EXHIBIT 4.9
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
CUSIP No. __________
ISIN _______________
No. R-1 $550,000,000
Form of
10 1/4% Senior Note due 2012
UCAR Finance Inc., a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of Five Hundred Fifty Million
Dollars on February 15, 2012.
Interest Payment Dates: February 15 and August 15, commencing August
15, 2002.
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated:
UCAR FINANCE INC.,
by
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the
Securities referred to in
the Indenture.
STATE STREET BANK AND TRUST COMPANY
as Trustee,
by
- -----------------------------
Authorized Signatory
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10 1/4% Senior Note due 2012
1. Interest
--------
UCAR Finance Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above; PROVIDED, HOWEVER, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per annum
(increasing by an additional 0.50% per annum after each subsequent 90-day period
that occurs after the date on which such Registration Default occurs up to a
maximum additional interest rate of 2.00% per annum which interest shall be
calculated by the Company and certified to the Trustee) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. The Company will pay
interest semiannually in arrears on February 15 and August 15 of each year,
commencing August 15, 2002. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from February 15, 2002. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The Company will pay interest on overdue
principal at the rate borne by the Securities plus 1% per annum, and it will pay
interest on overdue installments of interest at such higher rate to the extent
lawful.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the February 1 or August 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will 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. Payments in respect of the Securities represented by a
Global Security (including principal, premium, if any, and interest) will be
made by wire transfer of immediately available funds to the accounts specified
by The Depository Trust Company. The Company will make all payments in respect
of a certificated Security (including principal, premium, if any, and interest)
by mailing a check to the registered address of each Holder thereof; PROVIDED,
HOWEVER, that payments on a certificated Security will be made by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such account no
later than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, State Street Bank and Trust Company (the "Trustee") will
act as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
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4. Indenture
---------
The Company issued the Securities under an Indenture dated as of
February 15, 2002 ("Indenture"), among the Company, the Guarantors and the
Trustee. 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.C. ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Securityholders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are general obligations of the Company, except to the
extent of the limited security interest in the Intercompany Note Obligations.
The Company shall be entitled, subject to its compliance with Section 4.03 of
the Indenture, to issue Additional Securities pursuant to Section 2.13 of the
Indenture. The Initial Securities issued on the Issue Date, any Additional
Securities and all Exchange Securities or Private Exchange Securities issued in
exchange therefor will be treated as a single class for all purposes under the
Indenture. The Indenture contains covenants that limit the ability of GrafTech
International Ltd. (formerly known as UCAR International Inc.)("GrafTech
International") and its subsidiaries to incur additional indebtedness; pay
dividends or distributions on, or redeem or repurchase capital stock; make
investments; issue or sell capital stock of subsidiaries; engage in transactions
with affiliates; create liens on assets; transfer or sell assets; guarantee
indebtedness; restrict dividends or other payments of subsidiaries; allow the
Company to engage in certain businesses; consolidate, merge or transfer all or
substantially all of its assets and the assets of its subsidiaries; and engage
in sale/leaseback transactions. These covenants are subject to important
exceptions and qualifications.
5. Optional Redemption
-------------------
Except as set forth below, the Company shall not be entitled to redeem
the Securities at its option prior to February 15, 2007.
On and after February 15, 2007, the Company shall be entitled at its
option to redeem all or a portion of the Securities upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed in percentages of
principal amount on the redemption date), plus accrued and unpaid interest to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on February 15 of the years set
forth below:
Redemption
Period Price
------ -----
2007 105.125%
2008 103.417%
2009 101.708%
2010 and thereafter 100.000%
In addition, prior to February 15, 2005, the Company shall be entitled
at its option on one or more occasions to redeem Securities (which includes
Additional Securities, if any) in
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an aggregate principal amount not to exceed 35% of the aggregate principal
amount of the Securities (which includes Additional Securities, if any)
originally issued at a redemption price (expressed as a percentage of principal
amount) of 110.25%, plus accrued and unpaid interest to the redemption date,
with the net cash proceeds from one or more Public Equity Offerings; PROVIDED,
HOWEVER, that (1) at least 65% of such aggregate principal amount of Securities
(which includes Additional Securities, if any) remains outstanding immediately
after the occurrence of each such redemption (other than Securities held,
directly or indirectly, by the Company or its Affiliates); and (2) each such
redemption occurs within 60 days after the date of the related Public Equity
Offering.
6. 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 its registered address. Securities in denominations larger than $1,000
principal amount may be redeemed in part but only in whole multiples of $1,000.
If money sufficient to pay the redemption price of and accrued and unpaid
interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
7. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will have the right
to cause the Company to purchase all or any part of the Securities of such
Holder at a purchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders on the relevant record date to receive
interest due on the related interest payment date) as provided in, and subject
to the terms of, the Indenture.
Under certain circumstances as set forth in the Indenture, the Company
will be required to offer to purchase Securities with Excess Intercompany Note
Prepayment Proceeds.
8. Guaranty
--------
The payment by the Company of the principal of, and premium and
interest on, the Securities is fully and unconditionally guaranteed on a joint
and several senior unsecured basis by each of the Guarantors. In addition, the
Guarantee of UCAR Carbon is secured by a limited pledge of Pledged Graftech
Stock.
9. Pledges
-------
The Securities will be secured by a pledge of Intercompany Notes and
Intercompany Note Guaranties, subject to the limitations set forth in the
Indenture.
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10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in denominations
of $1,000 principal amount and whole multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer or exchange of any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
it for all purposes.
12. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company, the Guarantors and the
Intercompany Note Obligors at any time shall be entitled to terminate some or
all of their respective obligations under the Securities, the Indenture, the
Graftech Pledge Agreement, the Lien Subordination Agreement, the Intercompany
Notes and the Intercompany Note Guaranties if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company, the Guarantors and the
Trustee shall be entitled to amend the Indenture, the Graftech Pledge Agreement,
the Lien Subordination Agreement, the Intercompany Notes, the Intercompany Note
Guaranties or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add Guarantees or Intercompany Notes with respect to the Securities,
including Subsidiary Guaranties and Intercompany Note Guaranties, or to secure
the Securities, or to add covenants or surrender rights or powers conferred upon
the Company, any Guarantor or any Intercompany Note Obligor, or to comply with
any requirements of the SEC in connection with qualifying or
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maintaining the qualification of the Indenture under the TIA, or to make changes
to the Intercompany Notes or the Intercompany Note Guaranties, as applicable,
permitted under the terms thereof or to make any change that does not adversely
affect the rights of any Securityholder.
15. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest on the Securities; (ii) default in payment of principal
on the Securities when the same becomes due at the Stated Maturity, upon
redemption pursuant to paragraph 5 of the Securities, upon declaration of
acceleration or otherwise, or failure by the Company to purchase Securities when
required; (iii) failure by the Company, any Guarantor or any Intercompany Note
Obligor to comply with other agreements in the Indenture or the Securities, in
certain cases subject to notice and lapse of time; (iv) certain accelerations
(including failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Guarantor if the amount accelerated (or so
unpaid) exceeds $10.0 million; (v) certain events of bankruptcy or insolvency
with respect to the Company, any Guarantor and the Significant Subsidiaries;
(vi) certain judgments or decrees for the payment of money in excess of $10.0
million, (vii) certain defaults with respect to Guaranties, Intercompany Notes
or Intercompany Note Guaranties; and (viii) certain defaults relating to the
security interests in the Graftech Pledged Stock, the Intercompany Notes and the
Intercompany Note Guaranties, or any prepayments with respect to the
Intercompany Notes except as permitted under Article 11 of the Indenture. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the Securities
to be due and payable immediately. Certain events of bankruptcy or insolvency
are Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in principal amount
of the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Securityholders notice of any continuing Default
(except a Default in payment of principal or interest on any Security) if it
determines that withholding notice is in the interest of the Holders.
16. Trustee Dealings With the Company
---------------------------------
Subject to certain limitations imposed by the TIA and the Indenture,
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 GrafTech
International or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the Company,
any Guarantor, any Intercompany Note Obligor or the Trustee shall not have any
liability for any obligations of the Company, any Guarantor or any Intercompany
Note Obligor under the
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Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
18. Authentication
--------------
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
20. CUSIP Numbers and ISINs
-----------------------
The Company has caused CUSIP numbers and corresponding ISINs to be
printed on the Securities and has directed the Trustee to use CUSIP numbers and
corresponding ISINs in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
21. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in it
the text of this Security in larger type. Requests may be made to:
UCAR Finance Inc.
c/o GrafTech International Ltd.
Brandywine West
1521 Concord Pike, Suite 301
Wilmington, Delaware 19803
Attention: Director of Investor Relations
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______________________________________________________________________________
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
______________________________________________________________________________
Date: ________________ Your Signature: _________________________________
Sign exactly as your name appears on the other side of this Security.
______________________________________________________________________________
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Signature of
Amount of decrease Principal amount of authorized officer
in Principal amount Amount of increase in this Global Security of Trustee or
Date of of this Global Principal amount of this following such Securities
Exchange Security Global Security decrease or increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Sections 4.06, 4.09 or 11.03 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Sections 4.06, 4.09 or 11.03 of the Indenture, state the
amount in principal amount: $
Date: _______________ Your Signature: ________________________
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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