EXCHANGE AGENT AGREEMENT
Exhibit 99.5
| April , 2007 |
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
WCI Steel, Inc., a Delaware corporation (the
“Company”), proposes to make an offer (the
“Exchange Offer”) to exchange up to $100,000,000
aggregate principal amount of its registered 8% Senior
Secured Notes due 2016 issued under an indenture dated as of
May 1, 2006 (the “New Notes”) for a like
principal amount of its outstanding unregistered 8% Senior
Secured Notes due 2016 issued under said indenture (the
“Old Notes”). The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus
(the “Prospectus” included in the Company’s
registration statement on
Form S-4
(File
No. 333- )
as amended (the “Registration Statement”)) filed with
the Securities and Exchange Commission (the “SEC”),
and proposed to be distributed to all record holders of the Old
Notes. The Old Notes and the New Notes are collectively referred
to in this Exchange Agent Agreement (this “Agreement”)
as the “Notes” or the “Securities.”
Capitalized terms used herein and not defined shall have the
respective meanings ascribed to them in the Registration
Statement or the accompanying letter of transmittal (the
“Letter of Transmittal”).
The Company hereby appoints Wilmington Trust Company to act as
exchange agent (the “Exchange Agent”) in connection
with the Exchange Offer. References hereinafter to
“you” shall refer to Wilmington Trust Company.
The Exchange Offer is expected to be commenced by the Company on
or about April , 2007. The Letter of
Transmittal accompanying the Registration Statement is to be
used by the holders of the Old Notes to tender into the Exchange
Offer, and contains instructions with respect to the delivery of
Old Notes tendered. The Exchange Agent’s obligations with
respect to receipt and inspection of the Letter of Transmittal
in connection with the Exchange Offer shall be satisfied for all
purposes hereof by (1) inspection of the electronic message
transmitted to the Exchange Agent by Exchange Offer participants
in accordance with the Automated Tender Offer Program
(“ATOP”) of the Depositary Trust Company
(“DTC”), and by otherwise observing and complying with
all procedures established by DTC in connection with ATOP, to
the extent that ATOP is utilized by Exchange Offer participants,
or (2) by inspection of the Letter of Transmittal by each
respective holder of Old Notes.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on April , 2007, or on such later date or
time to which the Company may extend the Exchange Offer (the
“Expiration Date”). Subject to the terms and
conditions set forth in the Registration Statement, the Company
expressly reserves the right to extend the Exchange Offer from
time to time and may extend the Exchange Offer by giving oral
(confirmed in writing) or written notice to you at any time
before 9:00 a.m., New York City time, on the business day
following the previously scheduled Expiration Date, and in such
case the term “Expiration Date” shall mean the time
and date on which the Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole
discretion, to delay, amend or terminate the Exchange Offer, and
not to accept for exchange any Old Notes not theretofore
accepted for exchange, in among other cases upon the occurrence
of any of the conditions of the Exchange Offer specified in the
Registration Statement under the caption “The Exchange
Offer Expiration Date; Extensions; Termination;
Amendments.” The Company will give to you as promptly as
practicable oral (confirmed in writing) or written notice of any
delay, amendment, termination or non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth herein or in the section of the
Registration Statement captioned the “The Exchange
Offer”, in the Letter of Transmittal accompanying the
Registration Statement and such duties which are necessarily
incidental thereto.
2. You will establish a book-entry account with respect to
the Old Notes at The Depository Trust Company (the
“Book-Entry Transfer Facility”) for purposes of the
Exchange Offer within two business days after the date of the
Registration Statement, and any financial institution that is a
participant in the Book-Entry Transfer Facility’s systems
may make book-entry delivery of the Old Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into
your account in accordance with the Book-Entry Transfer
Facility’s procedure for such transfer.
3. You are to examine each of the Letters of Transmittal
and certificates for Old Notes (or confirmation of book-entry
transfers into your account at the Book-Entry Transfer Facility)
and any other documents delivered or mailed to you by or for
holders of the Old Notes to ascertain whether: (i) the
Letters of Transmittal, certificates and any such other
documents purport to be duly executed and properly completed in
accordance with instructions set forth therein and in the
Registration Statement and that such book-entry confirmations
are in due and proper form and contain the information required
to be set forth therein, and (ii) the Old Notes have
otherwise been properly tendered. In each case where the Letter
of Transmittal or any other document has been improperly
completed or executed or where book-entry confirmations are not
in due and proper form or omit certain information or any of the
certificates for Old Notes are not in proper form for transfer
or some other irregularity in connection with the acceptance of
the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and
to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. With the approval of the Chief Financial Officer,
Secretary or any Vice President of the Company (such approval,
if given orally, promptly to be confirmed in writing) or any
other party designated by such officer in writing, you are
authorized to waive any irregularities in connection with any
tender of Old Notes pursuant to the Exchange Offer. You are not
otherwise authorized to waive any such irregularities.
5. Tenders of Old Notes may be made only as set forth in
the Letter of Transmittal and in the section of the Registration
Statement captioned “The Exchange Offer —
Procedures for Tendering, Consenting and Electing the Exchange
Consideration” and Old Notes shall be considered properly
tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Notes which the Chief Financial Officer, Secretary or any Vice
President of the Company or any other party designated by any
such officer in writing shall approve as having been properly
tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in
writing).
6. You shall promptly advise the Company with respect to
any Old Notes delivered subsequent to the Expiration Date and
accept its instructions with respect to disposition of such Old
Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Notes provided that customary transfer requirements, including
any payment of applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated
and as permitted in the Letter of Transmittal and return any
untendered Old Notes to the holder (or such other person as may
be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange
Offer. A new certificate for the remainder of the principal
amount of the Old Notes will be sent to the holders of Old Notes
unless otherwise indicated by partial tendering holders of Old
Notes.
8. Upon satisfaction or waiver of all of the conditions to
the Exchange Offer , the Company will notify you (such notice if
given orally, promptly to be confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old Notes
properly tendered and you, on behalf of the Company, will cause
the exchange of such Old Notes for New Notes and cause such Old
Notes to be cancelled. Delivery of New Notes, as the case may
be, will be made on behalf of the Company by the trustee at the
rate of $1,000 principal amount of New Notes (subject to
adjustment) for each $1,000 principal amount of the Old Notes
tendered, and, in the case of Old Notes tendered, promptly after
notice (such notice if
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given orally, promptly to be confirmed in writing) of acceptance
of said Old Notes by the Company; provided,
however, that in all cases, Old Notes tendered pursuant
to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Old Notes (or
confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) and an
Agent’s Message (as defined in the Registration Statement)
with any required signature guarantees and any other required
document. Unless otherwise instructed in writing by the Company,
you shall issue $1,000 in principal amount of New Notes in
exchange for each $1,000 principal amount of Old Notes accepted
in the exchange offer, unless a holder has an Old Note in a
principal amount not in an integral multiple of $1,000, in which
case you shall issue the exchange note in such amount.
9. Tenders pursuant to the Exchange Offer are irrevocable
after the Expiration Date. Subject to the terms and upon the
conditions set forth in the Registration Statement and the
Letter of Transmittal, Old Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date in accordance with the terms of the Exchange
Offer.
10. The Company shall not be required to exchange any Old
Notes tendered if any of the conditions set forth in the
Registration Statement are not met. Notice of any decision by
the Company not to exchange any Old Notes tendered shall be
given (such notices if given orally, promptly shall be confirmed
in writing) by the Company to you.
11. If, pursuant to the Registration Statement, the Company
does not accept for exchange all or part of the Old Notes
tendered because of an invalid tender, the occurrence of certain
other events set forth in the Registration Statement or
otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those certificates
for unaccepted Old Notes (or effect appropriate book-entry
transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such
book-entry transfer).
12. All certificates for reissued Old Notes, unaccepted Old
Notes or New Notes, as the case may be (other than those
effected by book-entry transfer), shall be forwarded by
(a) first-class mail, postage pre-paid under a blanket
surety bond protecting you and the Company from loss or
liability arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured separately
for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any
persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the Old Notes deposited with you
pursuant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or
genuineness of the New Notes or the Registration Statement;
(b) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any
expense or liability, unless you shall have been furnished with
reasonable indemnity;
(c) shall not be liable to the Company for any action taken
or omitted by you, or any action suffered by you to be taken or
omitted, without gross negligence, willful misconduct or bad
faith on your part, by reason of or as a result of the
administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any
written or oral instructions delivered to you pursuant hereto,
and may reasonably rely on and shall be protected in acting in
good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security
delivered to you and reasonably believed by you to be genuine
and to have been signed by the proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to
its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
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(e) may rely on and shall be protected in acting upon
written notice or oral instructions from the Chief Financial
Officer, Secretary or any Vice President of the Company or any
other party designated by any such officer of the Company;
(f) shall not advise any person tendering Old Notes
pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of Old Notes or as to
the market value, decline or appreciation in market value of any
Old Notes that may or may not occur as a result of the Exchange
Offer or as to the market value of the Exchange Notes;
(g) may consult with counsel with respect to any questions
relating to your duties and responsibilities, and the written
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in
reliance thereon; and
(h) shall act solely as agent of the Company and shall not
assume any obligation, or relationship of agency or trust for
or, with any of the owners or holders of the Old Notes.
15. You shall send to all holders of Old Notes a copy of
the Registration Statement, the Letter of Transmittal, the
Notice of Guaranteed Delivery (as defined in the Registration
Statement) and such other documents (collectively, the
“Exchange Offer Documents”) as may be furnished by the
Company to commence the Exchange Offer and take such other
action as may from time to time be requested by the Company or
its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Exchange Offer Documents
or such other forms as may be approved from time to time by the
Company, to all holders of Old Notes and to all persons
requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange
Offer , provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange
Offer . The Company will furnish you with copies of such
documents at your request. All other requests for information
relating to the Exchange Offer shall be directed to the Company,
Attention: Chief Financial Officer or Secretary, at the
Company’s offices at 0000 Xxxx Xxxxxx, XX, Xxxxxx, Xxxx
00000-0000,
telephone
number: .
16. You shall advise by facsimile transmission, email,
telephone or by access to the
e-room
established for this Exchange Offer, and promptly thereafter
confirm in writing to the Chief Financial Officer or Secretary
of the Company, and such other person or persons as the Company
may request in writing, daily, and more frequently during the
week immediately preceding the Expiration Date and if otherwise
requested, up to and including the Expiration Date, as to the
aggregate principal amount of Old Notes which have been tendered
pursuant to the Registration Statement and the items received by
you pursuant to the Exchange Offer and this Agreement,
separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition,
you will also inform, and cooperate in making available to, the
Company or any such other person or persons as the Company
requests in writing from time to time prior to the Expiration
Date of such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation,
the granting by you to the Company and such person as the
Company may request of access to those persons on your staff who
are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate
principal amount of Old Notes tendered, the aggregate principal
amount of Old Notes accepted and the identity of any
participating broker-dealers and the aggregate principal amount
of Exchange Notes delivered to each, and deliver said list to
the Company.
17. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date and, after the
expiration of the Exchange Offer, the time of receipt thereof
shall be preserved by you for a period of time at least equal to
the period of time you customarily preserve other records
pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by you to the
Company. You shall dispose of unused Letters of Transmittal and
other surplus materials in accordance with your customary
procedures.
18. You hereby expressly waive any lien, encumbrance or
right of set-off whatsoever that you may have with respect to
funds deposited with you for the payment of transfer taxes by
reasons of amounts, if any, borrowed by the Company, or any of
its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and shall
deliver or cause to be delivered, in a timely manner, to each
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governmental authority to which any transfer taxes are payable
in respect of the exchange of Old Notes your check in the amount
of all transfer taxes so payable, and the Company shall
reimburse you for the amount of any and all transfer taxes
payable in respect of the exchange of Old Notes;
provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment
of any such transfer taxes, at such time as such refund is
received by you.
19. For services rendered as Exchange Agent hereunder you
shall be entitled to such compensation and reimbursement of
out-of-pocket
expenses as agreed in the attached Schedule A.
20. You hereby acknowledge receipt of the Registration
Statement, the Letter of Transmittal and the other documents
associated with the Exchange Offer attached hereto and further
acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the
Registration Statement, the Letter of Transmittal and such other
forms (as they may be amended from time to time), on the other
hand, shall be resolved in favor of the Registration Statement,
the Letter of Transmittal and such other forms, except with
respect to the duties, liabilities and indemnification of you as
Exchange Agent which shall be controlled by this Agreement.
21. The Company agrees to indemnify and hold you harmless
in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorneys’
fees and expenses, arising out of or in connection with your
appointment as Exchange Agent and the performance of your duties
hereunder, including, without limitation, any act, omission,
delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request,
notice, instruction or other instrument or document reasonably
believed by you to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Old Notes
reasonably believed by you in good faith to be authorized, and
in delaying or refusing in good faith to accept any tenders or
effect any transfer of Old Notes; provided,
however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your gross negligence,
willful misconduct or bad faith. The Company shall be entitled
to participate, at its own expense, in the defense of any such
claim or other action and, if the Company so elects, the Company
may assume the defense of any pending or threatened actions
against you in respect of which indemnification may be sought
hereunder. Notwithstanding the foregoing, you may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. Without the prior written consent of
the Company, which consent will not be unreasonably withheld,
you shall not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or
proceeding in respect of which indemnification could be sought
in accordance with the indemnification provisions of this
Agreement. The Company’s obligations under this
paragraph 21 shall survive the termination of this
Agreement and the discharge of your obligation hereunder and any
other termination of this Agreement under any federal or state
bankruptcy law.
22. You shall arrange to comply with all requirements under
the tax laws of the United States, relevant to the performance
of your duties hereunder including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports
with the Internal Revenue Service. The Company understands that
you are required, in certain instances, to deduct thirty and one
half percent (30.5%) with respect to interest paid on the New
Notes and proceeds from the sale, exchange, redemption or
retirement of the New Notes from holders who have not supplied
their correct Taxpayer Identification Numbers or required
certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the
laws of the State of New York applicable to agreements made and
to be performed entirely within such state, and without regard
to conflicts of law principles, and shall inure to the benefit
of, and the obligations created hereby shall be binding upon,
the successors and assigns of each of the parties hereto and
nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or Exchange Notes
shall have any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
24. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement.
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25. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of the party to be charged.
27. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile) and shall be given to such party,
addressed to it, as its address or telecopy number set forth
below:
If to the Company:
WCI Steel, Inc.
000 Xxxx Xxxxxx X.X.
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Vice President — Finance
000 Xxxx Xxxxxx X.X.
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Vice President — Finance
If to the Exchange Agent:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Operations
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Operations
28. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Paragraphs 18, 19, 21
and 22 shall survive the termination of this Agreement.
29. This Agreement shall be binding and effective as of the
date hereof.
[Signature
Page Follows]
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the
enclosed copy.
| By: |
|
Name: Xxxxxxx X. Xxxxx
| Title: | Vice President — Finance |
Accepted as the date
first above written:
WILMINGTON TRUST COMPANY,
as Exchange Agent
| By: |
|
Name:
| Title: |
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