Exhibit 4.1
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RENCO STEEL HOLDINGS, INC.,
as Issuer
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
----------------------
INDENTURE
Dated as of February 3, 1998
----------------------
$120,000,000
10 7/8% Senior Secured Notes
due 2005, Series A
and
10 7/8% Senior Secured Notes
due 2005, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Sextion 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; 11.02
(c) . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1). . . . . . . . . . . . . . . . . . . . N.A.
(b)(2). . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(D) . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . 4.07; 4.09; 11.02
(b) . . . . . . . . . . . . . . . . . . . . 10.02
(c)(1). . . . . . . . . . . . . . . . . . . . 11.04
(c)(2). . . . . . . . . . . . . . . . . . . . 11.04
(c)(3). . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . 10.03, 10.04
(e) . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . N.A
315(a) . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(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, 9.04
317(a)(1). . . . . . . . . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . 11.01
---------------------------
N.A. Means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . . . . .1
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. Incorporation by Reference of TIA. . . . . . . . . . . . . . . 14
SECTION 1.03. Rules of Construction. . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.02. Execution and Authentication.. . . . . . . . . . . . . . . . . 18
SECTION 2.03. Registrar and Paying Agent.. . . . . . . . . . . . . . . . . . 19
SECTION 2.04. Paying Agent To Hold Assets in Trust.. . . . . . . . . . . . . 20
SECTION 2.05. Securityholder Lists.. . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.07. Replacement Securities.. . . . . . . . . . . . . . . . . . . . 29
SECTION 2.08. Outstanding Securities.. . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.10. Temporary Securities.. . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.11. Cancellation.. . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. Defaulted Interest.. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.13. CUSIP Number.. . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.14. Designation. . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE THREE REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.01. Optional Redemption. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.02. Notices to Trustee.. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.03. Selection of Securities To Be Redeemed.. . . . . . . . . . . . 32
SECTION 3.04. Notice of Redemption.. . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.05. Effect of Notice of Redemption.. . . . . . . . . . . . . . . . 34
SECTION 3.06. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 34
SECTION 3.07. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 35
ARTICLE FOUR COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.01. Payment of Securities. . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 35
SECTION 4.03. Limitation on Restricted Payments. . . . . . . . . . . . . . . 36
SECTION 4.04. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.05. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . 38
SECTION 4.06. Maintenance of Properties and Insurance. . . . . . . . . . . . 38
SECTION 4.07. Compliance Certificate; Notice of Default. . . . . . . . . . . 39
SECTION 4.08. Compliance with Laws.. . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.09. SEC Reports and Other Information. . . . . . . . . . . . . . . 40
SECTION 4.10. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . 41
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SECTION 4.11. Limitation on Transactions with Affiliates.. . . . . . . . . . 42
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness. . . . . . 42
SECTION 4.13. Ownership of WCI Stock.. . . . . . . . . . . . . . . . . . . . 43
SECTION 4.14. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.15. Change of Control. . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.16. Limitation on Asset Sales. . . . . . . . . . . . . . . . . . . 45
SECTION 4.17. Limitation on Business Activiti`es.. . . . . . . . . . . . . . 48
SECTION 4.18. Limitation on Status as Investment Company.. . . . . . . . . . 48
SECTION 4.19. Impairment of Security Interest. . . . . . . . . . . . . . . . 49
SECTION 4.20. Amendment to Pledge Agreement. . . . . . . . . . . . . . . . . 49
ARTICLE FIVE SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.01. When Company May Merge, Etc. . . . . . . . . . . . . . . . . . 50
SECTION 5.02. Successor Corporation Substituted. . . . . . . . . . . . . . . 51
ARTICLE SIX DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.02. Acceleration.. . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.03. Other Remedies.. . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.04. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . 55
SECTION 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.07. Rights of Holders To Receive Payment.. . . . . . . . . . . . . 56
SECTION 6.08. Collection Suit by Trustee.. . . . . . . . . . . . . . . . . . 56
SECTION 6.09. Trustee May File Proofs of Claim.. . . . . . . . . . . . . . . 57
SECTION 6.10. Priorities.. . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 58
ARTICLE SEVEN TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.03. Individual Rights of Trustee.. . . . . . . . . . . . . . . . . 61
SECTION 7.04. Trustee's Disclaimer.. . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.05. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.06. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . 61
SECTION 7.07. Compensation and Indemnity.. . . . . . . . . . . . . . . . . . 62
SECTION 7.08. Replacement of Trustee.. . . . . . . . . . . . . . . . . . . . 63
SECTION 7.09. Successor Trustee by Merger, Etc.. . . . . . . . . . . . . . . 64
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . 64
SECTION 7.11. Preferential Collection of Claims Against Company. . . . . . . 65
ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE. . . . . . . . . . . . . . 65
SECTION 8.01. Termination of Company's Obligations.. . . . . . . . . . . . . 65
SECTION 8.02. Legal Defeasance and Covenant Defeasance.. . . . . . . . . . . 66
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Page
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SECTION 8.03. Application of Trust Money.. . . . . . . . . . . . . . . . . . 70
SECTION 8.04. Repayment to Company.. . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.05. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . 72
SECTION 9.01. Without Consent of Holders.. . . . . . . . . . . . . . . . . . 72
SECTION 9.02. With Consent of Holders. . . . . . . . . . . . . . . . . . . . 72
SECTION 9.03. Compliance with TIA. . . . . . . . . . . . . . . . . . . . . . 74
SECTION 9.04. Revocation and Effect of Consents. . . . . . . . . . . . . . . 74
SECTION 9.05. Notation on or Exchange of Securities. . . . . . . . . . . . . 75
SECTION 9.06. Trustee To Sign Amendments, Etc. . . . . . . . . . . . . . . . 75
ARTICLE TEN COLLATERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.01. Pledge of Collateral. . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.02. Recording; Priority; Opinions, Etc. . . . . . . . . . . . . . 76
SECTION 10.03. Release of Collateral.. . . . . . . . . . . . . . . . . . . . 77
SECTION 10.04. Trust Indenture Act Requirements. . . . . . . . . . . . . . . 79
SECTION 10.05. Suits To Protect Collateral.. . . . . . . . . . . . . . . . . 79
SECTION 10.06. Purchaser Protected.. . . . . . . . . . . . . . . . . . . . . 80
SECTION 10.07. Powers Exercisable by Receiver or Trustee.. . . . . . . . . . 80
SECTION 10.08. Determinations Relating to Collateral.. . . . . . . . . . . . 80
SECTION 10.09. Form and Sufficiency of Release.. . . . . . . . . . . . . . . 80
SECTION 10.10. Release upon Termination of the Company's Obligations.. . . . 81
ARTICLE ELEVEN MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 11.01. TIA Controls. . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 11.02. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 11.03. Communications by Holders with Other Holders. . . . . . . . . 83
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. . . . . . 83
SECTION 11.05. Statements Required in Certificate or Opinion.. . . . . . . . 83
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.. . . . . . . . . . 84
SECTION 11.07. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.08. Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.09. No Adverse Interpretation of Other Agreements.. . . . . . . . 84
SECTION 11.10. No Recourse Against Others. . . . . . . . . . . . . . . . . . 85
SECTION 11.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.12. Duplicate Originals.. . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.13. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 85
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Exhibit A -. . . . . . . . . . . . . . . . . . . . . . . .Form of Series A Note
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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 operator 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
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 February 3, 1998, by and between RENCO STEEL
HOLDINGS, INC., an Ohio corporation (the "Company"), as issuer, and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts bank and trust company, 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 7/8%
Senior Secured Notes due 2005, Series A, and 10 7/8% Senior Secured Notes due
2005, 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 assumed by the Company in connection with the acquisition of assets
by the Company from such person.
"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 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 Premium" means, with respect to a Security, the excess of (A)
the present value of all remaining re-
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quired interest and principal payments due on such Security, computed using a
discount rate equal to the Treasury Rate plus 100 basis points, over (B) the
then outstanding principal amount of such Security; PROVIDED, HOWEVER, that in
no event will the Applicable Premium exceed the amount of the applicable
redemption price upon an optional redemption less 100% of the then outstanding
principal amount of such Security at any time on or after February 1, 2002.
"Applicable Procedures" has the meaning provided in Section 2.06(g).
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease, assignment or other transfer for value by the Company to any
person, in one transaction or a series of related transactions, of (i) any
Capital Stock of any Subsidiary of the Company; or (ii) any other properties or
assets of the Company. 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 Section 5.01 hereof.
"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.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"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.
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"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 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 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 Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), or ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"); (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 S&P or at least P-1 from Moody's; (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
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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.
"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" (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.
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"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 that are
from time to time subject to the Pledge Agreement and all other property and
assets that are from time to time made subject, or required to be made subject,
to Liens for the benefit of the Trustee and to the Holders pursuant to the
Pledge Agreement or this Indenture.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means such successor.
"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 and (c) any extraordinary, unusual or nonrecurring
gains or losses (and related tax effects) in accordance with GAAP.
"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 stockhold-
-6-
ers' 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 that is, or after notice or passage of time or
both would be, 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.
"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.
"Equity Offering" means an offering of Qualified Capital Stock of the
Company (other than to any Subsidiary of the Company).
"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.
-7-
"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.
"Extraordinary Distribution" means any and all dividends, cash, instruments
and other property and proceeds received, receivable or otherwise distributed on
WCI Pledged Stock constituting (i) any liquidating dividend or other liquidating
distribution or other similar extraordinary dividend or distribution; (ii) any
dividend or other distribution in respect of WCI Pledged Stock in the form of
Capital Stock or any other property or assets (including cash and Cash
Equivalents) to the extent the Fair Market Value (determined at the time of the
dividend or distribution) of all dividends and other distributions in respect of
WCI Pledged Stock made on or after the Issue Date to and including the date of
such dividend or other distribution exceeds 100% of the Consolidated Net Income
of WCI accrued on a cumulative basis subsequent to January 31, 1998.
"Fair Market 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 that with respect to any Asset Sale
which involves in excess of $5.0 million, the Fair Market Value of any such
asset or assets shall be determined by an Independent Financial Advisor.
"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.
-8-
"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.
"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 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.
-9-
"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 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation.
"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.
"Investment" means, with respect to any person, any 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.
"Issue Date" means the date of the 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 11.07.
-10-
"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.
"Maturity Date" means February 1, 2005.
"Net Cash Income" means, with respect to any period, the net income (or
loss) of the Company, on an unconsolidated basis, for such period determined in
accordance with GAAP; excluding (i) any extraordinary, unusual or nonrecurring
gains or losses (and the related tax effects) and (ii) equity in the earnings of
Subsidiaries of the Company, but including dividends from such Subsidiaries to
the extent such amount has been received by the Company in cash or Cash
Equivalents during such period.
"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) net of (i) brokerage commissions and other 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, as a reserve required in accordance with GAAP consistently applied
against any liabilities associated with such Asset Sale and retained by the
Company, after such Asset Sale, including, without limitation, under any
indemnification obligations associated with such Asset Sale, all as reflected in
an Officers' Certificate delivered to the Trustee.
"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.
-11-
"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 11.04 and 11.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee complying with the requirements of Sections 11.04 and
11.05. 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.
"Permitted Holders" means ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 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 in an
aggregate amount not to exceed $15 million in aggregate principal amount at any
time outstanding, (ii) any Indebtedness of the Company to Renco in an aggregate
amount not to exceed $15 million in aggregate principal amount at any time
outstanding; PROVIDED that any such Indebtedness is contractually subordinated
in right of payment to the Company's obligations under the Securities; PROVIDED,
FURTHER, that if as of any date any person other than Renco or one of its
Wholly-Owned Subsidiaries owns or holds any such Indebtedness or holds a Lien in
respect of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness pursuant to this clause
(ii), (iii) the Securities and (iv) any renewals, extensions, substitutions,
refundings, refinancings or replacements of the Securities, 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.
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"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 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 arising from judgments, decrees or attachments in circumstances not
constituting an Event of Default and (viii) Liens permitted by the Pledge
Agreement.
"person" means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"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.
"Pledge Agreement" means the Pledge Agreement dated as of the Issue Date by
the Company in favor of the Trustee, as the same may be amended, amended and
restated, supplemented or
-13-
otherwise modified from time to time in accordance with its terms.
"Preferred Stock" means, with respect to any person, any and all shares,
interests, participation 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.
"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.
"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 February 3, 1998,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with the terms thereof.
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"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Release Notice" has the meaning provided in Section 10.03.
"Renco" means The Renco Group, Inc., a New York corporation, which is the
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.
"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 Interests" means the Liens on the Collateral created by the
Pledge Agreement in favor of the Trustee for the benefit of the Trustee and the
Holders of the Securities.
"Series A Notes" means the Company's 10 7/8% Senior Secured Notes due 2005,
Series A, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
"Series B Notes" means the Company's 10 7/8% Senior Secured Notes due 2005,
Series B, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
-15-
"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.
"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. Sections
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.
"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).
"Treasury Rate" means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled by, and
published in, the most recent Federal Reserve Statistical Release H.15 (519)
which has become publicly available at least two business days prior to the date
fixed for repurchase of the Securities following an Asset Sale consisting of the
Capital Stock of WCI (or, if such Statistical Release is no longer published,
any publicly available source of similar market data)) most nearly equal to the
then remaining life of the Securities until the Maturity Date; PROVIDED,
HOWEVER, that if the remaining life of the Securities is not equal to the
constant maturity of a United States Treas-
-16-
ury security for which a weekly average yield is given, the Treasury Rate shall
be obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the Maturity Date is within one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
"Trust Officer" means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"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.
"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.
"Valuation Date" has the meaning provided in Section 10.03.
"WCI" means WCI Steel, Inc., an Ohio corporation and a Wholly-Owned
Subsidiary of the Company.
"WCI Pledged Stock" means all of the Capital Stock of WCI now owned or from
time to time acquired by the Company and pledged pursuant to the Pledge
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, if applicable) 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, this Indenture. The following
TIA terms used in this Indenture have the following meanings:
-17-
"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
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Securities shall be exchanged for interests in like Global 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;
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(ii) receipt by Euroclear or CEDEL, as the case may be, of Owner
Securities Certifications described in the preceding paragraph;
(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
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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 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 $120,000,000 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 $120,000,000, 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.
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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 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
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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.
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.
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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 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, direc-
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tion 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 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 ac-
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cordance 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) 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
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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
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
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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 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 appropri-
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ately 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 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.
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(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).
(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
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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 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.
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(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.
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,
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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 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.
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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.
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.
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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 February 1, 2002, 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 February 1 of the years indicated below:
Year Percentage
2002....................................... 105.438%
2003....................................... 102.719%
2004 and thereafter........................ 100.000%
(b) In addition, at any time prior to February 1, 2001, 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 111% plus
accrued interest to the redemption date; PROVIDED that at least $80 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.
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.
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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
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;
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(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 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
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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 7/8%
per annum.
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 11.02.
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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 State Street
Bank and Trust Company, N.A., ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
as such office of the Company in accordance with this Section 4.02.
SECTION 4.03. LIMITATION ON RESTRICTED PAYMENTS.
The Company will not 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, repayment of Indebtedness
permitted to be incurred under this Indenture or the reimbursement of expenses
paid on behalf of the Company) or (b) purchase, redeem or otherwise acquire or
retire for value any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such Capital Stock (each
of the foregoing actions set forth in clauses (a) and (b) being referred to as a
"Restricted Payment"), if at the time of 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 pursuant to such Restricted Payment) shall exceed the sum of:
(x) 50% of the cumulative Net Cash Income (or if cumulative Net Cash
Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to January 31, 1998 and prior to the date the Restricted Payment
occurs (treating such period as a single accounting period); and
(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
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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 under Section 3.01(b));
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 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 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
Renco's 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
(4) the payment by the Company of a dividend to Renco on the Issue
Date in an amount not to exceed $100.0 million;
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PROVIDED that in the case of clause (2) 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) and (4)), 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) of
the first paragraph of this section.
SECTION 4.04. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five, 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 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
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(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.
SECTION 4.06. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) 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, or disposing of any of them, 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.
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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 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,
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the Company shall also comply with the provisions of TIA Section 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
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 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 (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 in the aggregate than those that might reasonably have been
obtained in a comparable transaction by the Company 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, the Company shall not enter into an
Affiliate Transaction or series of related Affiliate Transactions involving or
having a value
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of more than $5.0 million unless the Company 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, and such terms are no less favorable to the Company 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 the provisions of Section 4.03 and (ii)
reasonable and customary regular fees to directors of the Company who are not
employees of the Company.
(c) Notwithstanding anything to the contrary contained in clauses (a)
or (b) above or in this Indenture, the Company shall not make any Investment
after the Issue Date in any person in which Renco or any of its Affiliates
(other than the Company and its Subsidiaries) owns any Capital Stock.
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND
DISQUALIFIED CAPITAL STOCK.
(a) The Company will not (i) 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 or (ii)
issue any Disqualified Capital Stock.
(b) The Company shall not 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. OWNERSHIP OF WCI STOCK.
Other than the sale of all of the Capital Stock of WCI in compliance
with clause (b) of Section 4.16, the Company will at all times be the legal and
beneficial owner of all of the outstanding Capital Stock of WCI.
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SECTION 4.14. LIMITATION ON LIENS.
The Company will not 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 Pledge Agreement and (ii) upon any other
properties or assets of the Company 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)
in the case of clause (ii) only, Liens securing Indebtedness permitted to be
incurred pursuant to clause (i) of the definition of Permitted Indebtedness and
(B) in the case of clauses (i) and (ii), 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;
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(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;
(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
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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.
SECTION 4.16. LIMITATION ON ASSET SALES.
(a) The Company will not consummate any Asset Sale unless (i) such
Asset Sale is for at least Fair Market Value, (ii) at least 80% of the
consideration therefrom received by the Company is in the form of cash or Cash
Equivalents, (iii) if such Asset Sale involves the sale of Capital Stock of WCI
it shall be in compliance with the provisions of clause (b) below," and (iv) the
Company shall apply the Net Cash Proceeds of such Asset Sale (the "Available
Amount") within 180 days of receipt thereof to 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 (a), Net Cash Proceeds received from any Asset Sale if, and only to
the extent that, such Net Cash Proceeds are applied in compliance with Section
4.17 within 180 days of such Asset Sale; PROVIDED, FURTHER, that if at any time
any non-cash consideration received by the Company 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 under this
Indenture and the Net Cash Proceeds thereof shall be applied in accordance with
this Section 4.16; 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 $5.0 million resulting from one or more Asset Sales (at which time,
the entire unutilized Available Amount, and not just the amount in excess of
$5.0 million, shall be applied as required pursuant to this paragraph).
(b) Notwithstanding anything to the contrary contained in clause (a)
above or in this Indenture, the Company may not sell any of the Capital Stock of
WCI unless such Asset Sale involves the sale of all of the Capital Stock of WCI
and the Company uses the Net Cash Proceeds of such Asset Sale within 60 days of
receipt thereof to make an offer to purchase
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from all Holders of Securities, up to a maximum principal amount (expressed as a
multiple of $1,000) of Securities equal to the Net Cash Proceeds of such Asset
Sale, at a purchase price equal to the sum of the principal amount of the
Securities plus the Applicable Premium plus accrued and unpaid interest thereon,
if any, to the date of purchase. Any such offer to purchase Securities with the
Net Cash Proceeds of an Asset Sale involving the sale of all of the Capital
Stock of WCI shall comply with all the procedural and other requirements set
forth herein for an Asset Sale Offer. Upon the completion of such offer to
purchase, the WCI Pledged Stock shall be released from the Lien hereunder and
under the Pledge Agreement in compliance with Section 10.03. References in this
Indenture to an Asset Sale Offer shall include an offer to purchase pursuant to
this Section 4.16(b).
(c) 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.
(d) 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
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
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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.
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 surren-
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dered. 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.
(e) 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 Section 4.16 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 BUSINESS ACTIVITIES.
The Company will not engage in any business other than (i) the
ownership of the Capital Stock of WCI and (ii) the investing and reinvesting of
the assets of the Company other than the Capital Stock of WCI, and the
application of any proceeds therefrom, at the discretion of the Company.
SECTION 4.18. LIMITATION ON STATUS AS INVESTMENT COMPANY.
The Company will not, and will not permit any of its Subsidiaries or
controlled Affiliates to, conduct its business in a fashion that would cause the
Company to be required to register as an "investment company" (as that term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act")), or otherwise become subject to regulation under the Investment
Company Act.
SECTION 4.19. IMPAIRMENT OF SECURITY INTEREST.
The Company will not, and will 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 Trustee,
on behalf of itself and the Holders of the Securities, with respect to the
Collateral, and the Company shall not grant to any per-
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son (other than the Trustee on behalf of itself and the Holders of the
Securities) any interest whatsoever in the Collateral other than Liens permitted
by this Indenture and the Pledge Agreement.
SECTION 4.20. Amendment to Pledge Agreement.
The Company will not, and will not permit any of its Subsidiaries to,
amend, modify or supplement of, permit or consent to any amendment, modification
or supplement of, the Pledge Agreement in any way which would be adverse to the
Holders of the Securities or which would constitute a Default under this
Indenture or the Pledge Agreement.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets to, any person or adopt a Plan of Liquidation, unless:
(1) either (i) the Company shall be the surviving or continuing
corporation or (ii) the person (if other than the Company) formed by such
consolidation or into which the Company is merged or the person which
acquires by conveyance, transfer or lease the properties and assets of the
Company substantially as an entirety or in the case of a Plan of
Liquidation, the person to which assets of the Company have been
transferred (x) shall be a corporation organized and validly existing under
the laws of the United States or any State thereof or the District of
Columbia and (y) shall expressly assume, by supplemental indenture (in form
and substance satisfactory to the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the principal of, and premium, if
any, and interest on all of the Securities and the performance of every
covenant of the Securities and this Indenture on the part of the Company to
be performed or observed;
(2) immediately after giving effect to such transaction and the
assumption contemplated by clause (y) above,
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the Company (in the case of clause (i) of the foregoing clause (1) or such
person in the case of clause (ii) thereof) shall have a Consolidated Net
Worth (immediately after the transaction but prior to any purchase
accounting adjustments relating to such transaction) equal to or greater
than the Consolidated Net Worth of the Company immediately prior to such
transaction;
(3) immediately before and after giving effect to such transaction
and the assumption contemplated by clause (y) above (including giving
effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of the
transaction), no Default and no Event of Default shall have occurred or be
continuing;
(4) the Company or such person shall have delivered to the Trustee
(i) an Officers' Certificate and an Opinion of Counsel (which counsel shall
not be in-house counsel of the Company), each stating that such
consolidation, merger, conveyance, transfer or lease or Plan of Liquidation
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article Five and
that all conditions precedent herein provided relating to such transaction
have been satisfied and (ii) a certificate from the Company's independent
certified public accountants stating that the Company has made the
calculation required by clause (2) above in accordance with the terms of
this Indenture; and
(5) neither the Company nor any Subsidiary of the Company nor such
person, as the case may be, would thereupon become obligated with respect
to any Indebtedness (including Acquired Indebtedness), nor any of its
property or assets subject to any Lien, unless the Company or such
Subsidiary or such person, as the case may be, could incur such
Indebtedness (including Acquired Indebtedness) or create such Lien under
this Indenture (giving effect to such person being bound by all the terms
of this Indenture).
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more 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
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be the transfer of all or substantially all of the properties and assets of the
Company.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, merger, conveyance, lease or any transfer in
accordance with Section 5.01, the successor person formed by such consolidation
or into which the Company is merged or to which such conveyance, lease or
transfer is made will 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, and thereafter
(except in the case of a sale, assignment, transfer, lease, conveyance or other
disposition) the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture and the Securities.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on the 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 the 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
Pledge Agreement, and 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
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evidences of Indebtedness under which the Company or WCI then has
outstanding Indebtedness in excess of $7.5 million, 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 WCI then has outstanding
Indebtedness in excess of $7.5 million, 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 WCI 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
WCI then has outstanding Indebtedness in excess of $7.5 million,
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 WCI 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 $7.5
million shall be rendered against the Company or WCI 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 WCI (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;
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(9) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or WCI 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 WCI, (B) appoint a Custodian of
the Company or WCI 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) the Pledge Agreement ceases to be in full force and effect or the
Pledge Agreement ceases to give the Trustee the Liens, rights, powers and
privileges purported to be created thereby in any material respect.
A Default under clause (3) above (other than in the case of any
Default under Sections 4.13, 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 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 compli-
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ance 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 take
any action under the Pledge Agreement 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 Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of De-
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fault. 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 Pledge Agreement 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
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reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel) and the 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 for
amounts due under the Pledge Agreement;
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.
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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.
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.
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(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 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:
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(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.
(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 11.04 and 11.05. 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
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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.
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 Section 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 Section 313(a).
The Trustee also shall comply with TIA Sections 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
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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.
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.
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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.
The Company's obligations under this Section 7.07 and any Lien arising
hereunder or under the Pledge Agreement shall survive the resignation or removal
of any trustee, the discharge of the Company's obligations pursuant to Article
Eight and/or the termination of this Indenture.
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.
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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 the Trustee in its capacity as
collateral agent under the Pledge Agreement and any appointment of a successor
Trustee pursuant to this Indenture shall be deemed to be appointment of a
successor collateral agent under the Pledge Agreement and such successor shall
assume all of the obligations of the Trustee in its capacity as collateral agent
under the Pledge Agreement.
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 or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall, if such resulting, surviving or transferee corporation or national
banking association 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 Sections 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
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of TIA Section 310(a)(2). The Trustee shall comply with TIA Section 310(b);
PROVIDED, HOWEVER, that there shall be excluded from the operation of TIA
Section 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 Section
310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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
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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 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 (except in
respect of Liens on the Collateral), 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,
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"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 (except in respect of Liens on the Collateral), 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 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 4.20 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
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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
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;
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(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;
(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
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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) Notwithstanding the foregoing, the Opinion of Counsel required by
clause (d)(iv) above of this Section 8.02 need not be delivered if all
Securities not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, (ii) will become due and payable on the Maturity Date
within one year or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
(f) 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 (f), 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 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.
(g) Upon satisfaction by the Company of the conditions to its legal
defeasance or covenant defeasance, the Lien of this Indenture on all the
Collateral will terminate and all the Collateral will be released without any
further action by the Trustee hereunder or any other person.
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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 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
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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 Pledge
Agreement; or
(5) to comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA;
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 Pledge Agreement;
(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 Pledge Agreement in a manner adverse to any Holder;
(5) waive a default in the payment of the principal of, interest on,
or redemption payment or repurchase pay-
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ment 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 (including an offer to purchase with respect
to an Asset Sale involving the Capital Stock of WCI);
(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 Pledge Agreement 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 any Collateral, except in compliance with the terms
hereof and the Pledge Agreement or make any change in provisions relating
to the Collateral that adversely affects the Holders; 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 (including an
offer to purchase with respect to an Asset Sale involving the Capital Stock
of WCI) 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 Section 10.03 and in clause (b) of
Section 4.16), 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
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such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 9.03. COMPLIANCE WITH TIA.
From the date on which this 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 Section 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.
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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 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
SECTION 10.01. PLEDGE OF COLLATERAL.
(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 Trustee have simultaneously
with the execution of this Indenture entered into the Pledge Agreement, pursuant
to which the Company has granted to the Trustee for the benefit of the Trustee
and the Holders a first priority Lien on and security interest in the
Collateral.
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(b) Each Holder, by accepting a Security, consents and agrees to all
of the terms and provisions of the Pledge Agreement, 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 Pledge Agreement and this Indenture, and authorizes and
directs the Trustee to act as secured party with respect thereto.
(c) As set forth in and governed by the Pledge Agreement, 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, which are
necessary or advisable and shall do such other acts and execute such other
documents as may be required under the Pledge Agreement, from time to time, in
order to grant, perfect and maintain in favor of the Trustee for the benefit of
the Trustee and the Holders a valid and perfected first priority Lien on the
Collateral and to fully preserve and protect the rights of the Trustee and the
Holders under this Indenture.
The Company shall from time to time promptly pay and satisfy all
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Indenture and the Pledge Agreement, any amendments
thereto and any other instruments of further assurance. Without limiting the
generality of the foregoing covenant, in the event at any time the Trustee shall
determine that additional 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 Trustee.
(b) The Company shall, with respect to (i) below, promptly after the
initial issuance of the Securities, and with
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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 Pledge Agreement 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 Pledge
Agreement and reciting the details of such action, and stating that as to
the Liens created pursuant to the Pledge Agreement, 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, 1999, 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
the Pledge Agreement 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 the Pledge Agreement with respect to the Liens, or (b) to the
effect that, in the opinion of such counsel, no such action is necessary to
maintain such Liens.
SECTION 10.03. RELEASE OF COLLATERAL.
The Trustee shall not release Collateral from the Lien of the Pledge
Agreement unless such release is in accordance with the provisions of this
Section 10.03 and of the Pledge Agreement. To the extent applicable, the
Company shall cause TIA Section 314(d) relating to the release of property or
Liens to be complied with.
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(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 Pledge Agreement 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 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 of the WCI Pledged Stock subject to an
Asset Sale upon compliance with the condition precedent that the Company shall
have delivered to the Trustee the following:
(i) RELEASE NOTICE. A notice (a "Release Notice"), which shall (A)
refer to this Section 10.03, (B) attach all the documents referred to
below, (C) specify the value of the WCI Pledged Stock on a date within 60
days of the Release Notice (the "Valuation Date"), (D) certify that the
purchase price received is equal to the Fair Market Value of the WCI
Pledged Stock as of the date of such release, (E) confirm the sale of, or
an agreement to sell, the WCI Pledged Stock in a bona fide sale to a Person
that is not an Affiliate of the Company, 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 Trustee;
(ii) OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. An Officers'
Certificate and an Opinion of Counsel, each stating that (A) such Asset
Sale covers all the WCI Pledged Stock 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 all the WCI Pledged Stock will be applied
pursuant to Section 4.16(b), (C) there is no Default or Event of
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Default in effect or continuing on the date thereof, (D) the release of all
of the WCI Pledged Stock will not result in a Default or Event of Default
and (E) all conditions precedent to such release have been complied with;
(iii) 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 to be applied to
repurchase Securities from Holders accepting the offer to purchase pursuant
to Section 4.16(b); and
(iv) OTHER DOCUMENTS. Upon qualification of this Indenture under the
TIA, all documentation required by TIA Section 314(d).
Upon compliance with the conditions set forth in (b) above, and the
delivery by the Company of such other documents that the Trustee may reasonably
require, the Trustee shall execute, acknowledge (if applicable) and deliver to
the Company such counterpart within 10 Business Days after receipt by the
Trustee of a 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 Pledge Agreement shall be effective as against the Holders of
the Securities.
SECTION 10.04. TRUST INDENTURE ACT REQUIREMENTS.
The release of any Collateral from the Pledge Agreement or the release
of, in whole or in part, the Liens created by the Pledge Agreement, will not be
deemed to impair the Lien of the Pledge Agreement in contravention of the
provisions hereof if and to the extent the Collateral or Liens are released
pursuant to the Pledge Agreement 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 Pledge Agreement and the terms
hereof will not be deemed for any purpose to be an impairment of the Liens
created pursuant to the Pledge Agreement in contravention of the terms of this
Indenture. Without limitation, the Company and each other obligor on the
Securities shall cause TIA Section 314(d) relating to the release of property or
securities from the Liens of each hereof and of the Pledge Agreement to be com-
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plied with. Any certificate or opinion required by TIA Section 314(d) may be
made by an officer of the Company, except in cases which TIA Section 314(d)
requires that such certificate or opinion be made by an independent person.
SECTION 10.05. SUITS TO PROTECT COLLATERAL.
Subject to the provisions of the Pledge Agreement, 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 Pledge Agreement 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).
SECTION 10.06. PURCHASER PROTECTED.
In no event shall any purchaser in good faith of any property
purported to be released hereunder be bound to ascertain the authority of the
Trustee 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 10.07. 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.
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SECTION 10.08. DETERMINATIONS RELATING TO COLLATERAL.
In the event (i) the Trustee shall receive any written request from
the Company under the Pledge Agreement 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 under the provisions of the Pledge Agreement
any performance or the delivery of any instrument or (iii) the Trustee 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 the Pledge
Agreement, then, in each such event, the Trustee 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.
SECTION 10.09. FORM AND SUFFICIENCY OF RELEASE.
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 Section 10.03 may be sold,
exchanged or otherwise disposed of by the Company, and the Company requests the
Trustee to furnish a written disclaimer, release or quitclaim of any interest in
such property under the Pledge Agreement, the Trustee shall promptly 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 Pledge Agreement.
SECTION 10.10. 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
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deliver such releases, termination statements and other instruments as the
Company may reasonably request evidencing the termination of the Liens created
by the Pledge Agreement and (ii) not be deemed to hold the Liens for the benefit
of the Holders.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. 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 11.02. 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:
Renco Steel Holdings, Inc.
c/o The Renco Group, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: President
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., c/o Managing
Attorneys' Office
if to the Trustee:
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
The Company and the Trustee, by written notice to each other, may
designate additional or different addresses for notices to such person. Any
notice or communication to the Company or the Trustee 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 Section 310(b), TIA Section 313(c), TIA
Section 314(a) and TIA Section 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
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with respect to other Securityholders. If a notice or communication is mailed
in the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 11.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 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 Section 312(c).
SECTION 11.04. 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 11.05. 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
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whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with.
SECTION 11.06. 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 11.07. 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 11.08. 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 11.09. 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 11.10. 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
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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.
SECTION 11.11. 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 11.12. 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 11.13. 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.
RENCO STEEL HOLDINGS, INC.,
as Issuer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President and Chief
Financial Officer
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
[FORM OF SERIES A NOTE]
[If a restricted security, then insert -- THIS SECURITY (OR ITS PREDECESSOR) HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (A)
REPRESENTS THAT (1) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) (A "QIB") OR (2) IT HAS ACQUIRED THIS SECURITY IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT; (B) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (1) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (2) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN
AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (4) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (5) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (7) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (C)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING.
[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.
A-1
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.]
[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
RENCO STEEL HOLDINGS, INC.
10 7/8% Senior Secured Note
due 2005, Series A
No. $
RENCO STEEL HOLDINGS, 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 February 1, 2005.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
To the extent set forth in the Pledge Agreement, payment hereof is
secured, on an equal and ratable basis with all other Securities, by a valid,
perfected first priority security interest in the Collateral (as defined in the
Indenture), the terms of which security interest are more fully set forth in the
Pledge Agreement.
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: February 3, 1998 RENCO STEEL HOLDINGS, INC.
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
A-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATIONThis is one of the Securities
described in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By
---------------------------------
Authorized Signatory
A-5
RENCO STEEL HOLDINGS, INC.
10 7/8% Senior Secured Note
due 2005, Series A
1. INTEREST.
RENCO STEEL HOLDINGS, 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 February 1 and August 1 of each year (the "Interest Payment Date"),
commencing August 1, 1998. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at a rate equal to 12
7/8% 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, State Street Bank and Trust Company (the "Trustee"), will
act as Paying Agent and Registrar. The Com-
A-6
pany 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
February 3, 1998 (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 7/8% Senior Secured Notes due 2005, Series A (the "Series A
Securities"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $120,000,000. 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
SectionSection 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
$120,000,000.
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 7/8% Senior
Secured Notes due 2005, 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 February 1, 2002 at the
redemption prices (expressed as percentages of principal amount) set forth below
plus ac-
A-7
crued interest to the redemption date, if redeemed during the 12-month period
beginning on February 1 of the years indicated below:
Year Percentage
2002............................................ 105.438%
2003............................................ 102.719%
2004 and thereafter............................. 100.000%
In addition, at any time prior to February 1, 2001, 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 111% plus
accrued interest to the redemption date; provided that at least $80 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 provi
A-8
sions 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.
10. COLLATERAL.
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 a first
priority security interest in the WCI Pledged Stock.
Each Holder, by accepting a Security, agrees to all of the terms and
provisions of the Pledge Agreement, 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 Pledge Agreement 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 the
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 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
A-11
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).
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:
RENCO STEEL HOLDINGS, INC., c/o The Renco Group, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn.: President.
A-13
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
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 Two 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.
A-13
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:
Principal Amount of this
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-14
[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 onthe front of this Security)
Signature Guarantee:__________________________________________
A-15
[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-16
EXHIBIT B
[FORM OF SERIES B NOTE]
RENCO STEEL HOLDINGS, INC.
10 7/8% Senior Secured Note
due 2005, Series B
No. $
RENCO STEEL HOLDINGS, 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 February 1, 2005.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
To the extent set forth in the Pledge Agreement, payment hereof is
secured, on an equal and ratable basis with all other Securities, by a valid,
perfected first priority security interest in the Collateral, the terms of which
security interest are more fully set forth in the Pledge Agreement.
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.
B-1
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated: RENCO STEEL HOLDINGS, INC.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
B-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-----------------------------------
Authorized Signatory
B-3
RENCO STEEL HOLDINGS, INC.
10 7/8% Senior Secured Note
due 2005, Series B
1. Interest.
RENCO STEEL HOLDINGS, 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 February 1 and August 1 of each year (the "Interest Payment Date"),
commencing August 1, 1998. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.The Company shall pay interest on overdue principal
and interest on overdue installments of interest, to the extent lawful, at a
rate equal to 12 7/8% 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, State Street Bank and Trust Company (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
February 3, 1998 (the "Indenture"), by and between the Company and the Trustee.
This Security is one of a duly
B-4
authorized issue of Securities of the Company designated as its 10 7/8% Senior
Secured Notes due 2005, Series B (the "Series B Securities"), limited (except as
otherwise provided in the Indenture) in aggregate principal amount to
$120,000,000. 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 Sections 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 $120,000,000.
5. Exchange Offer.
The Series B Securities were issued pursuant to an exchange offer
pursuant to which 10 7/8% Senior Secured Notes due 2005, 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 February 1, 2002, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued interest to the redemption date, if redeemed during the --month
period beginning on February 1 of the years indicated below:
Year Percentage
2002............................................ 105.438%
2003............................................ 102.719%
2004 and thereafter............................. 100.000%
In addition, at any time prior to February 1, 2001, 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 111% plus
accrued interest to the redemption date; provided that at least $80 mil-
B-5
lion 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.
9. Limitation on Disposition of Assets.
Under certain circumstances, the Company is required to apply the net
proceeds from Asset Sales to repurchase Securities.
10. Collateral.
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
B-6
terms of the Securities and the Indenture, the Company has granted a first
priority security interest in the WCI Pledged Stock.
Each Holder, by accepting a Security, agrees to all of the terms and
provisions of the Pledge Agreement, 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 Pledge Agreement 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 the
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
B-7
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.
16. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company 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.
B-8
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 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.
B-9
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:
RENCO STEEL HOLDINGS, INC., c/o The Renco Group, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn.: President.
B-10
[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 onthe front of this Security)
Signature Guarantee:__________________________________________
B-11
[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-12
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
Renco Steel Holdings, Inc.
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
In connection with our proposed purchase of $ aggregate
principal amount of the 10 7/8% Senior Secured Notes due 2005 (the "Notes") of
Renco Steel Holdings, 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 two 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 $250,000, (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
D-1
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) 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 $250,000 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
RENCO STEEL HOLDINGS, INC.
10 7/8% Senior Secured Notes due 2005
CUSIP No.______
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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.
E-1
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 Company and the Initial Purchasers.
Dated: __________, ____
By:________________________________
As, or as agent for, the beneficial
owner(s) of the Securities to which this
certificate relates.
E-2
EXHIBIT F
[FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR
CEDEL BANK, SOCIETE ANONYME]
DEPOSITORY SECURITIES CERTIFICATION
RENCO STEEL HOLDINGS, INC.
10 7/8% Senior Secured Notes due 2005
CUSIP No. ________
Reference is hereby made to the Indenture, dated as of February 3, 1998 (the
"Indenture"), by and between Renco Steel Holdings, Inc., as issuer, and State
Street Bank and Trust Company, 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
-------------------------
(1) Unless ▇▇▇▇▇▇ 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
rights or collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
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 Company and the Initial Purchaser.
Dated: ___________, ____
Yours faithfully,
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as operator of theEuroclear 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
RENCO STEEL HOLDINGS, INC.
10 7/8% Senior Secured Notes due 2005
CUSIP No._________
Reference is hereby made to the Indenture, dated as of February 3, 1998 (the
"Indenture"), by and between Renco Steel Holdings, Inc., as issuer, and State
Street Bank and Trust Company, 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 Company 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
State Street Bank and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Renco Steel Holdings, Inc.
10 7/8% Senior Secured Notes
due 2005 (the "Securities")
----------------------------
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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;]
(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].
------------------------
(1) Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
H-2
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 Company and the Initial Purchaser.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: __________________
cc: Renco Steel Holdings, Inc.
H-3
EXHIBIT I
FORM OF CERTIFICATION FOR TRANSFER OR EXCHANGE OF
RESTRICTED GLOBAL SECURITY TO
PERMANENT REGULATION S GLOBAL SECURITY
State Street Bank and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Renco Steel Holdings, Inc.
10 7/8% Senior Secured Notes
due 2005 (the "Securities")
----------------------------
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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;]
(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.
------------------------
(1) Insert one of these twp provisions, which come fromthe definition of
"offshore transactions" in Regulation S.
I-2
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 Company and the Initial Purchaser.
[Insert Name of Transferor]
By:
----------------------------
Name:
Title:
Dated: ________________
CC: Renco Steel Holdings, Inc.
I-3
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
State Street Bank and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Renco Steel Holdings, Inc.
10 7/8% Senior Secured Notes
due 2005 (the "Securities")
----------------------------
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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 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
J-1
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 Company and the Initial Purchaser.
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
Dated: __________________
cc: Renco Steel Holdings, Inc.
J-2
EXHIBIT K-1
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
State Street Bank and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Renco Steel Holdings, Inc.
10 7/8% Senior Secured Notes
due 2005 (the "Securities")
----------------------------
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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;
K-1-1
(B) such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A; and
(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.
K-1-2
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 Company and the Initial Purchaser.
Dated: _____________, ____
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
cc: Renco Steel Holdings, Inc.
K-1-3
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
State Street Bank and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Renco Steel Holdings, Inc.
10 7/8% Senior Secured Notes
due 2005 (the "Securities")
----------------------------
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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;
K-2-1
(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 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
K-2-2
herein are made for your benefit and the benefit of the Company and the Initial
Purchaser.
Dated: _____________, ____
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
cc: Renco Steel Holdings, Inc.
K-2-3
EXHIBIT L-1
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL PERMANENT REGULATION S
SECURITY TO RESTRICTED GLOBAL SECURITY
State Street Bank and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Renco Steel Holdings, Inc.
10 7/8% Senior Secured Notes
due 2005 (the "Securities")
----------------------------
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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.
L-1-1
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 Company and the Initial Purchaser.
Dated: _____________, ____
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
cc: Renco Steel Holdings, Inc.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL PERMANENT REGULATION S
SECURITY TO PERMANENT REGULATION S GLOBAL SECURITY
State Street Bank and Trust Company,
as Trustee
▇▇▇▇▇▇▇ Square
225 Asylum, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Renco Steel Holdings, Inc.
10 7/8% Senior Secured Notes
due 2005 (the "Securities")
----------------------------
Reference is hereby made to the Indenture, dated as of February 3,
1998 (the "Indenture"), by and between Renco Steel Holdings, Inc., as issuer,
and State Street Bank and Trust Company, 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;
L-2-1
(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 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.
L-2-2
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 Company and the Initial Purchaser.
Dated: _____________, ____
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
cc: Renco Steel Holdings, Inc.
L-2-3