transaction was
pre-arranged with a buyer in the United States;(1)
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903 (b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the Depository in
the name of [Euroclear] [Cedel Bank, societe anonyme].
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: _____________________________
CC: WCI Steel, Inc.
--------
(1) Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
H-2
EXHIBIT I
FORM OF CERTIFICATION FOR TRANSFER OR EXCHANGE OF
RESTRICTED GLOBAL SECURITY TO
PERMANENT REGULATION S GLOBAL SECURITY
Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: WCI Steel, Inc.
10% Senior Secured Notes
due 2004 (the "Securities")
---------------------------
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to U.S.$____________ aggregate principal amount
of Securities which are held in the form of the Restricted Global Security
(CUSIP No. ) with the Depository in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a Person who will take delivery thereof in the
form of an equal aggregate principal amount of Securities evidenced by the
Permanent Regulation S Global Security (CUSIP No._____).
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Securities and,
(1) with respect to transfers made in reliance on Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), the Transferor does
hereby certify that:
(A) the offer of the Securities was not made to a person in the
United States;
[(B at the time the buy order was originated, the transferee was
outside the United States or the Transferor
I-1
and any person acting on its behalf reasonably believed that the
transferee was outside the United States;]1
[(B) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the Transferor nor
any person acting on our behalf knows that the transaction was
pre-arranged with a buyer in the United States;(1)
(C) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
and
(D) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(2) with respect to transfers made in reliance on Rule 144 under the Securities
Act, the Transferor does hereby certify that the Securities are being
transferred in a transaction permitted by Rule 144 under the Securities Act.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
Dated: _________________________
CC: WCI Steel, Inc.
--------
(1) Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
I-2
EXHIBIT J
FORM OF CERTIFICATION FOR TRANSFER OR EXCHANGE OF
TEMPORARY REGULATION S GLOBAL SECURITY
OR PERMANENT REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: WCI Steel, Inc.
10% Senior Secured Notes
due 2004 (the "Securities")
---------------------------
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to U.S.$_______ principal amount of Securities
which are evidenced by an aggregate [Temporary Regulation S Global Security
(CUSIP No._______] [Permanent Regulation S Global Security (CUSIP No._______]
and held with the Depository through [Euroclear] [Cedel] (Common Code _______)
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in Securities to a person
that will take delivery thereof in the form of an equal principal amount of
Securities evidenced by a Restricted Global Security of the same series and of
like tenor as the Securities (CUSIP No._______).
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that such transfer is being effected pursuant
to and in accordance with Rule 144A under the Securities Act and, accordingly,
the Transferor does hereby further certify that the Securities are being
transferred to a person that the Transferor reasonably believes is purchasing
the Securities for its own account, or for one or more accounts
J-1
with respect to which such person exercises sole investment discretion, and such
person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in each case in a transaction meeting the requirements of
Rule 144A and in accordance with any applicable securities laws of any state of
the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Initial Purchaser.
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: ________________________
CC: WCI Steel, Inc.
J-2
EXHIBIT K-1
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: WCI Steel, Inc.
10% Senior Secured Notes
due 2004 (the "Securities")
---------------------------
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Restricted
Securities held in definitive form (CUSIP No._______) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A or Rule 144 under the
United States Securities Act of 1933, as amended (the "Securities Act") and
accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 144A:
(A) the Securities are being transferred to a person that the
Transferor reasonably believes is purchasing the Securities for its
own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion;
(B) such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A; and
K-1-1
(C) the Securities have been transferred in a transaction
meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States; or
(2) if the transfer has been effected pursuant to Rule 144:
(A) more than two years has elapsed since the date of the
closing of the initial placement of the Securities pursuant to the
Purchase Agreement; and
(B) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any applicable
securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
Dated: _____________, ____
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
cc: WCI Steel, Inc.
K-1-2
EXHIBIT K-2
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
PERMANENT REGULATION S GLOBAL SECURITY
OR TEMPORARY REGULATION S GLOBAL SECURITY
Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: WCI Steel, Inc.
10% Senior Secured Notes
due 2004 (the "Securities")
---------------------------
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $ principal amount of Restricted Securities
held in definitive form (CUSIP No. ) by [insert name of transferor] (the
"Transferor"). The Transferor has requested an exchange or transfer of such
Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with (a) Rule 903 or Rule 904 under
the Securities Act of 1933, as amended (the "Act"), or (b) Rule 144 under the
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or
Rule 904:
(A) the offer of the Securities was not made to a person in the
United States;
(B) either;
(i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf
K-2-1
reasonably believed that the transferee was outside the United
States, or
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was pre-arranged with a buyer in
the United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation
S, as applicable;
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Act; and
(E) if such transfer is to occur during the Restricted Period,
upon completion of the transaction, the beneficial interest being
transferred as described above was held with the Depository through
[Euroclear] [CEDEL]; or
(2) if the transfer has been effected pursuant to Rule 144:
(A) more than two years has elapsed since the date of the
closing of the initial placement of the Securities pursuant to the
Purchase Agreement; and
(B) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any applicable
securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
Dated: ____________, ____
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
CC: WCI Steel, Inc.
K-2-2
EXHIBIT L-1
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL PERMANENT REGULATION S
SECURITY TO RESTRICTED GLOBAL SECURITY
Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: WCI Steel, Inc.
10% Senior Secured Notes
due 2004 (the "Securities")
---------------------------
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Restricted
Securities held in definitive form (CUSIP No._______) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended, and accordingly the Transferor does
hereby further certify that the Securities are being transferred to a person
that the Transferor reasonably believes is purchasing the Securities for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce
L-1-1
this certificate to any interested party in such proceeding. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Issuer and the Initial Purchaser.
Dated: _______________, ____
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
CC: WCI Steel, Inc.
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL PERMANENT REGULATION S
SECURITY TO PERMANENT REGULATION S GLOBAL SECURITY
Fleet National Bank,
as Trustee
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: WCI Steel, Inc.
10% Senior Secured Notes
due 2004 (the "Securities")
---------------------------
Reference is hereby made to the Indenture, dated as of November 27,
1996 (the "Indenture"), by and between WCI Steel, Inc., as Issuer, and Fleet
National Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $______________ principal amount of
Restricted Securities held in definitive form (CUSIP No._______) by __________
[insert name of transferor] (the "Transferor"). The Transferor has requested an
exchange or transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with (a) Rule 903 or Rule 904 under
the Securities Act of 1933, as amended (the "Act"), or (b) Rule 144 under the
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or
Rule 904:
(A) the offer of the Securities was not made to a person
in the United States;
(B) either;
(i) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person
L-2-1
acting on its behalf reasonably believed that the
transferee was outside the United States, or
(ii) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction
was pre-arranged with a buyer in the United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904 (b) of
Regulation S, as applicable;
(D) the transaction is not part of a plan or scheme to
evade the registration requirements of the Act; and
(E) if such transfer is to occur during the Restricted
Period, upon completion of the transaction, the beneficial
interest being transferred as described above was held with
the Depository through [Euroclear] [CEDEL]; or
(2) if the transfer has been effected pursuant to Rule 144:
(A) more than two years has elapsed since the date of
the closing of the initial placement of the Securities
pursuant to the Purchase Agreement; and
(B) the Securities have been transferred in a
transaction permitted by Rule 144 and made in accordance with
any applicable securities laws of any state of the United
States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are
L-2-2
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate to any
interested party in such proceeding. This certificate and the statements
contained herein are made for your benefit and the benefit of the Issuer and the
Initial Purchaser.
Dated: ______________, ____
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
CC: WCI Steel, Inc.
L-2-3