SUPPLEMENTAL INDENTURE dated as of November 4, 1998, between
REPUBLIC ENGINEERED STEELS, INC., a Delaware corporation, as Issuer (the
"Company") and BANKERS TRUST COMPANY, a New York banking corporation, as Trustee
(the "Trustee").
WHEREAS, the Company has executed and delivered an Indenture
dated as of December 15, 1993 (the "Original Indenture") between the Company and
the Trustee providing for the issuance of $200,000,000 principal amount of
9-7/8% First Mortgage Notes Due 2001 of the Company;
WHEREAS, Section 9.1(g) of the Original Indenture provides
that the Original Indenture may be amended without the consent of any
Securityholder to make any change that does not adversely affect the rights of
any Holder; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid and binding instrument in accordance with its terms and the
terms of the Original Indenture have been satisfied;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the Company and the Trustee hereby agree as
follows:
SECTION 1. Defined Terms. For all purposes of this
Supplemental Indenture, including the Recitals, except as otherwise expressly
provided or unless the context otherwise requires, all capitalized terms used
and not defined herein that are defined in the Original Indenture shall have the
meanings assigned to them in the Original Indenture.
SECTION 2. Assignment of Rights in respect of Change of
Control Offers. Section 4.15 is hereby amended by adding the following
paragraphs before the final paragraph of such Section:
Notwithstanding the foregoing, the Company may assign to any
Person (the "Assignee"), its rights pursuant to the foregoing paragraph
as they may relate to all or any portion of the Securities tendered in
a Change of Control Offer. To the extent of any such assignment, the
Company's obligations under Section 4.15 to purchase Notes shall be
discharged if the Assignee shall (i) purchase such Securities or
portions thereof validly tendered and not properly withdrawn pursuant
to the Change of Control Offer as to which the assignment is made and
(ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Securities or portions thereof so tendered in connection
with the assignment, whereupon the Assignee shall be entitled to have
delivered to it or to its nominee the Securities so purchased. Upon
completion of any Change of Control Offer in connection with which an
assignment is made, the Company shall deliver to the Trustee an
Officers' Certificate setting forth all of the Securities or portions
thereof tendered to and accepted for payment pursuant to the Change of
Control Offer. The Paying Agent shall promptly mail or deliver to the
Holders of Securities purchased by the Company or the Assignee payment
in an amount equal to the purchase price, and the
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Trustee shall promptly authenticate and mail or deliver to such Holders
a new Security equal in principal amount to any unpurchased portion of
the Security surrendered. No assignment made pursuant to this paragraph
shall relieve the Company of its obligations under the foregoing
paragraph in the event that the Assignee shall fail to deposit with the
Paying Agent money sufficient to pay the purchase price in respect of
Securities or portions thereof as to which an assignment has been made
pursuant to this paragraph. Nothing herein shall imply or create any
liability by the Assignee to any Holder should the Assignee fail to
make such deposit and purchase the assigned Securities nor shall any
Assignee have any liability in respect of the Change of Control Offer.
The delivery to the Trustee of Securities accepted for payment
pursuant to a Change of Control Offer may be for the purpose of
transfer of registration or exchange or for the purpose of
cancellation, as directed by the Company.
Any Securities acquired by the Assignee pursuant to an
assignment by the Company or acquired by the Company and held for the
account of the Company shall take the form of certificated securities
and shall bear substantially the following legend:
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE [date of original assignment to Assignee] AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES 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 RULE
501(a)(1), (2),
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(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
SECTION 3. Amended Event of Default. Section 6.1(a) is hereby
amended by deleting clause (iii) and substituting the following new clause in
replacement thereof:
(iii) the Company defaults in the performance, or breach, of
any covenant in this Indenture (other than defaults specified in clause
(i) or (ii) above), or the Company defaults in performance of any
tender offer made by the Company for the Securities, and such default
or breach continues for a period of 30 days after written notice to the
Company by the Trustee or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the outstanding
Securities; or
SECTION 4. Correction of Defect in Section 4.15. The first
sentence of the penultimate paragraph of Section 4.15 is hereby amended to read
in its entirety as follows:
On the Business Day immediately following the Change of
Control Payment Date (but in no event later than 60 days following the
Change of Control 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 money sufficient to
pay the purchase price of all Securities or portions thereof so
tendered and accepted, provided that the payment for such Securities
shall include accrued and unpaid interest, if any, to such Business Day
immediately following the Change of Control Payment Date on which such
purchase price is paid, and (iii) deliver to the Trustee the Securities
so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof tendered to and accepted for payment by
the Company.
SECTION 5. Scope of Supplemental Indenture. Nothing in this
Supplemental Indenture, expressed or implied, is intended or shall be construed
to confer upon or give to any person or corporation, other than the parties
hereto and the holders of the Securities, any right, remedy or claim under or by
reason of this Supplemental Indenture or any covenant, stipulation, promise or
agreement contained herein; all the covenants, stipulations, promises and
agreements
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contained herein are for the sole and exclusive benefit of the parties hereto
and their successors, and the holders from time to time of the Securities.
SECTION 6. Ratification of Indenture. This Supplemental
Indenture shall form a part of the Original Indenture for all purposes and every
holder of Securities heretofore or hereafter authenticated and delivered under
the Original Indenture shall be bound hereby. The Original Indenture is hereby
in all respects ratified and confirmed.
SECTION 7. The Trustee. The Trustee, for itself and its
successor or successors, accepts the trust of the Indenture and agrees to
perform the same, but only upon the terms and conditions set forth in the
Indenture, including the terms and provisions defining and limiting the
liabilities and responsibilities of the Trustee, which terms and provisions
shall in like manner define and limit its liabilities and responsibilities in
the performance of the trust created by the Indenture, and, without limiting the
generality of the foregoing, the recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture other than as to the validity of its
execution and delivery by the Trustee.
SECTION 8. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 9. Governing Law. The laws of the State of New York
shall govern this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the date first written
above.
REPUBLIC ENGINEERED STEELS, INC.
as the Issuer
By: /s/ Xxxxx Xxxxxxx
______________________________
Name: Xxxxx Xxxxxxx
Title: Secretary
BANKERS TRUST COMPANY
as Trustee
By: /s/ Xxxxxx Xxxxxxxx
______________________________
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
